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.746 OF 2012 BETWEEN:
1. THE SUB-INSPECTOR OF EXCISE, MANGALORE SUB-DIVISION, MANGALURU-575 001.
2. THE AUTHORISED OFFICER & DY. COMMISSIONER OF EXCISE, MANGALURU-575 001, D.K. … PETITIONERS [BY SRI. S.CHANDRASHEKARAIAH, HIGH COURT GOVERNMENT PLEADER] AND:
MR. RAMANAND, S/O. BABU POOJARY, AGED ABOUT 45 YEARS, R/AT PANJINANDKA HOUSE, GARODI POST & VILLAGE, MANGALORE-575 001, D.K. … RESPONDENT [BY SMT. SANDHYA U. PRABHU, ADVOCATE] * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTIONS 397 R/W 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, MANGALURU IN CRL.A. NO.138/2010 AND TO CONFIRM THE ORDER DATED 13.08.2010 PASSED BY THE AUTHORISED OFFICER AND DEPUTY COMMISSIONER OF EXCISE, D.K., MANGALURU IN NO.SDK/151/DTCR/2006-07 IN SO FAR AS IT RELATES TO THE CONFISCATION OF AMBASSADOR CAR BEARING REG. NO.KA 19 A 987.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY THE COURT PASSED THE FOLLOWING:
ORDER This revision petition is filed by the State challenging the Order dated 31.01.2012, passed by the Court of I Additional District and Sessions Judge, D.K., Mangaluru, in Criminal Appeal No.138/2010, whereby the learned Sessions Judge allowed the appeal filed by the respondents herein and set aside the Order dated 13.08.2010, passed by the Authorized Officer and Deputy Commissioner of Excise, D.K., Mangaluru, in proceedings No.SDK/151/DTCR/2006-07.
2. By virtue of the impugned order passed by the learned Sessions Judge, the order of confiscation passed by the Authorized Officer was set aside and the release of the Ambassador car bearing reg. No.KA-19/A-987 to the interim custody of the respondent herein by virtue of an interim order, was made absolute.
3. I have heard the learned High Court Government Pleader appearing for the petitioners and the learned counsel for the respondent.
4. It is the case of the prosecution that on 14.11.2006 at about 5.30 a.m., the then Sub-Inspector of Excise, Mangaluru Sub-Division, while patrolling on Surathkal- Mangaluru Highway along with his staff, received a credible information that illicit liquor is being transported in some vehicles. Having received the said information and having noticed the Ambassador car bearing reg. No.KA-19/A-987, he and his staff attempted to stop the said vehicle, which was coming from Surathkal towards Nantoor and the driver of the said car did not stop the vehicle. Hence, he and his staff chased the said car and stopped it near Karnataka Polytechnic, Kadri Hills, Mangaluru. The driver of the said car was apprehended and the car was checked. They found that the inmates of the car were in possession of 240 bottles each containing 750 ml. of liquor, which they were carrying without any valid permit. The liquor bottles as well as the Ambassador car were seized in the presence of panchas under a mahazar. It is the further case of the prosecution that 5 bottles of liquor each containing 750 ml. of liquor were taken for the purpose of chemical examination.
5. Proceedings were initiated under Section 43-E of the Karnataka Excise Act [‘’Act’ for brevity] and during the pendency of the said proceedings, interim custody of the vehicle was given to the respondent herein, who is admittedly the owner of the vehicle in question, on furnishing the bank guarantee as required under law.
6. The Authorized Officer and Deputy Commissioner of Excise on completion of the confiscation proceedings found that the vehicle in question was transporting the liquor without any valid permit, which is in violation of Section 34 of the Karnataka Excise Act, 1965 as well as Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967 [‘Rules’ for brevity]. Accordingly, confiscated the Ambassador car bearing reg. No.KA-19/A- 987.
7. Aggrieved by the aforesaid order passed by the Authorized Officer and Deputy Commissioner of Excise, D.K., Mangaluru, the respondent herein preferred Criminal Appeal No.138/2010 before the learned Sessions Judge.
8. The learned Sessions Judge allowed the said appeal, set aside the impugned order of confiscating the vehicle and made absolute the order granting interim custody of the vehicle, which was given to the respondent herein.
9. The learned High Court Government Pleader appearing for the petitioners assailing the impugned order would contend that the vehicle in question was transporting illicit liquor and under a mahazar 12 cardboard boxes each containing 750 ml. liquor in all 240 bottles were seized. The inmates of the car were transporting the liquor bottles without any valid licence or permit and hence, they have violated Section 34 of the Act and therefore, the vehicle in question is liable to be confiscated. He further submitted that the learned Sessions Judge was not proper in holding that the inmates of the car were in possession of less than 4.6 ltrs. of liquor and therefore, Rule 21 of the Rules is not violated. He further submits that the learned Sessions Judge has failed to see that even according to the Chemical Examiner’s Report at Ex.P3, the bottles contained liquor and the total quantity of the liquor which was sent for chemical examination is 3.750 ltrs. and in view of the amendment brought to Rule 21 of the Rules, the total quantity which is permissible to carry is only 2.3 ltrs. and the persons in the Ambassador car were in possession of more than the said quantity and hence the provisions under the Act and Rules have been violated and therefore, the vehicle in question is liable to be confiscated. Hence, he prays to set aside the Judgment and Order passed by the learned Sessions Judge.
Per contra, learned counsel for the respondent contended that the seizure is in violation of the Rules prescribed and there is no search memo issued before seizure. It is further submitted that the complainant himself has conducted the search and seizure and also conducted the investigation, the Chemical Examiner has not been examined. It is further submitted that though it is alleged that 240 bottles were seized, however, the Chemical Examiner’s Report at Ex.P3 is only in respect of 5 bottles and total quantity of the liquor contained in 5 bottles is within the permissible limit and not in violation of any Rules. Hence, it is submitted that there is no illegality committed by the learned Sessions Judge and accordingly, the learned counsel seeks to dismiss the revision petition.
10. It is not in dispute that the respondent herein is the registered owner of the vehicle in question i.e., Ambassador Car bearing reg. No.KA-19/A-987, which was intercepted by the complainant and stopped on Surathkal- Mangaluru Highway on 14.11.2006 at about 5.30 a.m. It is the case of the prosecution that the inmates of the car were transporting in all 240 bottles of liquor each containing 750 ml. of liquor in the said car. It is not in dispute that only 5 bottles each containing 750 ml. of liquor were taken for the purpose of sample and sent for chemical examination. Though the Chemical Examiner’s Report discloses that the said 5 bottles contained alcohol, the total quantity of the liquor contained in the said 5 bottles is 3.750 ltrs. The remaining 235 bottles were not sent for chemical examination and it is not established that even the said bottles contained liquor. Those liquor bottles have not been produced before the Authorized Officer and not marked.
11. Under Rule 21 of the Rules, no permit or licence shall be required for the possession or transport of 4.6 ltrs. of liquor which are mentioned at Sl. No.5. In the instant case, if 5 bottles of liquor which were sent for chemical examination are taken into consideration, then the quantity of liquor which was being transported in the vehicle in question as established by the prosecution would come to 3.750 ltrs., which is less than the permissible limit contained under Rule 21 of the Rules.
12. The contention of the learned High Court Government Pleader that there is an Amendment to Rule 21 of the Rules and the permissible limit after the amendment is only 2.3 ltrs. and therefore, there is violation of the Rules cannot be accepted for the simple reason that the said amendment has come into force with effect from 18.06.2015 and the date of incident in the present case is much prior to the said amendment, which was brought into force. The learned Sessions Judge having considered the relevant aspect and after giving valid reasons, has come to the conclusion that the Authorized Officer and Deputy Commissioner of Excise was not justified in confiscating the Ambassador car in question.
In view of the foregoing reasons, I find no reasons to interfere with the order passed by the learned Sessions Judge. Accordingly, I pass the following:
ORDER The Criminal Revision Petition is dismissed.
Sd/- JUDGE Ksm*