Karnataka High Court
Smt Sripathi Gupta vs State By Excise Police on 19 December, 2023
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CRL.RP No. 218 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 218 OF 2014
BETWEEN:
SMT.SRIPATHI GUPTA
W/O D.P.GUPTA
AGED ABOUT 53 YEARS
RESIDING AT NO. 6
ROHINI CLUSTERS, FLAT NO. F-1
AECS LAYOUT
2ND STAGE, 3RD MAIN
ASHWATNAGAR
BANGALORE-560 094
...PETITIONER
(BY SRI.B.S.MANJUNATH, ADVOCATE)
AND:
STATE BY EXCISE POLICE
Digitally RAJMAHAL VILAS ZONE
signed by BANGALORE
SUMITHRA R ...RESPONDENT
Location: (BY SMT.N.ANITHA GIRISH, HCGP)
HIGH COURT
OF THIS CRL.RP FILED U/S.397 & 401 CR.P.C., PRAYING TO
KARNATAKA SET ASIDE THE ORDER DATED 14.03.2014 PASSED BY THE
C.M.M., BANGALORE IN C.C.NO.19293/2012 AND
CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE
PETITIONER UNDER SECTION 227 OF THE CRIMINAL
PROCEDURE CODE, 1973 AS PRAYED FOR.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 218 of 2014
ORDER
Revision Petitioner/accused No.2 feeling aggrieved by
the order passed by the Trial Court on the file of Chief
Metropolitan Magistrate in CC.No.19293/2012 dated
14.03.2014 preferred this Revision Petition.
2. Parties to the Revision Petition are referred with
their ranks as assigned in the Trial Court for the sake of
convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on
perusal of Trial Court records, so also the impugned order
under revision the following points arise for consideration:
1) Whether the impugned order under revision
passed by the Trial Court in rejecting the
application filed by accused No.2 for the offence
punishable under Section 227 of Cr.P.C. is
perverse, capricious and legally not sustainable?
2) Whether the interference of this Court is
required?
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5. The factual matrix leading to the case of prosecution
can be stated in nutshell to the effect that on 27.08.2011
at about 7.30 a.m. on credible information received by
CW.1 Azad Peer, Excise Inspector of Rajamahal Vilas
Range, Bengaluru, secured the panch witnesses and
search warrant. On proceeding to the spot along with staff
and panchas to the stationary shop run under the name
and style of M/s Pankaj Enterprises situated at No.14/1,
Ashwath Nagar, Sanjayanagar Main Road, Bengaluru, it
was found that 20 bottles of illicit liquors of different
brands was stored in the shop without there being any
valid pass or permit to sell the same for the customers.
Accused No.1 who was in the shop has been arrested and
out of the 20 liquor bottles of different brands samples
were taken. The said illicit liquor were seized under the
panchanama. Accused No.2 has involved in this case since
she was the owner or occupier of the shop premises and
allowed accused No.1 to illegally store the liquor bottles in
the shop for sale.
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6. In response to the summons accused No.2 has
appeared before the Trial Court and has filed an
application under Section 227 of Code of Criminal
Procedure, 1973(hereinafter for brevity referred as "The
Cr.P.C.) for discharging her from the case, since there are
no any prima facie material evidence placed on record by
the Investigating Officer to prove the charge against
accused No.2 for the offence under Section 38-A of
Karnataka Excise Act, 1965. The said application came to
be rejected and the same is challenged in the present
revision petition.
7. The prosecution to prove the offence under Section
38-A must prove that accused No.2 either being owner or
occupier of the shop has allowed accused No.1 to illegally
store the liquor bottles in the shop for sale. In this regard,
it is profitable to refer Section 38-A of Karnataka Excise
Act, it reads as follows:
"38-A.Penalty for allowing premises, etc.,to be used
for the purpose of committing an offence under this
Act.-Whoever, being the owner or occupier or
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having the use or care or management or control,
of any place, room, enclosure, space, vessel,
vehicle, or place knowingly permits it to be used for
the purpose of commission by any other person of
an offence punishable under Sections 32, 33, 34,
36 and 37 shall, on conviction, be punished as if he
has committed the offences punishable under the
respective sections".
Looking to the charge sheet material, it is evident
that the prosecution alleges that accused No.2 has
committed an offence punishable under Section 38-A of
Karnataka Excise Act. According to the prosecution
accused No.2 being the owner or occupier of the shop
premises was having conscious knowledge that the shop
premises is being used by accused No.1 for sale of illicit
liquor.
8. On careful perusal of the chare sheet materials, it
would go to show that on getting search warrant, the raid
was conducted on the shop premises run under the name
and style of M/s Pankaj enterprises situated at No.14/1,
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Ashwath Nagar, Sanjayanagar Main Road, Bengaluru, 20
Bottles of liquor of different brands were found in the said
shop. Accused No.1 who was running the said business
under the name and style of M/s. Pankaj enterprises was
arrested and the liquor bottles found in the shop were
seized under the panchanama. The basis on which accused
No.2 was involved in this case as owner or occupier of the
shop premises is the notice issued by the Investigating
Officer dated 09.01.2012. The owner of the shop premises
has given reply dated 12.01.2012 stating that she has
leased the shop premises to Ms.Sripathi Gupta i.e.,
accused No.2 for running the stationary business under
the name and style of M/s Pankaj enterprises. Therefore,
from the said material evidence it is found that accused
No.2 has taken shop premises for running stationary
business under the name and style of M/s Pankaj
enterprises.
9. Accused No.2 has contended that she has given
the said business to be run by accused No.1 and accused
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No.1 was running the said business. When the raid was
conducted accused No.1 was present in the shop and
conducting the business, wherein 20 liquor bottles were
found and the same were seized. The prosecution has not
placed any material evidence on record to prove the
conscious knowledge of accused No.2 who has entrusted
her business to be run by accused No.1, also to carry out
any illegal business in the said shop. The entrustment of
business under the name and style of M/s Pankaj
enterprises is to carry out the stationary business which
she could not run. Therefore it was the intention of
accused No.2 to allow accused No.1 to carry out the said
stationary business. If any illegal activity is being carried
out by accused No.1 then it is for him to answer and in
that case either the owner or occupier of the shop
premises cannot be made liable to answer the alleged
illegal possession of liquor bottles found in the shop of M/s
Pankaj enterprises, unless the conscious knowledge of
accused No.2 is prima facie established by the
prosecution.
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10. Learned counsel for accused in support of his
contention as referred above relied on the Co-ordinate
Bench judgment of this Court in Sri Sharanabasava s/o
Mallikarjuna Vs. The State of Karnataka, through Excise
Sub-Inspector in Criminal Petition No.200523/2019,
dated 23.01.2020, wherein this Court on similar facts
involved in the present case has held that in the absence
of prima facie material to show that accused No.2 being
the owner of the premises had knowingly permitted
accused No.1 to occupy and retain the business or the
conscious knowledge of accused No.2 who has permitted
to conduct her business is established. Then owner or
occupier cannot be made liable for the alleged seizure of
liquor bottles from the shop premises without any valid
permit or license from the concerned authority.
11. In the present case also other than the notice
issued by the Investigating Officer dated 09.01.2012 and
the reply given by the owner of the shop, there is no any
material evidence to show that accused No.2 was having
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conscious knowledge about the sale of liquor bottles said
to have been seized from the shop premises of M/s Pankaj
enterprises which was entrusted to be run by accused
No1. When no prima facie material evidence was produced
by Investigating Officer to establish the conscious
knowledge of accused No.2 for sale or store of liquor
bottles in the shop premises of M/s Pankaj enterprises, the
charge under Section 38-A of Karnataka Excise Act against
accused No.2 cannot be legally sustained. Therefore, the
continuation of the proceedings against accused No.2 is
totally unwarranted, since there being no prima facie
material evidence against accused No.2. Consequently,
proceed to pass the following.
ORDER
Revision Petition filed by Revision Petitioner/accused
No.2 is hereby allowed.
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The order passed by the Trial Court on the
application filed by accused No.2 under Section 227 of
Cr.P.C. dated 14.03.2014 is hereby set aside.
Accused No.2 is discharged from the charge
levelled against her for the offence under Section 38-A
of Karnataka Excise Act.
Registry to send back the records to Trial Court
with a copy of this order.
SD/-
JUDGE
GSR
