Dismissed

Shrishailappa S/O.Channabasappa Challageri v. the State of Karnataka

Karnataka HC12 Sept 2023CRL.RP/100160/2021

Case brief

AI extract

What is this about?

The Court dismissed a Criminal Revision Petition challenging the confiscation of a vehicle used for illegal liquor transportation. The Court upheld the lower courts findings that Section 54 of the Karnataka Excise Act was complied with and the petitioner failed to prove lack of involvement.

What did the court decide?

The petition filed by the petitioner is dismissed. The impugned orders of conviction and confiscation are confirmed.

Shrishailappa S/O.Channabasappa Challageri Vs the State… — Narcotics (NDPS) | Karnataka HC (2023)

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CRL.RP NO.100160/2021

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON’BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL REVISION PETITION No. 100160 OF 2021

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BETWEEN :

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SHRISHAILAPPA S/O. CHANNABASAPPA CHALLAGERI AGED ABOUT 59 YEARS, OCC: LIC AGENT AND EX-SERVICEMAN, R/O: 230/22, CHALAGERI LAYOUT, VEERESWAR NAGAR, MULAGUND ROAD, GADAG-582103

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...PETITIONER

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(BY SRI. SANTOSH B. MANE, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY INSPECTOR OF EXCISE, SUB-DIVISION DHARWAD, REPRESENTED THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BENCH AT DHARWAD.

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THE AUTHORISED OFFICER, DEPUTY COMMISSIONER OF EXCISE, NAVANAGAR, DHARWAD-580025.

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…RESPONDENTS

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(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1 & R2)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1) R/W 401 OF CR.P.C., SEEKING TO CALL FOR THE LOWER COURT RECORDS, PERUSE THE SAME AND SET ASIDE THE JUDGEMENT AND ORDER OF CONVICTION DATED 17/02/2021 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, DHARWAD, IN CRIMINAL APPEAL NO.64/2018 CONFIRMING THE ORDER OF THE AUTHORIZED OFFICER, DEPUTY COMMISSIONER OF EXCISE

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CRL.RP NO.100160/2021

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DHARWAD DISTRICT DATED 03/11/2015 ORDER OF CONFISCATION OF PETITIONERS VEHICLE IN CASE NO.9/201516.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 05.09.2023 , COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner, who is the registered owner of Maruti

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Wagnor bearing Registration No.KA–26/M–4489, (‘vehicle in question’, for short) has filed this petition under Section 397(1) read with Section 401 of Code of Criminal Procedure (‘Cr.P.C.’ for short), challenging the impugned order passed by the Principal District and Sessions Judge, Dharwad/Appellate Authority, rejecting the appeal filed by him and confirming the orders passed by the Authorised Officer/Deputy Commissioner of Excise, Dharwad confiscating the vehicle in question.

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In support of his petition, the petitioner has

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contended that the impugned judgment and order is, neither sustainable in law, nor on facts and liable to be set aside. The Appellate Authority has not appreciated that the

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CRL.RP NO.100160/2021

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Authorised Officer has relied upon the testimony of PWs.2 and 3, which is contradicting the evidence of PW1. Both the Authorised Officer and Appellate Authority have not properly appreciated the oral and documentary evidence placed on record. The Appellate Authority has not appreciated the citations relied upon by the petitioner and there is no judicial application of mind and prays to allow the petition and set aside the orders of the Appellant Authority and the Authorised Officer and release the vehicle in question to the custody of petitioner.

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In support of his arguments, the learned counsel

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for the petitioner has relied upon the following decisions.

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i) L. Srinivas Vs. The Authorised Officer & Superintendent of Excise ( L.Srinivas )¹

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ii) K.L.Subbayya Vs. State of Karnataka ( K.L.Subbayya )²

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1 ILR 1999 KAR 2872

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2 1979 (1) Kar.L.J. 411

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CRL.RP NO.100160/2021

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On the other hand, the learned High Court

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Government Pleader supported the impugned judgment and order and prays to dismiss the petition.

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Heard arguments of both sides and perused the

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record.

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The brief facts leading to filing of the present

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petition are that on 3.11.2015, on receipt of credible information that some persons are transporting liquor illegally in a vehicle coming from Belagavi side towards Dharwad side, the Excise Inspector, Dharwad Subdivision, Dharwad along with his Subordinates and witnesses kept a watch concealing their presence. At about 2.00 p.m., the vehicle in question came on the said road and on being indicated, the driver stopped it. It was driven by accused No.1, who is no other than the brother of the petitioner. Accused No.2-Keshav Naik was in the front passenger seat.

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The Excise Inspector prepared a report as per

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Section 54 of the Karnataka Excise Act (‘the Act’ for short),

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CRL.RP NO.100160/2021

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and searched the vehicle, in the presence of his subordinates and panchas. 179.250 litres of whiskey of different brands was found in the vehicle in question. The same was seized through mahazar. Accused Nos.1 and 2 along with the seized liquor and vehicle were taken to the Excise Office. A report was submitted and on the basis of it, case was registered in Crime No.9/2015–16 for the offences punishable under Sections 32 and 34 of the Act. Seizure of the vehicle was reported to the Authorised Officer/Deputy Commissioner and criminal side investigation was completed and charge-sheet is filed.

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Petitioner who is the RC holder filed application under Section 43A of the Act. In the light of the objections filed by the prosecution, enquiry was held, wherein evidence was led by both parties. Appreciating the oral and documentary evidence placed on record by both parties, the Authorised Officer/Deputy Commissioner rejected the claim of the petitioner.

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CRL.RP NO.100160/2021

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Aggrieved by the same, the petitioner approached the Appellate Authority/Principal District and Sessions Judge, Dharwad. Vide the impugned judgment and order, the appeal filed by the petitioner was dismissed, confirming the orders passed by the Authorised Officer/Deputy Commissioner.

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Being aggrieved by the same, the petitioner is before this Court. Learned counsel for the petitioner submitted that before intercepting the vehicle and seizing the liquor found in the said vehicle, the Investigating Officer has not complied with the requirements of Section 54 of the Act. On the other hand, he supported the impugned orders by wrongly holding that looking to the urgency of the matter, wherein the Investigating Officer received credible information regarding illegal transportation of liquor in the vehicle in question, the Investigating Officer has reduced into writing the reasons for believing that an offence under the provisions of Excise Act is being committed and there is substantial compliance.

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CRL.RP NO.100160/2021

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Section 53 of the Karnataka Excise Act makes provision for the Magistrate to issue a search warrant, wherein he has reason to believe that an offence under Sections 32, 33, 34 and 36 or 37 has been or, is being or likely to be committed. However, Section 54 makes provision for cases where there is urgency and the Investigating Officer cannot wait without the risk of allowing the culprit to escape and conceal the evidence, while securing a search warrant from the Magistrate. In such an eventuality, the Investigating Officer is required to record the reasons i.e., the grounds for urgency in not securing the search warrant and proceed to search the premises or arrest the accused as the case maybe.

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Having regard to the fact that the officer has received credible information when he was on patrol duty, immediately he has secured the witnesses and waited. As soon as the vehicle came, it was intercepted. Immediately he has recorded the reasons or the grounds for not securing the warrant and proceeded to search the vehicle. Upon search,

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CRL.RP NO.100160/2021

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the Investigating Officer has found liquor being illegally transported. Admittedly, accused Nos.1 and 2 who were transporting the liquor had no licence, permit or pass. They have not given any justifiable reasons for transporting the same. Accordingly, the Investigating Officer has seized the liquor, through mahazar and took the accused persons along with seized liquor and vehicle to the Excise Station and submitted report based on which a case was registered and further investigation was taken up.

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In fact before the Authorised Officer evidence is

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lead which proves the fact that liquor was being transported illegally in the said vehicle. Though the petitioner has examined himself as DW1 and also examined accused No.1 as DW2, he has failed to prove that the vehicle was not used for carrying liquor or that it was being carried without his knowledge or connivance and that he had taken all reasonable and necessary precaution against such use. The evidence led by the petitioner before the Authorised Officer is that at the relevant point of time, when the vehicle was

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CRL.RP NO.100160/2021

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intercepted and unauthorized liquor was found, he was admitted to the hospital for treatment. Having regard to the fact that the liquor was being transported by his own brother (accused No.1), the petitioner is not having any plausible explanation. Despite giving evidence, accused No.1 has also not come up with any justifiable reasons for transporting the liquor in question without any pass, permit or licence.

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In L. Srinivas , the Investigating Officer failed to

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record the grounds on the basis of which he entertained a belief that offence under the Act was being committed and there was also a delay of six days in producing the seized vehicle before the Authorised Officer. However this decision is not applicable to the case on hand. Similarly, in K.L. Subbayya also, the Investigating Officer has failed to record any grounds on the basis of which he had a reasonable belief that offence under the Act was committed and therefore the Hon’ble Supreme Court held that the entire search and seizure is vitiated. It is not the situation in the present case. In fact, after considering the oral and documentary evidence

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CRL.RP NO.100160/2021

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placed on record, both Authorised Officer and the Appellate Authority have rejected the claim of the petitioner. Absolutely, there are no justifiable grounds to interfere with the impugned judgment and order. In the result, the petition fails and accordingly, the following:

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ORDER

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The petition filed by the petitioner is dismissed.

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The impugned judgment and order dated 17.02.2021

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passed in Crl.Appeal No.64/2018 by the Principal District and Sessions Judge, Dharwad and the order of confiscation dated 03.11.2015 in Case No.9/2015-16 by the Authorised Officer, Deputy Commissioner of Excise, Dharwad are confirmed.

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SD/JUDGE

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KGK CT-AK

Shrishailappa S/O.Channabasappa Challageri v. the State of Karnataka

Case brief

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Shrishailappa S/O.Channabasappa Challageri v. the State of Karnataka

Case brief

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