IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1972 OF 2016 BETWEEN:
1. Vinod K.C. S/o Kumaran, Aged about 48 years, The then Manager, “Prestige Shanthiniketan Apartment Owners Association”, R/o No.39, Jnaneshwari Nilaya, Ashwathnagar, Bengaluru-560 094.
2. Sunith Roy S/o D.G. Wadhwa, Aged 42 years, R/o Aldar A-301, Godrej Woodman Estate, Bellary Road, Bengaluru-560 024.
3. Vivek Verma S/o Girish Chandra Verma, Aged about 41 years, No.10144, The then Honourary President, “Prestige Shanthiniketan Apartment Owners Association”, Tower No.08, Basement, Prestige Shanthiniketan, ITPL Road, White Field, Bengaluru-560 066. …Petitioners (By Sri. Mohan Bhat, Advocate) AND:
The State of Karnataka, Represented by Inspector of Excise-2, Whitefield Range, White Field, Bengaluru-560 066. ...Respondent (Sri. Dildar Shiralli, HCGP) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the entire proceedings against the petitioners as per Excise case No.23/2015-16 registered by the respondent and pending on the file of the II Addl. C.J.M., Bengaluru Rural District, Bengaluru, for the offences P/U/S 32 and 38(A) of the Karnataka Excise Act.
This Criminal Petition coming on for Admission, this day, the Court made the following:
ORDER Petitioners have called in question the prosecution initiated against them for the alleged offences punishable under Sections 32 and 38(A) of the Karnataka Excise Act.
2. Heard learned counsel for petitioners and learned High Court Government Pleader for respondent. Perused the records.
3. Petitioner No.1 was the Manager, Petitioner No.2 was the event manager and petitioner No.3 was the Honorary President of Prestige Shanthiniketan Apartment Owners Welfare Association (hereinafter for brevity referred to as “Association”). According to respondent, on 05.01.2016 at about 6.00 p.m., certain quantity i.e., 6 liters of Indian made liquor, 21 liters of wine and 130.02 liters of beer were found illegally stored in the basement floor of Prestige Shantinikethan Apartment building.
4. Learned counsel for petitioners submits that the said liquor was procured under a valid licence to cater to the guests on the eve of new year. The Association had obtained a special occasional licence to open a bar counter between 6.00 p.m. on 31.12.2015 till 1.00 a.m. on 01.01.2016. The excess liquor procured for the said purpose was kept in the godown and it was not possessed by any of the petitioners within the meaning of Section 32 of the Karnataka Excise Act. Under the said circumstances, initiation of prosecution against the petitioners is contrary to the provisions of the Karnataka Excise Act and is a clear case of abuse of process of the Court, and therefore, the impugned Hence, the proceedings are liable to be quashed.
5. Learned High Court Government Pleader appearing for respondent, by referring to the relevant clause of the licence granted to the Association pointed out that the petitioners were allowed to possess illicit liquor only during the period specified therein and since the above quantity of liquor was found in possession of the petitioners and the matter is being investigated, the petitioners are not entitled to stall the investigation at this stage and thus, prayed to dismissal of the petition.
6. Considered the submissions and perused the records.
7. Undeniably, petitioner Nos.1 and 3 are sought to be prosecuted in their capacity as the office bearers of the Association. Petitioner No.2 is sought to be prosecuted as the temporary permit holder. The particulars furnished in the complaint go to show that he was not a resident of the said apartment. The address furnished in the complaint shows that he was a resident of Bellary road, Bengaluru. It is not the case of respondent that he was also found in possession of the above illicit liquor. Merely because he was engaged by the Association to arrange the new year event, and temporary permit was obtained in his name, he could not have been prosecuted on the basis of the allegations that the alleged liquor was found in the basement of the Association building. Prosecution of petitioner No.2 on the face of it is illegal and is liable to be quashed outrightly.
8. Insofar as Petitioner Nos.1 and 3/accused Nos.1 and 3 are concerned, the averments made in the complaint go to show that the alleged liquor was found in the basement of the apartment building. It was not in the conscious possession of any of the petitioners so as to hold them liable for illegal possession of the said liquor. It is not the case of the respondent that it was illicit or contraband liquor. Section 32 renders a person liable for illegal import, export, transport, manufacture, or possession of any intoxicant. But in the absence of any material to show that the alleged liquor was in the conscious possession of anyone of the petitioners herein, merely on the ground that the petitioners were holding position of office bearers of the Association, petitioner Nos.1 to 3 cannot be prosecuted under Section 32 of the Karnataka Excise Act. Insofar as storing of the aforesaid liquor in the basement of the Association building is concerned, valid explanation has been offered by the petitioners with acceptable documents that the said liquor was purchased for the purpose of consumption during an event under a permit issued by the Department.
9. Respondent does not dispute the fact that an occasional licence was issued to the petitioners to open a counter on the eve of new year. I have gone through the said licence. It does not specify the quantity required to be procured nor the manner in which the remaining or excess liquor procured by the petitioners to be disposed of. Under the said circumstance, even the provisions of Section 38(A) of the Karnataka Excise Act do not get attracted to the fact of the case. In that view of the matter, the prosecution of the petitioners being contrary to the provisions of the Sections 32 and 38(A) of the Karnataka Excise Act cannot be sustained.
Accordingly, the petition is allowed. The proceedings initiated against the petitioners in Excise Case No.23/2015-16 on the file of the II Addl. C.J.M., Bengaluru Rural District are quashed.
Since the liquor found in the basement of the apartment building is already seized, the Authorities under the Act shall dispose of the same in accordance with the provisions of the Karnataka Excise Act.
Sd/- JUDGE BMC