Allowed

Dinesh Jyotiba Tonne v. State of Karnataka

Karnataka HC26 Nov 2024CRL.P/102164/2024

Case brief

AI extract

What is this about?

The petitioner sought quashing of FIR and proceedings for offences under the Karnataka Excise Act. The Court held that failure to obtain a search warrant or record reasons for warrantless search under Sections 53 and 54 vitiates the entire investigation, allowing the petition and quashing the proceedings.

What did the court decide?

FIR and proceedings in C.C. No.1209/2023 against the petitioner quashed.

Dinesh Jyotiba Tonne Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

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NC: 2024:KHC-D:17326 CRL.P No. 102164 of 2024

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 26^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION No. 102164 OF 2024

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BETWEEN:

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DINESH JYOTIBA TONNE S/O. JYOTIBA TONNE AGED ABOUT 29 YEARS R/AT NAVALIHAL KAGWAD TALUK BELGAUM DISTRICT KARNATAKA – 591 234.

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…PETITIONER

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(BY SRI VINOD N, ADVOCATE)

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AND:

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY KAGWAD PS-591 234. REP. BY ITS STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU – 560 001.

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H K NERALE PSI R/AT, KAGWAD POLICE KAGWAD TALUK BELGAUM DISTRICT KARNATAKA – 591 234.

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…RESPONDENTS

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(BY SRI JAYARAM SIDDI, HCGP)

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2 - NC: 2024:KHC-D:17326 CRL.P No. 102164 of 2024

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF Cr.P.C., SEEKING TO ALLOW THE CRIMINAL PETITION AND TO QUASH THE FIR AND PROCEEDINGS AGAINST THE PETITIONER I.E., ACCUSED No.2 IN CC No.1209/2023 I.E., CRIME No.106/2023 (ANNEXURE-A AND B) REGISTERED BY THE KAGWAD PS FOR THE OFFENCES PUNISHABLE U/S 32, 34 OF KARNATAKA EXCISE ACT-1965, PENDING ON THE FILE OF THE CIVIL JUDGE AND JMFC COURT, KAGWAD AND ETC.,

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

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR)

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On 09.06.2023, the respondents – police, on

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receiving the credible information that the accused were

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selling liquor in a public place, along with the police personnel and two panchas, went to the scene of occurrence and after noticing that the accused were found selling liquor to the general public, seized 84 tetra packs of 90 ml each, of Original Choice whisky found in possession of the accused persons by drawing panchanama. Thereafter, the respondents – police registered the F.I.R against the petitioner – accused No.2 and another ie.,

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3 - NC: 2024:KHC-D:17326 CRL.P No. 102164 of 2024

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accused No.1 for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 (for short hereinafter referred to as ‘the K.E.Act’) . The respondents – police, after investigation, filed the charge sheet against the petitioner – accused No.2 and another for the offences under Sections 32 and 34 of the K.E.Act. Taking exception to the same, this petition is filed.

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Learned counsel for the petitioner – accused No.2 would submit that the respondents – police without obtaining the search warrant or without recording the reasons in writing for not obtaining the search warrant as specified under Section 54 of the K.E.Act, has seized the liquor alleged to have been found in possession of the accused persons. He further submits that the learned Magistrate has not applied his judicious mind before taking cognizance of the offences alleged against the petitioner – accused No.2.

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On the other hand, learned High Court Government Pleader appearing for the respondents – State submits

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that having regard to the exigency of the situation, the respondents – police without obtaining the search warrant or without recording the reasons for not obtaining the search warrant, has seized the liquor in possession of the petitioner – accused No.2 and another. He further submits that the charge sheet material clearly discloses commission of the offences alleged against the petitioner – accused No.2 and another for the offences under Sections 32 and 34 of the K.E.Act.

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I have considered the submissions made by learned counsel for the petitioner – accused No.2 and learned High Court Government Pleader for the respondents - State.

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In Kiran, S/o Chikkappa Shinde Vs. The State of Karnataka in Crl.P.No.100168/2022 decided on

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16.03.2022 , the Co-ordinate Bench of this Court while quashing the proceedings of the similar case, has observed as under;

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5. The Hon’ble Apex court in the case of K.L.Subbayya V/s. State of Karnataka , reported

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NC: 2024:KHC-D:17326 CRL.P No. 102164 of 2024

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in (1979) 2 Supreme Court Cases 115 has held that the violation of sections 53 and 54 of the Karnataka excise Act, 1965 vitiates the entire investigation. It reads as follows:

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“3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section 54 were not at all complied with.

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4. This, therefore, renders the entire search without jurisdiction and, as a logical corrolary’, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from illfounded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With

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due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences. It was, however, suggested that the word “place” would not include the car, but the definition of the word “place” under the Act clearly includes a vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him.”

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6. On perusing of the above said authorities, it is crystal clear that Section 53 of the Act has to be complied. The warrant for search and seizure should be obtained for the offences punishable under Sections 32 and 34. It is only in the event of contingency, Section 54 provides for search and seizure by exercise officials without warrant to prevent the offender escaping or concealing the evidence that may be found against the accused.

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Whatever the information the Commissioner of Excise or Police Officer receives regarding commission of offences punishable under Sections 32 and 34 of the Act should be covered. If the procedure laid down under law is not followed then the entire investigation gets vitiated.

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7. In the present case, the police without obtaining the search and seizure warrant as specified under Section 53 or without recording any reason in writing for not obtaining the search warrant as specified under Section 54 of the Act, has seized the liquor from the petitioner, who is alleged to have been selling the same to the public in general without obtaining the licence under the provisions of the Karnataka Excise Act. Hence, the registration of the FIR culminating in filing of the charge sheet stands vitiated for non-compliance of Section 53 or 54 of the Karnataka Excise Act.”

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In the present case, the respondents – police without obtaining the search and seizure warrant as specified under Section 53 or without recording any reason in writing for not obtaining the search warrant as specified under Section 54 of the K.E.Act, has seized the liquor from the petitioner – accused No.2, who is alleged to have been

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selling the same to the public in general without obtaining

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the licence under the provisions of the K.E.Act. Hence, the registration of the F.I.R culminating in filing of the charge sheet stands vitiated for non-compliance of Section 53 or 54 of the K.E.Act. Considering the same, the criminal petition deserves to be allowed. Accordingly, I proceed to

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pass the following:

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ORDER

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The criminal petition is allowed . The impugned proceedings in C.C. No.1209/2023 pending on the file of the Civil Judge and J.M.F.C, Kagwad, insofar as it relates to the petitioner – accused No.2, is hereby quashed.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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List No.: 19 Sl No.: 3

Dinesh Jyotiba Tonne v. State of Karnataka

Case brief

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Dinesh Jyotiba Tonne v. State of Karnataka

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