IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRL.P.NO.5855/2019 BETWEEN 1. SRI. ABHIJEET LALCHAND LANDGE S/O LAL CHAND LANDGE AGED ABOUT 27 YEARS, LANDGE ALI, BAPUJI BUWA CHOWK MAHATMA PHULE SHALEJAWAL PUNE CITY, PUNE MAHARASTRA - 411 039.
2. SURYAKANT PRAKASH SHITALE S/O PRAKASH SHITALE AGED ABOUT 33 YEARS, R/AT NO. 1/A/30 SHIVSHAKAR NAGAR CHAKRAPANI VASAHAT ROAD BHOSARI PUN, PUNE CITY PUNE, MAHARASTRA - 411 039.
3. SRI. RAVI LAXMAN LANDGE S/O LAXMAN LANDGE AGED ABOUT 34 YEARS, ANAND DARSHAN SHIVGANESH NAGAR DHAWADE WASTI, BHOSARI PUNE CITY, PUNE MAHARASTRA - 411 039.
...PETITIONERS (BY SRI PRATHEEP K C, ADV.) AND 1. STATE OF KARNATAKA REPRESENTED BY THE EXCISE INSPECTOR HUNSUR ZONE, HUNSUR MYSORE DISTRICT - 45 REP. BY SPP HIGH COURT BUILDING HIGH COURT OF KARNATAKA BENGALURU - 01.
2. INSPECTOR OF EXCISE HUNSUR ZONE, HUNSUR, MYSORE DISTRICT-45. …RESPONDENTS (BY SRI R.D.RENUKARADHYA, HCGP FOR R1 & R2.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.61/2019 ON THE FILE OF CIVIL JUDGE AND J.M.F.C., HUNSUR IN SO FAR AS PETITIONERS ARE CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned Counsel for the petitioners and the learned HCGP.
2. The petition is canvassed on the short ground of non- compliance of mandatory provisions under Sections 53 & 54 of the Karnataka Excise Act, 1965. Learned HCGP would fairly admit the same.
3. Learned Counsel for petitioners places reliance on the ruling by a co-ordinate Bench of this Court rendered in Crl.P.No.10942/2013 and disposed off on 05.02.2014, wherein this Court has held that in the absence of compliance with the mandate of Sections 53 & 54 of the Karnataka Excise Act, the search and seizure conducted by the Officer is vitiated, being a incurable defect. Paragraphs 4 to 12 of the said order reads as under:
“4. The sole ground urged before this Court is that the police have not followed the mandatory provisions under Sections 53 and 54 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'the K.E. Act' for brevity). The respondent - police have no jurisdiction to search any vehicle and seize any article from the vehicle without a warrant from the Magistrate. The police have not even whispered anything as to why could not take the warrant as contemplated under Section 53 of K.E. Act. The charge sheet papers disclose that the police officer has intercepted the vehicle, seized the articles, but there are no materials to state that he has made all his efforts to secure the necessary warrant but he was unable to secure the warrant, and therefore, by exercising the powers under Section 54 of K.E. Act he has searched the vehicle. In the absence of such elucidation of factual aspects in the charge sheet, it cannot be said that the search and seizure is legal and valid. If search and seizure becomes illegal and invalid, then all further proceedings are also vitiated by serious incurable defects. Therefore, the petition requires to be allowed.
5. In order to appreciate the above said contention, it is just and necessary to peruse those two provisions.
53. Power of magistrate to issue a warrant.- If a Magistrate, upon information and after such enquiry (if any) as he thinks necessary, has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be, committed, he may issue a warrant,-
(a) for the search of any place in which he has reason to believe that any intoxicant, still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such offence has been, is being, or is likely to be, committed, are kept or concealed; and (b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be, engaged in the commission of any such offence.
54. Power to search without warrant.-
Whenever the Excise Commissioner or a Deputy Commissioner or any Police Officer not below the rank of an officer-in-charge of a Police Station or any Excise Officer not below such rank as may be prescribed, has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief.-
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.
6. As per Section 54 of the K.E. Act, the Judicial Magistrate is a competent person to issue warrant, if the Magistrate is satisfied about the information and he has reason to believe that offences punishable under Sections 32, 33, 34, 36 or 37 has been, is being or likely to be, committed, then only he may issue search warrant for the search of any place in which any intoxicant, still, utensil, implement are concealed and also for arresting of any person who was involved in commission of such offence. Section 54 of the K.E. Act deals with, under what circumstances the police officer or any competent officer can make a search without a warrant. This provision abundantly clears the doubt that whenever the competent officer has reason to believe that an offence under the above said provisions are likely to be committed or committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief he can search the said place.
7. There is no doubt that the liquor was transported in a concealed manner. As per the records it is clear that the accused persons were transporting the liquor, by concealing the same, in a vehicle. Therefore, it goes without saying that taking of search warrant is mandatory and in the absence of taking of warrant, the Officer has to record the reasons of his belief and then proceed to search the place and seize the articles. In this regard, it is also worth to note a decision of the Hon'ble Supreme Court reported in-
AIR (SC) - 1979 - 0 - 711 between K.L. Subbayya vs. State of Karnataka.
8. The Hon'ble Supreme Court while dealing with similar set of facts and after discussing in detail has held that -
"The Inspector who searched the car of the appellant has not recorded any of the grounds 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 of the K.E. Act are not at all complied with. In the said case also without obtaining a search warrant as contemplated under Section 53 of the K.E. Act and without recording the reasons as contemplated under Section 54 of the K.E. Act, the competent officer has searched the car and seized some articles. In that context, the Hon'ble Supreme Court has held that the said proceedings are vitiated and on that ground itself accused is entitled to be acquitted. "
9. This Court had an opportunity to deal with the similar matter in Crl. P. No.4724/2012 between Sri Rajashekar v. Ulsoor Police Station.
10. In the said case also the police have registered a case for the offence punishable under Section 34 of the K.E. Act and this Court on dealing with the said provision under Sections 53 and 54 of the K.E. Act has held that in the absence of recording of the reasons the Empowered Officer does not get any jurisdiction to search and seize any articles. This Court has also relied upon another ruling reported in -
1999(4) Kar.L.J. 302 between L. Srinivas vs. The Authorised Officer and Superintendent of Excise, Bangalore Rural District, Bangalore.
11. On going through the said decision, this Court has come to the conclusion that without proper compliance of Sections 53 and 54 of the K.E. Act, the search and seizure conducted by the Officer is vitiated by serious incurable defects.
12. Having looked into the legal aspects, now let me consider in this particular case whether such compliance is made or not. I have carefully perused the charge sheet papers, particularly the complaint averments and as well as the mahazar drawn by the complainant at the spot i.e., while intercepting and searching auto rickshaw of this petitioner and also seizing the liquor. In the complaint it is only stated that on 06.01.2013 at about 11'o clock the complainant received a credible information about commission of offence by accused persons and immediately he went to the spot along with panchas at 11.30 a.m. and at about 11.40 a.m. they intercepted the vehicle, searched and seized liquor from the said vehicle. The same thing has been reiterated in the complaint averments and as well as in the mahazar. Nothing is there to indicate that Officer has made any attempts to secure warrant from the Magistrate. The Police Officer, who has searched and seized the article is the Police Sub-Inspector of Sirsi Town Police. There is a Magistrate Court at Sirsi between 11.00 to 11.30 a.m. after getting the credible information, the said Police Officer has not made any attempt to go to the Court or the residence of Magistrate to secure the warrant. The reason for not securing warrant from the Magistrate is also not at all stated in the complaint or in the mahazar, as contemplated under the above said provisions of law. In the absence of such materials on record, this Court cannot give its affirmative seal for continuation of such criminal proceedings against this petitioner who has challenged the said proceedings before this Court. Under the above said circumstances, I am of the considered opinion that the petitioner has made out a good case for quashing of the proceedings as prayed by him. Accordingly, petition is allowed. Consequently, all further proceedings in C.C. No.209/2013 pending on the file of I Addl. J.M.F.C., Sirsi, so far as it relates to this petitioner is concerned is quashed.”
4. In that view of the matter, this petition also deserves to be allowed. Accordingly, the petition is allowed. All further proceedings in C.C.No.61/2019 pending on the file of the Civil Judge & JMFC, Hunsur, in so far as it relates to these petitioners, stands quashed.
KK CT-HR Sd/- JUDGE