Full Judgment
R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE18H DAY OF DECEMBER, 2019 BEFORE THE HONBLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION No.1223/2017 BETWEEN Sri Harish .B.S S/o Swamygowda Aged about 35 years R/at Bychanahalli Village Kasaba Hobli Arakalagudu Taluk Hassana District Pin-573102. (By Sri. Basavaraju .P, Advocate) AND1 2. Deputy Commissioner of Excise State Represented by Excise Sub-Inspector Arakalagud Division Arakalagud Hassan District Pin-573102. Hassan Division Hassan, Hassan District. ...... Petitioner
(By Sri. Thejesh .P, HCGP for R-1 and R-2) ...... RESPONDENTS
This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, set aside the order dated 15.11.2016 in DTCR:262/2008-09 passed by the Second Respondent and confirmed by the V-Additional District and Sessions Judge, Hassan in Crl.A.No.245/2016 dated 01.08.2017 vide Annexure-B and A respectively. This Criminal Revision Petition Coming on for Admission, this day, the court made the following: ORDER This petition is filed by the petitioner challenging the judgment dated 01.08.2017 rendered by the 5th Addl.District and Sessions Court, Hassan in Crl.A.No.245/2016 dismissing the appeal and confirming the order of confiscation passed by the Authorised Officer and Deputy Commissioner of Excise, Hassan in DTCR No.262/2008-09 dated 15.11.2016.
2. The brief facts of the case is that the petitioner is said to be the owner of Motor Bike bearing Regn.No.KA-13-U-1743. It is the case of the prosecution that the Excise Superintendent who is the complainant received a credible information on 02.12.2008 at about 12 p.m and visited Hullangala-
Ganganalu road of Arakalgudu Taluk along with other staff and found that one person was illegally transporting illicit liquor in his motor bike. The accused person was directed to stop the vehicle and on inspection found 48 bottles of Original Choice Whiskey of 180 ml each which was kept in a box. Further, the accused was apprehended and motor bike was seized. On investigation it was found that the said bike belonged to the petitioner herein and the same was seized. On 15.6.2009, notice was issued under Section 43(b) of the Karnataka Excise Act, 1965. Thereafter, the bike was released to the interim custody of the petitioner after obtaining the Bank Guarantee. Thereafter, the proceedings under Section 43 of the Act came to be initiated.
3. In order to prove their case, the prosecution had examined PWs.1 to 3 and got marked Exs.P1 to P4 and M.O.1 was also identified. After hearing both the parties, and on appreciating the documents available on record, the 2nd respondent Authority vide order dated
26.10.2016 ordered to confiscate the Motor Bike in favour of the Government.
4. Being aggrieved by the said order, the petitioner/accused preferred an appeal before the first Appellate Court in Crl.A.No.245/2016. The first appellate Court vide judgment dated 01.08.2017 dismissed the appeal and confirmed the order of confiscation passed by the authorised officer Deputy Commissioner of Excise, Hassan District, Hassan in DTCR No.262/2008-09 dated 15.11.2016. Hence, this petition is filed by the petitioner/accused by urging various grounds.
5. Learned counsel for the petitioner contends that the impugned order and judgment are contrary to the evidence on record. The court below and authorised officer have failed to notice the contradiction in the complaint and the absence of independent eye witnesses to the alleged offence. Further, in order to prove the guilt of the accused, it is mandatory and
necessary to examine the mahazar witnesses to the alleged seizure of liquor. PW.2 and PW.3 said to be the mahazar witnesses have been completely turned hostile to the case of prosecution. It is the duty of the prosecution to establish the seizure of materials by examining the independent witnesses. But the Courts below have failed to notice the failure of the prosecution in this regard. PW.1 Inspector of Excise in his cross- examination has stated that he do not remember the villages whereby he passed to Hullangala and there was no mahazar with regard to the seizure of the vehicle. According to his evidence, he had seized 26 liquor bottles but according to one witness namely Kyasaiah who has stated that they have found 48 Original Deluxe Choice Liquor bottles and out of that 26 bottles were sent for chemical examination and there is no explanation with regard to remaining liquor bottles.
6. Further, it is contended that the case filed by the Excise Inspector before the Civil Judge and JMFC Court at Arakalagudu in C.C.No.749/2009 has ended in
acquittal of the accused vide judgment dated 16.08.2013. The said judgment has not been asailed by the prosecution and the same has attained finality and binding on the second respondent and he cannot sit over the judgment of the competent criminal Court as appellate Court. As such, the impugned order passed by the second respondent and confirmed by the Appellate Court are liable to be set-aside. On all these grounds, learned counsel for the petitioner seeks for allowing the petition by setting aside the orders passed by the Courts below.
7. Per contra, learned HCGP for respondents contends that the petitioner is admittedly the owner of seized vehicle and has not adduced any evidence in this regard to show that there was no connivance on his part. The accused himself was person who was in possession of the vehicle at the time of seizure and he has not produced any cogent materials in order to discharge the burden caste upon him. The petitioner/accused has not adduced any evidence which
is required under the provision of Section 43 of the Karnataka Excise Act and has only concentrated his evidence only with respect to non commission of the act. Therefore, learned HCGP contends that the order passed by the respondent Authority and the reasons assigned by the first Appellate Court while dismissing the appeal filed by the accused are just and proper. Therefore, it does not require any interference of this Court. The petition being devoid of merits is liable to be dismissed. On all these grounds, he sought for dismissal of the petition.
8. In the context of the contentions as taken by learned counsel for the petitioner and so also, learned HCGP it is relevant to state that the petitioner is said to be the owner of Motor Bike bearing registration No.KA- 13-U-1743. It is alleged that the accused person was carrying 48 bottles of Original Choice Whiskey illicit liquor in the said vehicle and he was arrested. The petitioner herein being the owner of the said Motor Bike was got issued with notice under Section 43(b) of the
Karnataka Excise Act and thereafter, proceedings under the said provision came to be initiated. After hearing both the parties, the respondent authority passed an order confiscating the Motor bike in favour of the Government. The first Appellate Court in Crl.A.No.245/2016 confirmed the order of confiscation.
9. PW.1 is the Excise Inspector who investigated the case and conducted the spot mahazar as per Ex.P1 and registered FIR as per Ex.P2. Ex.P3 is the FSL report. During the cross-examination he has stated that no mahazar drawn at the place of incident nor any enquiry was conducted. PW.2 and PW.3 are the independent mahazar witnesses. They have stated that they do not know the content of Ex.P1 Mahazar which was drawn by IO in their presence. Nothing worthwhile has been elicited to believe the case of the prosecution. They have not supported the case of the prosecution and they have been treated as hostile witnesses. It is the duty of the prosecution to establish the seizure of the materials as alleged by them but in the present case
they have failed to establish the same by examining independent witnesses. It is pertinent to note here that though the statement of witnesses in cross examination are contradictory to each other, the respondent No.2 authorised Officer and the Deputy Commissioner has passed the order of confiscation and the same appears to be not based on the documentary evidence available on record. It is the contention of the petitioner that he was not transporting any illicit liquor nor his vehicle was seized. Further, all the witnesses which are believed by the Court below are the official witnesses and the same ought not to have accepted by the Courts below.
10. Further, it is relevant to note here that according to PW.1, 48 bottles of illicit liquor was seized and out of that 26 bottles were sent for chemical examination. But there is no explanation about what happened to the remaining bottles. Hence, there appears to be clouds of doubt in the theory put forth by the prosecution. :
11. It is pertinent to mention here that the Excise Officer of Arakalagudu Division had filed complaint against the petitioner herein under Section 13(1)(14) and 32(1) of the Karnataka Excise Act and the petitioner was charge sheeted for the said offences in C.C.No.749/2009 before the Civil Judge and JMFC Court at Arakalagudu. The prosecution in order to prove its case has examined PWs.1 to 5 and has got marked Exs.P1 to P5 and M.O.1 to 26. On appreciation of the entire evidence on record, the Court vide order dated 16.08.2013 has acquitted the petitioner herein for the aforesaid offences. The Order copy of the said order is produced herewith as per Annexure-C. The said judgment has not been assailed by the prosecution and the same has attained finality. When the petitioner has been acquitted for the offence under Section 13(1) (14) and 32(1) of the Karnataka Excise Act on the similar set of facts, the second respondent ought not to have passed the impugned order confiscating the alleged Motor bike in favour of the Government. Even the Appellate Court has failed to notice the order passed by :
the competent criminal court acquitting the petitioner for the alleged offences and simply went on to confirm the order of the authorised officer and the Deputy Commissioner. Therefore, the impugned orders passed by the Courts below requires interference of this Court since no justifiable grounds have been assigned while passing the impugned orders. The order of confiscation is unsustainable in law and accordingly liable to be set- aside. For the aforesaid reasons and findings, I have to proceed to pass the following: ORDER The Criminal Revision Petition is hereby allowed. Consequently, the order dated 15.11.2016 in DTCR NO.262/2008-09 passed by the second respondent Authorised Officer and Deputy Commissioner of Excise, Hassan District, Hassan and confirmed by the 5th Addl.District and Sessions Court at Hassan in Crl.A.No.245/2016 dated 01.08.2017 are hereby set- aside. :
The Bank guarantee in a sum of Rs.31,000/- executed by the petitioner herein, consequence upon the interim custody of motor bike in favour of the Authorised Officer, is ordered to be released in favour of the petitioner/owner of Motor bike bearing Regn.No.KA- 13/U-1743, on proper identification. DKB Sd/- JUDGE