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.1256 OF 2012 BETWEEN:
STATE OF KARNATAKA, BY AUTHORISED OFFICER AND DY. COMMISSIONER OF EXCISE, CHICKMAGALUR-577 101. … PETITIONER [BY SRI. S.CHANDRASHEKARAIAH, HIGH COURT GOVERNMENT PLEADER] AND:
G.S.NAGARAJ, S/O. GANGANNA, AGED ABOUT 30 YEARS, R/O. GANGANAHALLI VILLAGE, KADUR TALUK, CHIKMAGALUR DISTRICT-577 548. … RESPONDENT [BY SRI. K.V.JAYACHANDRAPPA, ADVOCATE [ABSENT] * * * 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 28.07.2012 PASSED IN CRL.A. NO.37/12 ON THE FILE OF THE P.O., FTC, CHIKMAGALUR AND CONFIRM THE ORDER DATED 22.02.2012 PASSED BY THE AUTHORISED OFFICER AND DY. COMMISSIONER OF EXCISE, CHICKMAGALUR IN PROCEEDINGS NO. D.T.C.R.144/10-11 CONFISCATING THE MARUTHI OMNI BEARING REGISTRATION NO.KA-18/9759.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The State has filed this revision petition, challenging the Judgment and Order dated 28.07.2012 passed in Criminal Appeal No.37/2012 on the file of the Fast Track Court, Chikmagaluru, whereby the order of confiscation of a Maruti Omni van bearing reg. No.KA 18/9759 passed by the Authorized Officer and Deputy Commissioner of Excise, Chikmagluru was set aside and the interim order passed in respect of the said vehicle was made absolute.
2. I have heard Sri. S.Chandrashekaraiah, learned High Court Government Pleader for the petitioner.
3. It is the case of the prosecution that on 12.09.2009 at about 5.30 p.m., the Excise Inspector No.3 of the State Observation Squad, Bengaluru, along with the Excise Inspector, Kadur Range and his staff were keeping a watch on Panchanahalli-Belagur Road, at that time they noticed a white Maruti Omni van bearing reg. No.KA-18/9759 and attempted to stop the said vehicle. But, the vehicle did not stop and therefore, the said vehicle was chased down and it was stopped. When the said vehicle was checked, they found 5 carton boxes containing 48 bottles of Raja Whisky of 180 ml. each, in all 240 bottles of liquor in the said vehicle. The inmates of the vehicle were not possessing any licence or permit to possess or transport the liquor. Hence, the said liquor as well as the vehicle were seized under a mahazar in the presence of panchas. A case was registered in Crime No.10/2010-11.
4. The confiscation proceedings were initiated and during the said proceedings, interim custody of the Maruti Omni van was given to the respondent-registered owner of the vehicle. The vehicle in question came to be confiscated after conclusion of the confiscation proceedings. The respondent challenged the confiscation order by filing an appeal before the learned Sessions Judge and the said appeal came to be allowed and the impugned order confiscating the vehicle was set aside and the interim order passed by the Authorized Officer and Deputy Commissioner of Excise in respect of the said vehicle was made absolute, which is under challenge in this revision petition.
5. The learned High Court Government Pleader appearing for the petitioner would contend that the vehicle in question was used for transporting liquor without any valid licence or permit and under a mahazar a total quantity of 240 bottles of liquor were seized. He submits that the said seizure was done by drawing up a mahazar in the presence of panchas. Therefore, the prosecution has established that the vehicle was used for carrying liquor in violation of the Karnataka Excise Act, 1965 and the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967. He further submitted that the Authorized Officer and Deputy Commissioner of Excise after considering the entire facts and circumstances of the case and the evidence on record has rightly confiscated the vehicle and therefore, submits that the impugned order passed by the learned Sessions Judge be set aside and the petition be allowed.
6. The respondent herein is admittedly the registered owner of the Maruti Omni van bearing reg. No.KA- 18/9759. During the course of the confiscation proceedings, the interim custody of the vehicle was given to the respondent. It is the case of the prosecution that vehicle in question was found carrying 240 bottles of Raja Whisky of 180 ml. each and the inmates of the said vehicle were transporting the said liquor bottles without any valid permit or licence. To establish its case, before the Authorized Officer and Deputy Commissioner of Excise, 4 witnesses were examined. P.W.1 is the Excise Inspector and P.W.2 is another official, who was along with P.W.1. They intercepted the Maruti Omni van and found that the said vehicle was being used to transport the liquor bottles and under a mahazar 240 bottles each containing 180 ml. of Raja Whisky were seized. P.Ws.3 and 4 are the panchwitnesses to the mahzar. However, both of them have turned hostile to the prosecution case.
7. The case of the prosecution is that all the bottles contained liquor and the permissible limit under Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 was only 4.6 ltrs. and therefore, the vehicle was used for transporting liquor bottles in violation of the said rules. The prosecution contends that 30 bottles of liquor was taken and sent for chemical examination and the report submitted by the Chemical Examiner goes to show that all the said bottles contained liquor. However, the Chemical Examination Report in respect of the contrabands seized is not forthcoming. Both the panchwitnesses to the seizure mahazar have turned hostile. Therefore, it cannot be said that the vehicle in question was used for transporting liquor bottles in violation of the Karnataka Excise Act, 1965 and Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967. The prosecution has failed to establish the case beyond all reasonable doubt and the learned Sessions Judge considering the facts and circumstances of the case and after giving reasons has rightly set aside the order of confiscation passed by the Authorized Officer and Deputy Commissioner of Excise, Chikmagalur. I see no illegality in the said order passed by the learned Sessions Judge. Accordingly, I pass the following:
ORDER The Criminal Revision Petition is dismissed.
Sd/- JUDGE Ksm*