IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 1064/2017 BETWEEN State of Karnataka By Inspector Excise Department Magadi Range Ramnagara District Represented by State Public Prosecutor High Court Building Bengaluru – 01.
(By Sri. Thejesh .P - HCGP) AND Sri Santhosh Pawar B.M Son of Manoj Rao Aged about 28 years R/o House No.213 10th Cross, Lakshmipura Gavipuram Bengaluru-560004.
(By Sri. M. B Ramachandra, Advocate) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the impugned order dated 17.04.2017 passed by the Principal District and Sessions Judge, Ramanagara in Crl.A.No.38/2015 and confirm the order dated 21.11.2015 passed by the Authorized Officer, Deputy Commissioner of Excise, Ramanagara District, Ramanagara in proceedings bearing No.EXE/RNR/DTCR/592/2013-14 and allow this Crl.RP.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
ORDER Though this matter is listed for hearing, with the consent of learned counsel on both sides, the same is taken up for final disposal.
2. This petition is filed challenging the order dated 17.04.2017 passed by the Prl.District and Sessions Judge, Ramanagara in Crl.A.No.38/2015 setting aside the order passed by the Authorised Officer and Deputy Commissioner of Excise, Ramanagara District in order No.EXE/RNR/DTCR/592/2013-14 dated 21.11.2015.
3. The brief facts of the case is that on 22.03.2014 at around 7.00 p.m., the election officials who were on duty in the check post situated at Varadenahally hand post within the limits of Magadi taluk found a Toyota Itios car bearing Regn.no.KA-05-AE-1204 involved in illegal transportation of some liquor bottles without possessing required license or permit. The same was intimated to the excise officials. Then, the Excise Inspector, Magadi Range along with his staff proceeded to the check post and when he approached the said election officials who were on the duty, they handed over the vehicle along with the liquor bottles to the excise officials. A mahazar was conducted by them in the presence of two independent panch witnesses and recovered the vehicle as well the liquor bottles. The accused were produced before the jurisdictional court. After following the procedures contemplated under the provisions of the Karnataka Excise Act, the Authorised Officer and the Deputy Commissioner of Excise, Ramanagar District passed the impugned order confiscating the vehicle to the State Government.
4. Aggrieved by the said order, the accused filed an appeal before the Prl.District and Sessions Judge, Ramanagara in Crl.A.No.38/2015. The lower Appellate Court vide order dated 17.04.2017 allowed the appeal by setting aside the order passed by the Authorised Officer. Consequently, ordered to release the vehicle to the custody of the appellant therein. Hence, this petition is filed by the State by urging various grounds.
5. Learned HCGP for the petitioner – State contends that the impugned order passed by the Court below is opposed to facts of the case and material evidence on record collected by the IO during the course of investigation. Further, he contends that all the requisite provisions of Section 43-B of the Karnataka Excise Act have been followed and the lower Appellate court without verifying the same has passed the impugned order which is illegal and arbitrary. He further contends that the evidence of PWs.1 and 3 indicates that the vehicle in question was found in illegal transportation of the contra bound articles and the Court below has erred in not properly appreciating this aspect of the matter. The reasons assigned by the lower Appellate Court to come to a conclusion that there is a material doubt as to the case of the prosecution, is erroneous, as the prosecution has examined PWs.1 to 5 who are official witnesses, to prove that the said vehicle at the check post was carrying the contra bound articles. On all these grounds, he seeks for allowing the criminal revision petition by setting aside the order passed by the lower Appellate Court in Crl.A.No.38/2015 and confirm the order passed by the Authorised Officer and Deputy Commissioner of Excise, Ramanagar.
6. Per contra, learned counsel for the respondent/accused contends that the order passed by the lower Appellate Court is a well reasoned order. The Court below has rightly held that the Authorised Officer has failed to appreciate the facts as narrated in the mahazar and as well as the evidence placed on record and the same has led to a wrong conclusion. There is a material doubt as regards to the case of prosecution that the vehicle was found involved in transportation of contra bound articles at the relevant point of time. It is contended that though the records establish the fact that the accused is not involved in illegal transportation of liquor bottles but the Authorised Officer has wrongly proceeded to confiscate the vehicle and the lower Appellate Court has rightly set-aside the impugned order. The Court below on appreciation of oral and documentary evidence available on record, has rightly passed the order allowing the appeal and setting aside the order passed by the Authorised Officer and Deputy Commissioner of Excise. Therefore, it does not arise for call for interference of this court. The petition being devoid of merits, is liable to be rejected.
7. In the context of the contention as taken by the learned HCGP for the State and learned counsel for the respondent, it is relevant to state that there is no dispute that the vehicle was not initially either noticed or searched by the excise officials at the check post. The election officials who were on duty had noticed that the vehicle containing the liquor bottles was found near the check post. The case of the prosecution is that the excise officials received message from the election officials and conducted mahazar in presence of two panch witnesses and seized the vehicle as well as the liquor bottles as described in the mahazar. It is pertinent to note that the election officials did not subscribe their signature on the seizure mahazar. In the cross-examination of the Excise Inspector it is stated that in addition to the election officials many of the police personnel and public had also gathered in the check post when the mahazar was conducted. The Authorised Officer has failed to take into consideration the fact that except the excise officials, all the independent witnesses examined in support of the seizure mahazar, turned hostile. It is not clear as to who noticed the vehicle at the check point at the first instance and so also who conducted the search of the vehicle is also not clear. Therefore, as observed by the lower Appellate Court, the Authorised Officer has failed to appreciate the facts as narrated in the mahazar as well as the evidence placed on record. The lower Appellate Court has rightly allowed the appeal in Crl.A.No.38/2015 by setting aside the impugned order dated 21.11.2015 passed by the Authorised Officer and Deputy Commissioner of Excise, Ramanagara District confiscating the vehicle in question. I find no justifiable ground to interfere with the same.
Further, it is submitted by the learned HCGP that the case in C.C.No.296/2014 registered against the accused persons including the respondent herein who are facing of a trial for the offence punishable under Sections 34, 38A and 43-A of the Karnataka Excise Act, 1988 is ended in acquittal vide order dated 27.09.2019.
Therefore, for the aforesaid reasons and findings, I find that this petition does not hold any substance and founds to be devoid of merits. Hence, the petition deserves to be rejected. Accordingly, the following:
ORDER This criminal revision petition is hereby rejected. Consequently, the order passed by the Prl.District and Sessions Judge, Ramanagara in Crl.A.No.38/2015 dated 17.04.2017 is hereby confirmed.
DKB Sd/- JUDGE