Karnataka High Court
Ati Sonam Kaur vs The State on 18 April, 2024
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CRL.P No. 200247 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL PETITION NO.200247 OF 2024 (482)
BETWEEN:
ATI SONAM KAUR W/O CHARAN PREETSINGH KAUR
AGE: 41 YEARS, OCC: BUSINESS,
R/O VASAWADATTA CEMENT COLONY, SEDAM,
TQ. SEDAM, DIST. KALABURAGI-585222.
...PETITIONER
(BY SRI AVINASH A. UPLOANKAR, ADVOCATE)
AND:
THE STATE THROUGH
EXCISE POLICE STATION, SEDAM,
DIST. KALABURAGI, NOW REPRESENTED,
ADDL. SPP HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585107.
Digitally signed
by ...RESPONDENT
KHAJAAMEEN L
MALAGHAN (BY SMT. ANITA M. REDDY, HCGP)
Location: HIGH
COURT OF THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
KARNATAKA OF CR.P.C. PRAYING TO EXERCISE THE INHERENT POWER
UNDER SECTION 482 CR.P.C EXAMINE THE RECORDS AND
QUASH THE TAKING COGNIZANCE IN C.C.NO.698/2017 DATED
28.11.2017 (CRIME NO.181/2016-17) FOR THE OFFENCES
UNDER SECTIONS 32 AND 34 OF K.E. ACT AND 273 OF IPC
PENDING BEFORE THE COURT OF CIVIL JUDGE AND JMFC
COURT AT SEDAM AGAINST THE PETITIONER.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 200247 of 2024
ORDER
This petition is filed under Section 482 of Cr.P.C.
seeking to quash the order of taking cognizance in
C.C.No.698/2017 dated 28.11.2017 (Crime No.181/2016-
17) for the offences punishable under Sections 32 and 34
of Karnataka Excise Act and under Section 273 of IPC,
pending before the Court of Civil Judge and JMFC, Sedam,
as against the petitioner herein.
02. The Excise Inspector attached to the Assistant
Commissioner of Excise Department, Kalaburagi, had
received a credible information that the vehicle bearing
Reg.No.KA-32-C-7418, a Cement Tanker Lorry was being
used for transportation of adulterated toddy and chloral
hydrate powder. It is an offence punishable under Sections
32 and 38 (A) of the Karnataka Excise Act. Since the
matter is urgent and there was no time to obtain the
search warrant from the Court, made a report about the
same and then went to the Kotamapalli Toll Gate on
Hyedarabad - Sedam National Highway. There they
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intercepted the said Lorry which was driven by the
accused No.2 - Haradev Singh. On search, he found that it
contained 100 liters of adulterated toddy and 01 kg of C.H.
powder. Therefore, seized the said lorry as well as the
contraband material, drew a spot mahazar and returned to
the Head Quarters. It was alleged that the accused No.1,
who is the petitioner herein is the owner of the said lorry.
The investigation was handed-over to the Investigating
Officer by registering the same in Crime No.181/2016-17.
The seized articles were sent for chemical examination.
During pendency of the case, the report of the chemical
examiner was obtained and the vehicle was released to
the R.C. Holder with conditions. After completion of
investigation, a complaint was filed before the Trial Court,
which took cognizance of the offence and issued summons
to the petitioner and the other accused.
03. Now the petitioner accused No.1 who is the
owner of the vehicle has approached this Court contending
that there is no evidence to state that the petitioner had
involved in the above said offences. It is contended that
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the raid conducted without registering the FIR is not
sustainable in law. It is contended that taking cognizance
of the case, against the petitioner is illegal, improper and
that there is absolutely no cogent material to implicate the
petitioner to the alleged offences. It is contended that the
petitioner was unaware of the alleged transportation of the
contraband goods. Therefore, the case against the
petitioner is liable to be quashed.
04. On issuance of notice, the respondent appeared
through learned High Court Government Pleader.
05. Arguments by the learned counsel for the
petitioner and the learned High Court Government Pleader
were heard.
06. The learned counsel for the petitioner
contended that there is no nexus between the alleged
offences and the petitioner. Simply, because the petitioner
is the owner of the vehicle, she cannot be made an
accused in the case. It is contended that the concept of
vicarious liability is unknown to criminal jurisprudence.
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Therefore, the petitioner could not have been arrayed as
an accused. In this regard he relies upon the judgment of
the Delhi High Court, in the case of T.R. Bhagat vs.
Director General of Central Excise and others in
Crl.M.C.No.4104/2009. He also relied on the judgment
of this Court in Criminal Revision Petition
No.129/2021 in the case of Sri. Dayananda @ R. Babu
and another one vs. State of Karnataka. He also
reiterated the other contentions taken up in the petition.
07. Per contra, the learned High Court Government
Pleader would contend that the provisions of the
Karnataka Excise Act, permit the Investigating Officer to
make a report stating the reasons why the search warrant
could not be obtained. Therefore, no fault can be found
with the investigation. However, she conceded that the
concept of vicarious liability is not applicable for criminal
jurisprudence. Hence, she requested the Court to dismiss
the petition.
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08. The provisions of Sections 32 and 38 (A) of
Karnataka Excise Act, read as below:-
"32. Penalty for illegal import. Etc.- (1)
Whoever, in the contravention of this act, or any
rule, notification or order, made, issued or given
thereunder, or of any licence or permit granted
under this Act imports, exports, transports,
manufactures, collects or possesses any
intoxicant, shall on conviction, [be punished for
each offence with rigorous imprisonment for a
term which may extend to [five years and with
fine which may extend to fifty thousand rupees]]
[ provided that the punishment.-
(i) for the first offence shall be not less than [
one year rigorous imprisonment and fine of not
less than ten thousand rupees]; and
(ii) for the second and subsequent offences shall
not less than [two year rigorous imprisonment
and fine of not less than twenty thousand
rupees] for each such offence.
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(2) Whoever in contravention of this Act, or of
any rule, notification or order made, issued or
given thereunder, or of any license or permit
granted under this Act,-
(a) save in the cases provided for in Section
37, sells any intoxicant; or
(b) cultivates or fails to take the measures
prescribed for checking the spontaneous growth
or for the extirpation of the hemp plant; or
(c)taps or draws toddy from any toddy- brewery;
or
(d) constructs or works any distillery or
brewery; or
(e) uses, keeps or has in his possession any
materials, still utensils, apparatus or implement
whatsoever for the purpose of manufacturing
any intoxicant other than toddy; or
(f) remove any intoxicant from any distillery,
brewery or warehouse licensed, established or
continued under this Act; or
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(g) bottles any liquor;
shall on conviction [be punished for each offence
with rigorous imprisonment for a term which
may extend to [five years and with a fine which
may extend twenty thousand rupees;]
[ provide that the punishment,-
(i) for the first offence shall be not less than
[one year rigorous imprisonment and fine of not
less than five thousand rupees];
and
(ii) for the second and subsequent offences shall
be not less than [one year rigorous
imprisonment and fine of not less than ten
thousand rupees] for each such offence;]
[(3) Whoever, being the owner of in charge of
management of control of any public place allows
consumption of liquor or whoever consumes
liquor in any public place in which consumption
of liquor is not permitted under a license granted
by the Excise Commissioner or the Deputy
Commissioner, in contravention of the provisions
of Section 15-A, shall on conviction be punished
with fine which shall not be less than rupees two
hundred but which may extend to [five thousand
rupees].]
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[(4) Whoever violates the provisions of Section
13-A or the Rules made thereunder shall on
conviction be punished with a fine or rupees five
thousand for each time, up to first five offences.
In case of subsequent offence, he shall be
punished with an imprisonment for a term of six
months or with fine which may extend to ten
thousand rupees or with both.]"
"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 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. "
09. It is pertinent to note that in the case of
urgency a report may be prepared as provided under
Section 54 of the Karnataka Excise Act, which reads as
below :-
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"54. Power to search without warrant.-
Whenever the Excise Commissioner or a Deputy
Commissioner or any Police Officer not below
the rank of an Officer-in-charge of a Police
Station or any Excise Officer not below such
rank as may be prescribed, has reason to
believe that an offence under Section 32,
Section 33, Section 34, Section 36 or Section 37
has been, is being, or is likely to be, committed,
and that a search warrant cannot be obtained
without affording the offender an opportunity of
escape or of concealing evidence of the offence,
he may, after recording the grounds of his
belief.-
(a) at any time by day or by night enter and
search any place and seize anything found
therein which he has reason to believe to be
liable to confiscation under this Act; and
(b) detain and search and, if he thinks proper,
arrest any person found in such place whom he
has reason to believe to be guilty of such
offence as aforesaid."
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10. Thus, it is evident that in case of urgency,
recording such reasons, the Excise Inspector is permitted
to proceed for the raid. Hence, no fault can be found with
respect the procedure followed the Investigating Officer.
11. Coming to the second contention, it is relevant
to note that the petitioner was not present at the spot
when the vehicle was intercepted. There is no material in
the FIR or in the charge-sheet to show that the petitioner
who was the owner of the lorry was in the knowledge of
the fact that the contraband material was being
transported in the said lorry. In other words, she is made
liable only because she happens to be the owner of the
lorry.
12. The principle of vicarious liability is unknown to
the criminal jurisprudence. Mens-rea is an essential
ingredient to fasten any criminal liability. It is pertinent to
note that in the case of T.R. Bhagat vs. Director
General of Central Excise and others in
Crl.M.C.No.4104/2009, the Delhi High Court, came to
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the conclusion that when the criminal act has been
committed by a company and when there was no
allegation in the complaint to show that as to how and in
what manner the accused was in-charge of and
responsible for the day to day affairs, the prosecution is
not maintainable.
13. Therefore, when the nexus between the offence
and knowledge of such offence to the petitioner is not
shown, the petitioner cannot be held liable for criminal
prosecution. If the petitioner had knowingly allowed the
accused No.2 to use the vehicle for transportation of
contraband material, she could have been prosecuted for
the alleged offences. Therefore, I do not find any reason to
hold that the petitioner, who was unaware of use of the
vehicle by the accused No.2 for illegal purpose, is liable to
be prosecuted. Any such prosecution would be nothing but
abuse of process of law.
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14. The learned counsel for the petitioner has also
placed reliance on a judgment of this Court in Criminal
Revision Petition No.129/2021 in the case of Sri.
Dayananda @ R. Babu and another one vs. State of
Karnataka, wherein it was held that the registration of a
FIR on the basis of a panchanama is not sustainable in law
and cognizance could not have been taken on the basis of
a spot mahazar.
15. For the above reasons, the petition succeeds.
Hence, the following;
ORDER
I. The petition is allowed.
II. The proceedings in C.C.No.698/2017 for the
offences punishable under Sections 32 and 34
of the Karnataka Excise Act and Section 273 of
IPC, pending before the Civil Judge and JMFC,
Court at Sedam, is quashed, so far as the
petitioner is concerned.
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The office is directed to intimate this order to the
concerned Court accordingly.
Sd/-
JUDGE
KJJ
CT:PK
