IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION NO.950 OF 2012 BETWEEN:
STATE BY AUTHORISED OFFICER AND DEPUTY COMMISSIONER OF EXCISE, CHIKMAGALUR-577 101. … PETITIONER [BY SRI. S.CHANDRASHEKARAIAH, HIGH COURT GOVERNMENT PLEADER] AND:
SRI. ESHWARAPPA, S/O. LATE MARULAPPA, AGED ABOUT 55 YEARS, R/O. Y.MALLAPURA VILLAGE, YAGATI HOBLI, KADUR TALUK-577 548. … RESPONDENT [BY SRI. P.NATARAJU, ADVOCATE] * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTIONS 397 R/W 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT DATED 16.06.2012 PASSED IN CRL.A. NO.194/2011 ON THE FILE OF THE P.O., FTC, CHIKMAGALUR AND CONFIRM THE ORDER DATED 02.11.2011 PASSED BY THE AUTHORISED OFFICER AND DEPUTY. COMMISSIONER OF EXCISE, CHIKMAGALUR IN PROCEEDINGS NO. D.T.C.R.25/2008-2009.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT PASSED THE FOLLOWING:
ORDER The State is in revision against the Judgment and Order dated 16.06.2012 passed in Criminal Appeal No.194/2011 on the file of the Fast Track Court, Chikmagaluru, whereby the order of confiscation of Hero Honda Splendor motorcycle, bearing reg. No.KA-18/L-5523, passed by the Authorized Officer and Deputy Commissioner of Excises, Chikmagaluru was set aside and the interim order passed in respect of the said vehicle was made absolute.
2. I have heard the learned High Court Government Pleader appearing for the petitioner.
3. The case of the prosecution is that on 01.05.2008 at about 10.15 p.m., when the Police Sub-Inspector and his staff of Singatgere Police Station were patrolling near Y.Mallapura Gate, Kadur Taluk, they found two persons on a Hero Honda Splendor motorcycle bearing reg. No.KA-18/L- 5523 coming from Kadur side in a suspicious manner. When the said vehicle was stopped and checked, they found that 27 Raja Whisky bottles containing 180 ml. each were being transported in the said motorcycle without any licence or permit. The said bottles and the motorcycle were seized by drawing up a mahazar in the presence of panchas. Thereafter, confiscation proceedings were initiated and the vehicle in question came to be confiscated to the State by an Order dated 02.11.2011 passed by the Authorized Officer and Deputy Commissioner of Excise, Chikmagalur.
4. The respondent herein challenged the aforesaid order of confiscation by filing an appeal and the learned Sessions Judge by an Order dated 16.06.2012, allowed the said appeal and set aside the order of confiscation, which is under challenge herein.
5. The learned High Court Government Pleader vehemently contended that the respondent being the registered owner of the motorcycle in question was transporting in all 27 bottles of Raja Whisky containing 180 ml. each, which is in violation of Section 34 of the Karnataka Excise Act, 1965 [‘Act’ for brevity] as well as Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 [‘Rules’ for brevity]. He contended that under a notification, amendment was brought to Rule 21, permitting to transport 2.3 litrs. of liquor and since the vehicle in question was used for transporting more than the said quantity, the same is liable to be confiscated. He submits that the learned Sessions Judge without properly considering the fact that the vehicle was used for transporting the liquor without any valid licence or permit in contravention of the provisions of the Karnataka Excise Act and Rules has erred in setting aside the order of confiscation and accordingly, sought to allow the appeal.
6. It is not in dispute that the respondent herein is the registered owner of the Hero Honda Splendor motorcycle bearing reg. No.KA-18/L-5523. The case of the prosecution is that the said vehicle was used for transporting 27 Raja Whisky bottles containing 180 ml. each and the persons carrying the liquor bottles were not possessing any licence or permit and therefore, it is in violation of the provisions of the Karnataka Excise Act and Rules. Under Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967, no licence is required to possess or transport up to 4.6 liters of liquor specified in Sl. No.5 of the said Rules. In the instant case, it is not in dispute that out of 27 bottles which were seized from the possession of the respondent, only two bottles were sent for chemical examination. Even if it is taken into consideration that the said two bottles contained liquor, then the total quantity of liquor contained in the said bottles are within the permissible limit. The Chemical Examination Report to show that all the bottles contained liquor is not forthcoming. In the absence of any evidence showing that all the bottles contained liquor and the vehicle was being used to carry liquor in excess of the permissible limit and in violation of the Rules, it cannot be held that the prosecution has established its case beyond all reasonable doubt.
7. The contention of the learned High Court Government Pleader that by virtue of the amendment brought to Rule 21 of the Rules, the vehicle in question is liable to be confiscated cannot be accepted. By virtue of the said amendment, the permissible limit of the liquor which could be possessed has been reduced from 4.6 ltrs. to 2.3 ltrs. However, the said amendment has come into force with effect from 18.06.2015. The incident in the present case occurred much prior to the date of amendment and under Rule 21 of the Rules as on the date of incident, no permit or licence shall be required for possession or transport of 4.6 ltrs. of liquors.
8. Learned Sessions Judge having considered all the circumstances has come to the conclusion that the order of confiscation of the vehicle in question is not in accordance with law and has set aside the impugned order passed by the Authorized Officer. I see no illegality in the order passed by the learned Sessions Judge and accordingly, I pass the following:
ORDER The Criminal Revision Petition is dismissed.
Sd/- JUDGE Ksm*