Allowed

State by the Deputy Commissioner of Excise Mandya District v. Raju M P

Karnataka HC23 Sept 2022CRL.RP/591/2021

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a criminal revision petition filed by the State challenging an order that replaced a statutory bank guarantee requirement with an indemnity bond for releasing seized liquor vehicles. The Court held the appellate court erred in ignoring the specific legislative mandate and modified the order to confirm the original bank guarantee condition.

What did the court decide?

The order dated 13.11.2020 modifying the bank guarantee is set aside; the order dated 01.10.2020 imposing the bank guarantee is confirmed.

State by the Deputy Commissioner of Excise Mandya… — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE S. RACHAIAH

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CRIMINAL REVISION PETITION No.591/2021

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BETWEEN:

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STATE BY THE DEPUTY COMMISSIONER OF EXCISE MANDYA DISTRICT, MANDYA REPTD. BY STATE OF KARNATAKA STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001.

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...PETITIONER

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(BY SRI MAHESH SHETTY, HCGP)

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AND:

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RAJU M.P. S/O PUTTASWAMY AGED ABOUT 30 YEARS R/AT MATADADODDI VILLAGE C.A. KERE HOBLI, MADDUR TALUK MANDYA DISTRICT – 571 401.

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…RESPONDENT

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(BY SRI HARIPRASAD M.B., ADVOCATE)

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THIS CRIMINAL REVISION PETITION FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 13.11.2020 PASSED IN CRL.A.NO.71/2020 PASSED BY THE LEARNED IV ADDL. DISTRICT AND SESSIONS JUDGE, MANDYA ALLOWING THE APPLICATION FILED UNDER SEC.457 AND 451 OF CR.PC.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 13.09.2022, COMING ON FOR

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PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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This Criminal Revision Petition is filed by the State seeking to set aside the order dated 13.11.2020 passed in Crl.A.No.71/2020 on the file of the IV Additional District and Sessions Judge, Mandya, wherein the Appellate Court modified and set aside the Bank Guarantee imposed by the Deputy Commissioner of Excise by his order dated 01.10.2020 while releasing the I-20 Car bearing No.K-11N-2893 directing the owner of the vehicle to furnish Bank Guarantee for a sum of Rs.5,00,000/-.

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It is the case of the Revision Petitioner that, on 17.05.2020 at about 5.00 p.m., near Golden Traders situated at K.M.Doddi Town, Mandya District, on credible information received by the complainant - the Excise Inspector of Maddur Zone intercepted the vehicle and found that the said vehicle was carrying 69.120 liters of liquor. Case has been registered against the owner of the vehicle and the said vehicle was seized and confiscation

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proceeding was held by the Deputy commissioner of exercise.

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The owner of the said vehicle filed necessary application before the Deputy Commissioner of Excise seeking release of the said vehicle. The Deputy Commissioner by order dated 01.10.2020 passed an order to release the vehicle by taking the Bank Guarantee for a sum of Rs.5,00,000/- to be paid to the Authority. The petitioner/owner being aggrieved by the said order has preferred an appeal stating that the said order of imposition of Bank Guarantee is unreasonable and unsustainable and hence, he sought to set aside the Bank Guarantee and further sought modification of the order.

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The State represented by learned Public Prosecutor vehemently opposed before the Appellate Court by filing detailed objections. However, the Appellate Court allowed the appeal filed by the appellant and modified the order. In the said order, the Appellate Court ordered the appellant to execute indemnity bond instead of bank

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guarantee. The State being aggrieved by the said order passed by the Appellate Court, preferred this Revision petition seeking to set – aside the order passed by the Appellate Court.

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Heard Sri.Mahesh Shetty, learned HCGP appearing on behalf of State/petitioner and Sri.Hariprasad, learned counsel for the respondent.

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It is the submission of learned HCGP that the Karnataka Excise Act stipulated conditions while releasing the vehicle, wherein imposition of Bank Guarantee to release the seized vehicle is also one of such conditions which has been statutorily recognized under the Act.

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The Learned HCGP further submits that, the scope and ambit of the provision should be protected while exercising the discretionary power. The power exercised by the Appellate Court is arbitrary and without application of mind, hence, it is liable to set – aside.

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Per contra, the learned counsel for the respondent vehemently argued that the Appellate Court being a Sessions Court rightly exercised the discretionary power and modified the condition. It is further submitted by the learned counsel that the order passed by the Appellate Court contains no illegality, perversity; hence, interference by this Court is not warranted. Thus, the learned counsel sought to dismiss the petition filed by the petitioner.

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In support of his argument, he relied upon the judgment of the Hon’ble Supreme Court in the case of Sunder Bhai Ambalal Desai v. State of Gujarat¹ and K.Ravindra Malya v. State of Karnataka²

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After having heard the rival contentions urged by the learned counsel for the respective parties, the questions which arise for my consideration are,

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1 (2002) 10 SCC 283

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2 2003 AIR Kant R 2977

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1. Is there any illegality, perversity in the order passed by the Appellate Court?

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2. Whether the petitioner made out grounds

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to interfere with the said order?

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Before adverting to the other facts of the case, it is relevant to refer the provisions under Section 43-A(2) of the Karnataka Excise Act which reads as under:

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“ 43-A(2). On production of the seized property under sub-section (1), the authorised officer, if satisfied that an offence under this Act has been committed may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property: [Provided that the authorised officer may pending final disposal of the proceedings in respect of the property seized under sub-section (1) and subject to this section and sections 43B to 43G,-

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(i) release the seized property except excisable articles to the owner of such property;

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(ii) release the seized excisable articles to their owner if he possesses a licence under the Act or the rules made thereunder;

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on production of a Bank Guarantee issued from a Scheduled Bank for a sum equal to the value as estimated by the authorised officer, (which shall be renewable by him from time to time till final disposal of such proceeding) and on execution by the owner thereof a bond for production of such property or as the case may be, excisable articles so released, if and when so required, before the authorised officer.]

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It is relevant to note that the Karnataka Excise Act conferred the Authorized Officer to confiscate the property/ vehicle involved in the offences made out under the Excise Act. It is also relevant to mention that Section 43-A(2) proviso conferred the power to release the seized property to interim custody, pending final disposal of the confiscation proceedings in respect of the seized properties.

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On perusal of the order of the Appellate Court, it appears that the condition imposed by the Deputy Commissioner of Excise has been modified and directed the owner of the vehicle to execute the indemnity bond

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and a surety for like sum instead of Bank Guarantee. There are no valid reasons assigned by the Appellate Court to arrive at such conclusions. Courts are required to pass an order in consonance with the provisions of the Act especially while dealing with special Act. The legislature while enacting the provision thought it appropriate to impose bank guarantee to release the vehicle to the interim custody of the owner. The intention and ambit of the legislature should be protected as long as such provision of law enacted by them is held to be unconstitutional.

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It is also relevant to mention here that the discretionary power of the Courts should be exercised in judicial proceedings sparingly with caution. In other words, it should be exercised judiciously with great circumspection. Now, it is relevant to mention that the nature of the judicial process according to “Bejamin Cardozo” the Judge, even when he is free, is still not wholly free. He is not to innovated pleasure. He is not a

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knight-errant roaming at will in pursuit his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and sub ordinate to the primordial necessity of order in the social life. The judicial discretion should always be exercised according to the rules of reason and justice and not according to the individual opinion. Hence, the order of the Appellate Court is contrary to the law and provision and the approach adopted by the Appellate Court is erroneous. Therefore, the order passed by the Appellate Court is liable to be set – aside.

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With the above said observation, I proceed to answer the points which arose for my consideration as Point No.1 in the affirmative holding that, the order of the Appellate Court is erroneous and liable to be set – aside. Point No.2 in the affirmative holding that, the Petitioner – State made out grounds to interfere in the matter.

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10 -

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In the light of the observation, I proceed to pass the following:

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ORDER

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The criminal revision petition is allowed.

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The order dated 13.11.2020 passed in Crl. A No.71/2020 on the file of IV Additional District and Sessions Judge, Mandya with regard to modification of Bank Guarantee is set aside.

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The Order of the Deputy Commissioner of Excise dated 01.10.2020 is confirmed.

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Sd/JUDGE

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State by the Deputy Commissioner of Excise Mandya District v. Raju M P

Case brief

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What did the court decide?

State by the Deputy Commissioner of Excise Mandya District v. Raju M P

Case brief

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