Sri Benniraj vs State Of Karnataka
2021 Latest Caselaw 3164 Kant

                             1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 18TH DAY OF AUGUST, 2021

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

       CRIMINAL PETITION No.2724 OF 2021

BETWEEN

Sri Benniraj
S/o Benni S D
Aged about 46 years
R/at No.96, 3rd, 4th & 5th Floors
2nd Cross, S.T.Bed Layout
Koramangala 4th Block
Bengaluru - 560 034

Also at:
No.377, 6th Cross
8th Main, 4th Block
Koramangala
S.T.Bed Layout
Koramangala
Bengaluru - 560 034
                                         ...Petitioner
(By Sri G.M.Srinivasa Reddy, Advocate)

AND

State of Karnataka
R/by Excise Sub Inspector
Vivekangar Range
Bengaluru South
                                  2



Through Public Prosecutor
High Court Building
Bengaluru - 560 001
                                                   ...Respondent
(By Sri R.D.Renukaradhya, HCGP)

      This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the entire proceedings in
C.C.No.10411/2020 against the petitioners herein for
the offences punishable under Sections 14, 32(1), 38(A)
and 43 of Karnataka Excise Act pending before the 1st
Traffic Court, Mayohall, Bengaluru.

      This Criminal Petition coming on for admission this
day, the Court made the following:

                             ORDER

Heard the petitioner's counsel and the learned High

Court Government Pleader for respondent-State.

2. This is a petition under Section 482 of

Cr.P.C., for quashing the proceedings in

C.C.No.10411/2020 on the file of the Metropolitan

Magistrate Traffic Court (MMTC-1), Mayohall, Bengaluru

against the petitioner in relation to offences punishable

under Sections 14, 32(1), 38(A) and 43 of the

Karnataka Excise Act.

3. Learned counsel for the petitioner seeks

quashing of the proceedings on three grounds, firstly,

that the raid was conducted without registering the FIR,

secondly, that the search warrant was not obtained and

thirdly, that the order of the Magistrate does not

indicate application of mind while taking cognizance of

the offences. In support of his arguments, he relies

upon the judgments of this Court in the case of

BASAVRAJ VS. STATE OF KARNATAKA THROUGH

KHADAKLAT POLICE STATION, DHARWAD

[2020(3) KCCR 2141] and SHASHIKUMAR VS. THE

STATE OF KARNATAKA AND ANOTHER

[CRL.P.NO.5517/2019].

4. Learned High Court Government Pleader

submits that before conducting the raid, the raiding

officer i.e., the Excise Inspector recorded reasons for not

being able to obtain search warrant and therefore the

search cannot be said to be bad. Then in relation to non

registration of FIR, he relies upon the judgment of this

Court in the case of TASLEEM N.P. @ MUHAMMED

THASLIM N P VS. STATE OF KARNATAKA (2020(6)

KLJ 638)

5. The prosecution case is that on 29.08.2019

the Deputy Commissioner of Excise received credible

information about the illegal storage of certain quantity

of liquor and directed his subordinates to conduct raid

and seize the liquor. Accordingly the Excise Officer

conducted raid at about 11.30am on 29.08.2019 and

seized the liquor. After completion of investigation

charge sheet came to be filed.

6. Learned High Court Government Pleader

submits that the search warrant could not be obtained

because any delay in conducting raid would have

resulted in destruction of evidence and for this reason

the Excise Inspector recorded reasons and then proceeded

to conduct raid. This procedure is strictly in accordance

with Section 54 of the Karnataka Excise Act. Therefore

in this regard, the argument of the petitioner's counsel

fails.

7. So far as registration of FIR is concerned, it is

to be stated that FIR has to be registered only after

receipt of information that an offence has been

committed. The credible information does not indicate

an offence having been committed. Though it is held in

the case of Basavraj (supra) that registration of FIR is

must, but in the case of Taslim N.P. @ Muhammed

Thasleem N.P. (supra) there was an occasion for this

Court to deal with a similar situation in connection with

NDPS offences, it is clearly held in para 10 of the said

judgment as:

10. Examined whether the ratio in Lalita Kumari (supra) is applicable in a situation where a police officer only receives a credible or secret information about an offence which is about to be committed, I may with great respect

observe that the primary duty of police is to prevent an offence from happening; immediately after receiving the information, a police officer has to proceed to spot for averting the crime, and taking such other measures as the situation demands. In Lalita Kumari (supra), the focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands.

Thereafter if he prepares a report, it may be treated as FIR for further course of action. Sometimes, offences do take place in the presence of the police officer. In such a situation, his first duty is to arrest the accused and collect the evidence, and not registration of FIR.

8. Therefore in this case what the Excise officer

received was a secret of credible information before

conducting raid, it was not certain at that point of time

whether really an offence has been committed or not.

In this view, registration of FIR was not necessary.

9. However, the last point of argument of the

petitioner's counsel is to be upheld, because, the order

of the learned Magistrate does not indicate application of

mind while taking cognizance. Learned Magistrate has

just endorsed, "Perused the charge sheet & enclosures.

Accused is enlarged on Court bail. Cognizance of the

offences punishable U/Sec. 14, 32(1), 38(A) and 43 of

K.E.Act is taken against accused person".

10. It is held by this Court in the case of

Shashikumar (supra) that at the time of taking

cognizance the Magistrate has to apply his mind. What

required is subjective satisfaction for taking cognizance.

At least a brief order has to be passed indicating

application of mind. For this reason this petition has to

succeed. Hence the following:

ORDER

Petition is allowed.

             The   order   of   taking     cognizance   in
        C.C.No.10411/2020       by   the     Metropolitan

Magistrate Traffic Court (MMTC-1), Mayohall Bengaluru, against the petitioner is set-aside.

The matter is remanded to the trial Court for passing order afresh on taking cognizance by showing application of mind to the materials on record.

Sd/-

JUDGE

Kmv/-