Dismissed

State of Karnataka v. S C Jayanna

Karnataka HC11 Apr 2022CRL.P/7393/2020

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed the criminal petition filed by the State under Section 482 of the CrPC, upholding the Session Judge's order that released a seized vehicle. The Court found merit in the lower court's finding that the search was without jurisdiction and confiscation proceedings were violated.

What did the court decide?

Criminal petition dismissed; order directing grant of interim custody of vehicle to respondent upwards.

State of Karnataka Vs S C Jayanna — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF APRIL, 2022 BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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CRIMINAL PETITION No.7393 OF 2020

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BETWEEN:

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STATE OF KARNATAKA BY AUTHORIZED OFFICER AND DEPUTY COMMISSIONER OF EXCISE CHIKMAGALUR REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001.

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... PETITIONER

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(BY SRI SHANKAR H.S., HCGP)

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AND:

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S.C.JAYANNA @ KOLLEGOWDA S/O CHANNAPPA GOWDA AGED ABOUT 55 YEARS, AGRICULTURIST R/O SUTTA VILLAGE N.R.PURA TALUK CHIKKAMAGALURU DISTRICT – 577 101.

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... RESPONDENT

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 04.10.2018 IN

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CRL.A.NO.79/2017 PASSED BY THE I ADDITIONAL DISTRICT AND SESSION JUDGE, CHIKKAMAGALURU.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The State has preferred the subject petition calling in question order dated 4-10-2018 passed by the I Additional Sessions Judge at Chikmagalur in Criminal Appeal No.79 of 2017 whereby the learned Sessions Judge has directed grant of interim custody of the vehicle to the hands of the respondent.

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Heard Sri H.S.Shankar, learned High Court Government Pleader appearing for the petitioner.

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Sans details, brief facts are as follows:

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On 17-08-2013 at about 11.45 a.m. on receipt of credible information that illicit liquor was being transported in a motor cycle, the motor cycle was intercepted and it was claimed that it was carrying illicit liquor and on enquiry, it is further alleged that the accused had admitted that he has transported it illegally without having any licence or permit. Therefore, a case comes to be

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registered in Crime No.124 of 2013 for offences punishable under Sections 11 and 34 of the Karnataka Excise Act and the vehicle involved in the offence comes to be seized. The respondent/appellant files an appeal before the learned Sessions Judge in Criminal Appeal No.79 of 2017. The learned Sessions Judge by his order dated 4-10-2018 allows the appeal filed by the respondent following plethora of judgments rendered by this Court. It is this order passed by the learned Sessions Judge that is called in question in the subject petition.

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The learned High Court Government Pleader would contend that the vehicle ought not to have been released as it was the vehicle that was carrying illicit liquor and there was admission on the part of the accused. Interference is sought at the hands of this Court to the order passed by the learned Sessions Judge.

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I have given my anxious consideration to the submissions made by the learned High Court Government Pleader and perused the material on record.

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The afore-narrated facts of confiscation of the vehicle and registration of crime are not in dispute. It is germane to notice the order that is passed by the learned Sessions Judge for driving at a conclusion for release of the vehicle and it reads as follows:

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“….

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12. The entire confiscation proceeding depends on the evidence of P.Ws.3 and 4. P.W. 4 the Investigating Officer has testified regarding seizure of the vehicle and securing the accused. It is pertinent to note that no search warrant was obtained before stopping the accused. Ofcourse Section 54 of Karnataka Excise Act empowers the police and excise officials to conduct a search without warrant in emergent situations. But in such an event, they are they are required to prepare a report regarding the grounds for their belief regarding the commission of the offence. But in this case no such report is prepared to conduct the search without a warrant. This itself vitiate the proceedings.

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13. The seized articles are to be produced before the Authorized Officer at the earliest under section 43A of the Karnataka Excise Act. But in this case there is no evidence to show that the seized articles were produced before Authorized Officer or if they were produced at all. According to P.W.4, he has handed over the seized vehicle and liquor to the Investigating Officer. He does not speak regarding the compliance of section 43-A. According to P.W. 3 Laxmikantharaja Aras, the seized vehicle and liquor were not handed over to him and he has no idea of their production before the authorised officer. Therefore there is no evidence to show that the seized vehicle and the liquor were ever produced before the Authorized Officer as per law. This also defeats the confiscation proceedings.

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14. It is pertinent to note that only random samples were sent for F.S.L. examination. Which means, the contents of other packets may or may not have been intoxicants. Admittedly there is a permissible quantity for each kind of intoxicant. This

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quantity varies from liquor to liquor. Therefore it was absolutely essential for the Authorized Officer to ascertain what was the intoxicant contained in the seized articles and whether they were one and same or they were all different categories. Since each category has its own permissible storage limit, this was absolutely essential before proceeding to confiscate the vehicle. But no such report has been received.

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15. In the decision reported in (2015) 323 ELT 86 between Authorised Officer and Dy.Commissioner of Excise Vs. Rangappa, the Hon'ble High Court of Karnataka has held that where the prescribed goods are not produced under Section 43A of Karnataka Excise Act before the Authorised Officer, the very initiation of the proceedings is illegal. Similarly in the present case, there is no material to show that the seized articles were produced before the Authorized Officer in compliance of Section 43A of Karnataka Excise Act. Hence the whole confiscation proceedings becomes vitiated. Therefore the above cited decision aptly applicable to the present case on hand.

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16. In the decision reported in 1979 AIR (SC) 711 between K.L.Subhayya Vs. State of Karnataka, the Hon'ble Supreme Court was pleased to hold that whether the safeguards mentioned in Section 53 and 54 are not complied with, the search becomes without jurisdiction. Even in the present case, there is nothing on record to show that the Investigating Officer has complied with the mandatory provision of Section 54. Therefore the search conducted in the present case is also without jurisdiction and the subsequent confiscation of the articles do not hold good.

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17. As discussed earlier, the material on record reflect that the search is without jurisdiction and it is in violation of Section 54 and 43A of Karnataka Excise Act. Therefore the subsequent confiscation of the vehicle bearing registration No. KA-18-R1483 of the appellant cannot be justified and is held to be illegal. Hence it is necessary to interfere with the orders of the lower court. Accordingly points No.1 and 2 are answered in the affirmative.”

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The learned Sessions Judge following the judgment rendered by this Court and that of the Apex Court holds that the search itself was without jurisdiction and is in violation of Sections 54 and 43A of the Karnataka Excise Act. Therefore, there cannot be any justification in confiscation of the vehicle in which the very search is held to be illegal. I do not find any merit to entertain the petition, particularly with the afore-quoted reasons rendered by the learned Sessions Judge.

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Petition lacking in merit stands dismissed.

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Sd/JUDGE

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bkp CT:MJ

State of Karnataka v. S C Jayanna

Case brief

What is this about?

What did the court decide?

State of Karnataka v. S C Jayanna

Case brief

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