Allowed

Smt. Vignesh G v. the State of Karnataka

Karnataka HC24 Jan 2024CRL.P/7033/2022

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition seeking quashing of an FIR under Section 482 Cr.P.C. The Court held that initiating investigation by seizing liquor and registering an FIR without a warrant, and failing to submit a record of reasons for non-obtaining the warrant to the Magistrate, violates mandatory procedure. The proceedings were quashed following precedents.

What did the court decide?

The FIR in Crime No.63/2021-22/3604IE/360404 registered by the Excise Police Station is hereby quashed.

Smt. Vignesh G Vs the State of… — Constitutional and Fundamental Rights | Karnataka HC (2024)

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1 - NC: 2024:KHC:3343 CRL.P No. 7033 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN CRIMINAL PETITION NO. 7033 OF 2022

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BETWEEN:

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SRI. VIGNESH G S/O GANESH POOJARI B AGED ABOUT 28 YEARS, R/A NO.72, 2^ND CROSS, NAGATEMPLE, SITHAPPA LAYOUT, CHAMUNDINAGAR, R.T.NAGAR, BANGALORE - 560 032.

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…PETITIONER

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(BY SRI. TEJAS N., ADVOCATE)

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AND:

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Digitally signed by BHAVANI BAI G Location: High Court of Karnataka

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THE STATE OF KARNATAKA BY EXCISE POLICE, RANGE-1 YELAHANKA, INSPECTOR OF EXCISE, BANGALORE - 560 065. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR, HCK, BANGALORE - 01)

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SRI. ARUNAKUMAR M J EXCISE INSPECTOR, YELAHANKA ZONE, BANGALORE - 560 065.

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…RESPONDENTS

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(BY SRI. VINAY MAHADEVAIAH, HCGP)

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NC: 2024:KHC:3343 CRL.P No. 7033 of 2022

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR IN CR.NO.63/2021-22360404 OF EXCISE POLICE STATION WHICH IS PENDING ON THE FILE OF THE HONBLE 37th ACMM, BANGALORE FOR THE OFFENCE U/S 11, 13(1)(A), 14, 15, 32, 38(A), 40, 43 OF KARNATAKA EXCISE ACT AND THE CONSEQUENT INVESTIGATION AS AN ABUSE OF PROCESS OF LAW.

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

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ORDER

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This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the FIR in Crime No.63/2021-22/3604IE/360404 registered by the Excise Police Station, Range-1, Yelahanka for the offences punishable under Sections 11, 13(1)(A), 14, 15, 32, 38(A), 40 and 43 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'K.E. Act').

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Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondents.

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The case of the prosecution is that Excise Inspector, Range-1, Yelahanka registered the complaint alleging that on 01.06.2022 at 11.45 a.m., on the credible information, he intercepted the Hyundi Verna vehicle bearing No.KA-51-P-2889

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NC: 2024:KHC:3343 CRL.P No. 7033 of 2022

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where they found 750 ml Blenders Pride Whisky of 10 bottles belong to the military where they stated not for sale which was seized under the panchanama and thereafter registered the FIR and started investigating the matter which is under challenge.

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Learned counsel for the petitioner submits that the respondent has not followed the procedure for obtaining warrant under Section 53 of the Excise Act. If not able to get the warrant, he has to record the reasons for not getting the warrant and then raid and seize the liquours, but he has totally violated. However, the respondent said to be prepared record of reason, it was not sent to the Magistrate along with the FIR and even otherwise, the Investigating Officer though seized 10 bottles, but only 4 bottles were sent to the FSL. Therefore, the proceedings cannot be sustainable, Hence, prayed for quashing the same.

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Per contra , learned High Court Government Pleader objected the petition and contended that there was record of reasons prepared by the Police and sent to the Court and he has taken all the measures for seizure and thereafter arrested the petitioner. There is a power for the Inspector to seize the

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liquors under Section 54 of the Excise Act without obtaining the order. Therefore, the matter is for investigation. Hence, prayed for dismissing the same.

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Having heard the arguments and on perusal of the records, especially the complaint where it reveals, he got credible information and the Inspector seized the car as well as 10 bottles of military liquors from the possession of the accused who is driving the car and in the complaint, the respondent has not stated for obtaining any warrant from the Court or recording the reasons in the complaint. However, in the panchanama, it is stated that he has exercised the power under Section 54 of the Excise Act and seized the liquor as he is unable to get the warrant from the Magistrate. But he has not stated that he was unable to get the warrant from the Court and therefore, he has recorded the reasons and thereafter seized the liquours. However, a copy of the record of reasons has been produced which reveals, it was not sent to the Magistrate along with the complaint and there is no endorsement which reveals, this record of reasons were prepared by the respondent only after coming to the Police Station while seizing the liquours. Even otherwise, the

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respondent has not sent entire bottles for chemical analysis except 4 bottles.

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This Court in the case of Damera Upendra Road and Another vs. State by Excise Department Police in Crl.P.No.2121/2022 dated 14.12.2022 has taken similar view and has held at paragraph Nos.9 , 10 and 11 which reads as under:

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”9. That apart, when the FIR sent to the Magistrate, the record of reason not sent to the Magistrate along with FIR in order to show that they are unable to obtain the warrant and therefore, they conducted search and seizer of the liquors. There is no endorsement of the magistrate on the FIR and on the record of reason under Section 54 of the K.E. Act, which reveals that the record of reason not accompanied the FIR when the FIR reached the magistrate which categorically suggest the respondent searched and seized the liquor without warrant and not recorded the reason as required under section 54 of the Act. In a similar circumstance, this court also quashed the proceedings in the case of Sunitha and Anr Vs. State of Karnataka, Excise Inspector in Crl.Rev P.2315/2013 dated 19.7.2022, where

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in this Court has held without registering FIR and seizing the articles is nothing but commencement of investigation prior to the registering of FIR and not recording the reasons under Section 54 of Excise Act without obtaining warrant and registering the case amounts to violation of mandatory procedure, therefore on that ground, the search and seizer vitiate and prosecution cannot be sustained.

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That apart, the alleged seized article is 20 bottles, but it the Investigating Officer only 6 bottles to the FSL for chemical examination but not entire bottles. Though the investigation officer said to have seized 20 bottles of 15 liters but he has sent only 6 bottles for chemical analysis and without sending the entire bottles for verifying the liquors, the Court cannot presume against the accused that the entire bottles are liquors.

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That apart, the petitioner Counsel stated that the petitioner No.1 is ex-service man and there are labels on the bottles, mentioning that is military liquor and it is not sold in the open market. Admittedly, the petitioner might have purchased from the military canteen and kept in the house and of course, he has not

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produced any bills but it does not mean that the Excise Officer/ Investigating Officer should not make any enquiry with the military canteen. Absolutely, there is nothing on record to show that investigation officer has verified from which canteen the liquor was purchased. Therefore, there is a flaw in the investigation, not only search and seizure but also in filing the charge sheet. Therefore, the trial cannot be sustained against the petitioner No.1."

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In view of the judgment passed by this Court in the earlier petition as well as in Crl.Rev.P.No.2315/2013 dated 19.07.2022, this Court has also taken similar view. Such being the case, when the respondent seizing the liquours without obtaining the warrant or not recording the reasons under Section 54 of the Excise Act, seizing the articles and thereafter registering the FIR amounts to an investigation commenced prior to registering the FIR which is mandatory in Cr.P.C. Therefore, proceeding with the investigation against the petitioner cannot be sustainable. Hence, I proceed to pass following order:

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