Karnataka High Court

Smt Amangoua Magne Arlatte vs State Of Karnataka on 14 March, 2022

Bench: M.Nagaprasanna

                                        1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 14TH DAY OF MARCH, 2022

                                      BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

                  CRIMINAL PETITION No.793 OF 2022


BETWEEN:

SMT. AMANGOUA MAGNE ARLATTE
W/O SANGARE DIAKARIDJA
AGED ABOUT 33 YEARS,
RESIDING AT NO.39,
IRFANS'S HOUSE, 3RD CROSS,
RIGENCY PARK, NAGENAHALLI
BENGALURU - 560 032

PERMANENT RESIDENT OF
IVORY COST, COTE D IVORY
PINCODE - 225.
                                                           ... PETITIONER

(BY SRI KALEEM *SABIR, ADVOCATE)


AND:

1.     STATE OF KARNATAKA BY
       BY KOTHANUR POLICE,
       BENGALURU - 560 032
       REPRESENTED BY
       STATE PUBLIC PROSECUTOR.

2.     M.MANJUNATHA
       POLICE INSPECTOR
       KOTHANUR POLICE

        * Corrected vide Chamber order dated 06/04/2022.
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     BENGALURU - 560 032
     REPRESENTED BY
     HIGH COURT OF KARNATAKA.
                                               ... RESPONDENTS
(BY SMT.YASHODA K.P., HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE PROCEEDINGS INITIATED
AGAINST HER IN C.C.NO.27075/2020 ON THE FILE OF THE
I-MMTC, BANGALORE WHICH IS ARISING OUT OF CR.NO.113/2020
OF KOTHANUR P.S., BANGALORE FOR THE OFFENCE P/U/S 34, 36
OF KARNATAKA EXERCISE ACT AND SEC.12 OF PASSPORT ACT. AS
AN ABUSE OF PROCESS OF LAW.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

The Petitioner is before this Court calling in question the

proceedings in C.C.No.27075/2020 pending on the file of the

Metropolitan Magistrate Traffic Court - 1, Bengaluru, registered

for the offences punishable under Sections 34 and 36 of the

Karnataka Excise Act, 1965 and Section 12 of the Passport Act,

1967, arising out of crime No.113/2020. The petitioner is

accused No.2.

2. Heard Sri Kaleem Sabir, learned counsel for the

petitioner, Smt. Yashoda K.P., learned High Court Government

Pleader for respondent Nos.1 and 2 - State.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:

It is alleged that on receipt of credible information that

certain African Nationals are running illegal African kitchen near

Nagenahalli, the premises of the petitioner was searched. At the

time of search, they seized about 250 liters of liquor costing

Rs.1,00,000/-, arrested the petitioner and registered a crime

against the petitioner along with others in crime No.113/2020.

On completion of investigation, the police filed charge sheet

against the petitioner and other accused for the offences

punishable under Sections 34 and 36 of the Karnataka Excise

Act, 1965 and Section 12 of the Passport Act, 1967.

4. Learned counsel for the petitioner would submit that the

entire issue of bringing charges against the petitioner stands

covered by the judgment rendered by the Co-ordinate Bench of

this Court in the case of LAKSHMI VENKATESHWARA VS.

STATE OF KARNATAKA reported in 2019 SCC OnLine Kar

3316, wherein it is held as follows:

"3. The case of the prosecution is that on credible information, the lodging house belonging to the petitioner herein viz., Lakshmivenkateshwara Boarding and Lodging was raided on 08.10.2016 by the Deputy Superintendent of Excise of Shahapur Division along with panchas. They found 4441 numbers of bottle corks of different companies in a plastic bag in one of the rooms in the lodge.

4. Learned counsel for the petitioner at the outset submitted that the investigating officer has failed to comply with the requirements of Sections 53 and 54 of the Act while conducting the search and seizure and therefore, the very initiation of the proceedings are illegal and tainted. Further, the allegations made against the petitioner do not attract the ingredients of the offences under Sections 11,12 and 13 of the Act. These offences relate to possession or manufacture of excisable articles, transport of intoxicant, Permits for transport and manufacture of excisable article prohibited except under a licence. Seizure of bottle carks do not fall under any of the provisions. Therefore, the prosecution of the petitioner for the alleged offences is wholly opposed to the provisions of the Act and consequently, abuse of the process of the Court.

5. Learned SPP-II has argued in support of the impugned charge sheet contending that the investigating officer has followed all the requirements laid down under the Act. Huge quantity of caps were found in the lodging house which indicate that the caps were stored only for the purpose of illegal manufacture of prohibited liquor and hence, there is prima-facie case for prosecution of the petitioner.

6. It is not in dispute that during raid 4441 corks or bottle caps were found in a bag. It is not clear as to whether the said packet was found in any of the room of the lodge occupied by the inmates or in the room which was in exclusive possession of the owner, none- the-less the articles found in the possession of the petitioner in my view do not constitute any of the offence punishable under Sections 11 to 13 of the Act.

7. Section 11 deals with the transport of intoxicant. Section 13 deals with manufacture of 'excisable articles'. The section reads as under:

8. Manufacture, etc., of excisable article prohibited except under a licence:

(1) No person shall-

(a) manufacture or collect an intoxicant; or

(b) cultivate hemp plant; or

(c) tap a toddy producing tree or draw toddy from any tree; or

(d) construct or work a distillery or brewery; or

(e) bottle liquor for sale; or

(f) use, keep, or have in his possession, any materials, still, utensils, implement or apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy,

Except, under the authority and subject to the terms and conditions of a licence granted by the Deputy

Commissioner in that behalf or under the provisions of Section 18.

(2) A licence granted under this Section shall extend to and include servants and other persons employed by the licensee and acting on his behalf.

9. Section 14 which deals with possession of excisable articles 14 reads as under:

10. Possession of excisable articles in excess of the quantity prescribed- (1) The State Government may, by notification, prescribe a limit of quantity for the possession of any intoxicant:

Provided that different limits may be prescribed for different qualities of the same article.

(2) No person shall have in his possession any quantity of any intoxicant in excess of the limit prescribed under sub-section (1), except under the authority and in accordance with the terms and conditions of -

(a) a licence for the manufacture, cultivation, collection, sale or supply of such article, or

(b) a permit granted by the Deputy Commissioner in that behalf.

11. A bare reading of the above provisions would indicate that a person found in possession of any excisable articles as defined under Section 2(6) of the Act could be tried and prosecuted for the above

offences. "Excisable Article" is defined under Section 2(6).

2 (6) "Excisable article" means-

(a) any liquor;

(b) any intoxicating drug;

(d) other narcotic drugs, narcotics and non-narcotic Drugs which the State Government may by notification declare to be an excisable article;

The caps by themselves do not fall within the definition of "excisable articles". There are no allegation in the FIR that the said caps were intended for the manufacture or sale of illicit liquor. From the reading of panchanama, it cannot be gathered as to whether any manufacturing activity was carried on in the lodging house."

This Court in another case

CRL.A.NO.2815/2010

"14. The investigation under the special Act for special offences, duty is casted on investigation agency to do the investigation within the parameter of the Act. The seized articles should be proved that it was contra band. The search and seizer should be proved beyond any reasonable doubt. Further, there should not be violation of any law governing the investigation.

15. The Hon'ble Apex Court is held in the case of K.L. Subbayya V/s. State of Karnataka, reported in (1979) 2 SCC 115 that the violation of Sections 53 and 54 of the Karnataka Excise Act, 1965 vitiates the entire investigation. It reads as follows:

"3. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section 54 were not at all complied with.

4. This, therefore, renders the entire search without jurisdiction and, as a logical corrolary', vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which to argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non- compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him."

The said rule is relied on by the appellant's counsel.

16. On perusing of the above said authority, it is crystal clear that Section 54 of the Act has to be complied. The warrant for search and seizure should be obtained for the offences under Sections 32, 33, 34, 36 and 37. It is only in the event of contingency, Section 54 provides for search and seizure by excise officials without warrant to prevent the offender escaping or concealing the evidence that may be found against the accused. Whatever the information that the Commissioner of Excise or Police Officer had received regarding the commission of offence punishable under Sections 32, 33, 34, 36 or 37 of the Act would be rendered without jurisdiction and vitiates conviction. This aspect has not been considered by the trial Court.

17. Admittedly, PW1/CW1 had received information that a person is selling illicit arrack in the public place. Thereafter, he summoned to panchas, then went to seen of occurrence. He was watching the same by standing at the distance, they noticed that the information received was found to be correct and the accused was found selling illicit arrack to the general public by keeping in a rubber tubes and vessel (Bindige) in his possession. Therefore, he filed the complaint at Ex.P2. In the presence of panchas, PW1 drew a seizure panchanama as per Ex.P1 and seized the illicit liquor, cash of Rs.110/- vessels.

18. So far as independent pancha witnesses PW2 and PW8 are concerned they are not supported the case of the prosecution. The CW10 the Police Inspector, who registered the complaint on the basis of the grievance given by CW1.

19. The trial Court found the evidence of PW1, 3 and 4 the corroborative of the documentary evidence at Ex.P1 Panchanama. Seizure of article is also proved by the said evidence. Therefore, the trial Court applied the

presumption available under Section 40 of Karnataka Excise Act. On the basis of evidence of PW6 and Ex.P4 the chemical analysis report, the trial Court came to the conclusion that the medical seized is intoxicant. It was found, it was not fit to consume having regard to the quantity methyl and the trial Court acquitted the accused for the offences punishable under Section 272 and 328 of IPC.

20. The trial Court convicted the accused for the offences punishable under Section 273 of IPC.

21. In view of non following the procedure laid down under Section 53 and 54 of the Karnataka Excise Act, whole investigation is vitiated. No reasons are assigned by the Investigating Officer as to why the procedure laid down under law was not following before proceeding for investigation. Infact, no crime was registered after receiving the information regarding commission of offence. Therefore, investigation appears to have done before registration of the crime that is also a serious error committed by the trial Court. When the Investigating Officer proceeds with the investigation without obtaining any search warrant or seizure warrant from the Magistrate, corroboration by independent witness is necessary. In this case, pancha witnesses have not supported the case of the prosecution. No witness examined for having purchased noxious drink from the accused. Therefore, I find that the accused cannot be convicted for the above said offences. Hence, point No.1 answered in the affirmative and point No.2 answered in the negative. Hence, I proceed to pass the following:

ORDER

The appeal filed by the appellant-accused against the judgment of conviction and sentence dated, 18.06.2010 passed by the Presiding Officer, Fast Track and Additional Sessions Judge, Hukkeri at Hukkeri

sitting at Gokak in Sessions Case No.35/2010 for the offence punishable under Section 34 of Karnataka Excise Act and for the offence punishable under Section 273 of IPC is allowed. The conviction and sentence imposed for the above offences is hereby set aside.

The accused is acquitted of all the offences alleged against him. Fine amount if deposited by the accused shall be refunded to him."

5. The aforesaid position of law is not disputed by the

learned High Court Government Pleader appearing for the

respondents - State.

6. In the light of the judgments rendered (supra), I deem it

appropriate to obliterate the proceedings against the petitioner

for the same reasons as is rendered by the Co-ordinate Benches

of this Court.

7. For the aforesaid reasons, I pass the following:

ORDER

(i) The criminal petition is allowed.

(ii) The proceedings in C.C.No.27075/2020 pending on