Allowed

Mallappa S/O Hanumanthappa Tinkapur, v. the Authorised Officer and

Karnataka HC11 Aug 2023CRL.RP/100030/2017

Case brief

AI extract

What is this about?

High Court allowed a criminal revision petition set aside orders confiscating an autorickshaw for illegal arrack possession. Found violations of search procedures, lack of magistrate permission, and non-compliance with seizure timelines under the Excise Act and Cr.P.C. since conviction was also disputed in criminal trial.

What did the court decide?

Impugned orders of confiscation and dismissal of criminal appeal set aside; trial court records remanded; interim vehicle release made absolute.

Mallappa S/O Hanumanthappa Tinkapur, Vs the… — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC-D:9532 CRL.RP No. 100030 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL REVISION PETITION NO. 100030 OF 2017 (397)

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BETWEEN:

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MALLAPPA S/O. HANUMANTHAPPA TINKAPUR, AGE: 38 YEARS, OCC: AUTO DRIVER, R/O: KURUBAGONDA, TQ AND DIST: HAVERI. …PETITIONER

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(BY SRI SHIVASAI M. PATIL, ADVOCATE)

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AND:

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THE AUTHORISED OFFICER AND DEPUTY COMMISSIONER OF EXCISE HAVERI, DISTRICT: HAVERI-581110.

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THE STATE OF KARNATAKA, REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, DHARWAD.

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ROHAN HADIMANI T

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Digitally signed by ROHAN HADIMANI T Date: 2023.09.14 10:28:43 +0530

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…RESPONDENTS

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(BY SRI PRAVEEN UPPAR, HCGP, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 (1) READ WITH 401 OF CR.P.C., SEEKING TO CALL FOR LOWER COURT RECORDS AND SET ASIDE THE JUDGMENT AND ORDER DATED 29.09.2016 PASSED BY THE I ADDL. SESSIONS JUDGE, HAVERI IN CRIMINAL APPEAL NO.98 OF 2015 AND THE ORDER BEARING NO. EXE/CON/ DTCR/5/2011-12 DATED 31.08.2015 IN HAVERI SPECIAL EXCISE AND LOTTERY SQUAD POLICE STATION CRIME NO. 55 OF 2011 PASSED BY THE AUTHORIZED OFFICER AND DEPUTY

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NC: 2023:KHC-D:9532 CRL.RP No. 100030 of 2017

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COMMISSIONER OF EXCISE, HAVERI PRODUCED AT ANNEXURE A & B respectively.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is against the order passed by the Authorised Officer and Deputy Commissioner of Excise, Haveri District (hereinafter referred to as the ‘Authorised Officer’) vide order No.EXE/CON/DTCR/8/21112 dated 31.08.2015 as to the confiscation of the autorickshaw bearing Regn.No.KA-27/A-6902 which was involved in the possession of the illegal arrack. Being aggrieved by this order passed by the Authorised Officer,

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the revision petitioner has preferred Criminal Appeal No.98/2015 before the I Additional District & Sessions Judge, Haveri (hereinafter referred to as the ‘First Appellate Court’) and the same came to be dismissed on 29.09.2016. Against the said order, this revision petition is filed.

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Heard learned counsel for the revision

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petitioner and the learned HCGP for the respondents.

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Sri. Shivasai M.Patil, learned counsel for the revision petitioner has submitted his arguments that both the impugned orders are liable to be set aside, as they are not in accordance with the provisions of the Karnataka Excise Act, 1965 (for short, the ‘Act’). The complaint averments are very doubtful because, though sufficient time was available, no search warrant is taken to search the house or the vehicle. The original panchnama is not produced before the Authorised Officer on the very same day or registered the case. The seizure panchas have not supported the case of the prosecution and the respondents have not proved their seizure. The Authorised Officer has also failed to see that, by an order passed by it, the interim custody of the vehicle was given to the petitioner by stipulating some conditions.

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Further, is submitted that the accused is

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already acquitted by the Jurisdictional Magistrate in

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C.C.No.331/2012 as per the judgment dated 04.01.2019,

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the prosecution has not preferred any appeal against the judgment of acquittal. On all these grounds, sought for allowing the revision petition.

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Sri. Praveen Uppar, learned HCGP for the respondents has submitted his arguments that the order passed by both Authorised Officer and the First Appellate Court are in accordance with law. There are no grounds to interfere with the orders impugned. On all these grounds, sought for dismissal of the revision petition.

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Having heard the arguments and on perusal of the records, the following point would arise to my consideration:

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Whether the revision petitioner has made out

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any ground to interfere with the judgments passed by the Authorised Officer & Deputy Commissioner of Exise, Haveri and the First Appellate Court?

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NC: 2023:KHC-D:9532 CRL.RP No. 100030 of 2017

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My answer to the above point is in the

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Affirmative for the following:

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REASONS

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Before appreciating the evidence on record, it is necessary to mention here as to the decision of the Coordinate Bench of this Court in the case of L. SRINIVAS

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VS. THE AUTHORISED OFFICER & SUPERINTENDENT OF

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EXCISE reported in ILR 1999 KAR 2872 . In para Nos.3 to 6 of the said order it is observed as under:

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“3. The learned Counsel for the petitioner at the very outset submitted that the prosecution has not taken prior permission from the magistrate to search and seize the vehicle. There is no reason mentioned by the prosecution to seize the vehicle without the prior permission of the magistrate. Therefore, he submitted on that ground itself, the seizure of the vehicle is invalid. To substantiate his argument, he has drawn by attention to the decision rendered by their Lordships of the Supreme Court reported in K.L. SUBBAYYA vs STATE OF KARNATAKA wherein Their Lordships have held;

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"The inspector of Excise who searched the car of the appellant had not made any record of any ground on the basis of which he had a

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reasonable belief that an offence under the Act was. being committed, before proceeding to search the car and thus the provisions of S. 54 were not complied with.

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Held, this rendered the entire search without jurisdiction and vitiated the conviction. Sections 53 & 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecutions or harassment.

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The definition of the word 'place' under the Act included vehicles which could include a car.

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In this case, from the perusal of the seizure mahazar or other records, there is nothing to indicate that the Investigating Officer has mentioned any reasons to search and seize the vehicle without prior permission of the Magistrate. Admittedly, there is no prior permission of the Magistrate to search and seize the vehicle. Under the circumstances of the case, the decision rendered by Their Lordships referred to above is squarely applicable to the facts of this case.

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4. The learned Counsel for the petitioner has also drawn my attention to Section 43-A of the K.E. Act wherein it is stated as soon as the vehicle is seized, it shall be produced before the authorised officer but in this case, though the vehicle was seized on 1.3.94 the same was kept with him till 6.3.94. On 3.3.94 a request was made to the authorised officer seeking

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permission to produce the vehicle. Though that permission was given on 3.3.94, the same was produced before him on 6.3.94. Thus there is a delay which has not been explained and it is also not in consonance with the requirement of Section 43-A of the Act.

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5. Besides that from the perusal of the evidence, it is clear that the complaint was lodged by a person who was inimical towards the petitioner herein. This incident occurred during the general elections and it is also alleged that the liquor was being transported for the purpose of giving it to the voters, etc. Under those circumstances, it required cogent and convincing evidence to establish that this petitioner was transporting liquor without permit and that the seizure was done in accordance with law.

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6. The learned Counsel for the petitioner further argued that there is nothing to indicate the involvement of the owner of the vehicle. However, that question need not be delved upon at this stage as this petition will have to succeed on the other grounds mentioned above.

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7. For the foregoing reasons this petition is allowed and the impugned order is set aside. The petitioner is entitled for the return of the vehicle. The vehicle has already been given to the interim custody of the petitioner and he shall hold the same absolutely.”

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In the case on hand, the Special Excise Officer,

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Haveri has registered the case against the accused Mallappa for the offence punishable under Sections 32, 34 and 38A of the Karnataka Excise Act, 1965 and under Section 328 of the Indian Penal Code and after investigation, the IO has submitted the charge sheet against the accused for the commission of offence punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 and under Section 273 of the Indian Penal Code. The JMFC, Haveri has taken cognigence against the accused and the case was registered in C.C.No.331/2012 and after trial, the JMFC, Haveri has

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acquitted the accused as per the judgment dated 04.01.2019. The Investigating Officer (IO) has seized the properties on 16.09.2011 under PF.No.58/2011. However, he has not submitted the same to the Jurisdictional Magistrate as required under Section 102 of the Code of Criminal Procedure, 1973 (for short, the ‘Cr.P.C.’) same is also not submitted to the Authorised Officer as required

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under Section 43A of the Karnataka Excise Act, 1965 without any reasonable delay.

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In the case on hand, the PF.No.58/2011 reveals

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that the Authorised Officer cum Deputy Commissioner, Excise has put his signature as “permitted”, but he has not mentioned any date. Accordingly, the prosecution has failed to prove as to the compliance of mandatory provisions to Section 43A of the Act.

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PW1 and PW2 Sri. Dharmappa K.Baligar the Inspector of Police, Haveri Police Station has not deposed anything as to the compliance of mandatory provisions of Section 43A of the Act and also Section 102 of the Cr.P.C.

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PW3Mallanagoud S.Hosamani and PW4Satish G.Talwar said to be the attesting witnesses to the Mahazar have not supported to the case of the prosecution and even in their cross-examination, the prosecution has not elicited any favourable answers from them to substantiate the case of the prosecution.

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The prosecution has not complied the

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mandatory provision of Sections 53 and 54 of the Act which are also fatal to the case of the prosecution. Viewed from any angle, the impugned orders passed by both Court are not sustainable under law. Both the Courts have failed to appreciate the evidence on record in accordance with law and facts. Both the Courts have ignored the mandatory provisions under Sections 43A, 53 and 54 of the Act and Section 102 of Cr.P.C. For the aforesaid reasons and discussions, I answer the above point in the affirmative and proceed to pass the following:

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ORDER

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(i) The appeal is hereby allowed .

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(ii) The impugned orders dated 31.08.2015 passed vide order No.EXE/CON/DTCR/8/2011-12 on the file of the Authorised Officer and Deputy Commissioner of Excise, Haveri and the order dated 29.09.2016 passed in Criminal Appeal No.98/2015 on the file of the I Additional District & Sessions Judge, Haveri are set aside.

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