Karnataka High Court
The State Of Karnataka vs K Venkataramana Gowda on 9 January, 2024
1 CRL.RP NO.89 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.89 OF 2019
BETWEEN:
THE STATE OF KARNATAKA
PSI SULLIA
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 01.
...PETITIONER
(BY SRI. CHANNAPPA ERAPPA, HCGP)
AND:
1 . K VENKATRAMANA GOWDA
AGED 59 YEARS,
S/O RUKMAYYA GOWDA,
R/O KASINAGODLU HOUSE,
AMARAMUDNOOR VILLAGE,
SULLIA TALUK,
D.K.DISTRICT - 574 239.
2 . THE AUTHORISED OFFICER AND
DEPUTY COMMISSIONER OF EXCISE,
D.K. MANGALURU.
....RESPONDENTS
(BY SRI. P.B.UMESH, ADVOCATE FOR
SRI. R.B.DESHPANDE, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W
SECTION 401 OF CR.P.C PRAYING TO a) ALLOW THE ABOVE
CRIMINAL REVISION PETITION AND SET ASIDE THE
AFORESAID JUDGMENT AND ORDER DATED 06.09.2018
PASSED IN CRL. APPEAL NO.5008/2018 ON THE FILE OF THE
V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
2 CRL.RP NO.89 OF 2019
MANGALURU; AND b) CONFIRM THE ORDER OF THE
AUTHORIZED OFFICER AND DEPUTY COMMISSIONER OF
EXCISE, D.K., MANGALURU DATED 28.12.2017 PASSED IN
NO.SDK/230/DTCR/2012-13, IN THE INTEREST OF JUSTICE.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 15.11.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The State is before this Court in a petition filed
under Section 397 r/w 401 of Cr.P.C, challenging the
order passed by the Sessions Court, allowing the appeal
filed by the respondent (a legal representative of
accused No.1) and thereby reversing the order passed by
the Authorized Officer/Deputy Commissioner confiscating
the vehicle for illegal transporting excisable article and
thereby violating of provisions of Karnataka Excise Act.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. According to the prosecution on 27.11.2012,
on receipt of credible information, at 2.15 p.m, the Police
Sub-inspector Sullia P.S, along with his staff intercepted
Hero Honda motor cycle bearing registration No.KA-
19/K-6063 ('vehicle' for short). After stopping, the rider
of the motor cycle i.e., accused No.2 Girish @
Chandrashekaraiah ran away. The pillion rider i.e.,
accused No.1 K.Venkataramana Gowda was found
holding a bag containing a corrugated box having 48
packets of 180 ml Windsor Delux Whisky and 20 packets
of 90 ml Windsor Delux Whisky, totally worth Rs.2,400/-.
The same was seized along with the vehicle in the
presence of witnesses by name Ummar and Suresh who
were proceeding on the said road. The seized articles and
accused No.1 were brought to the police station and
based on the report given by the PSI, case was
registered in Cr.No.206/2012 for the offences punishable
under Sections 32, 34 and 43 of Karnataka Excise Act.
4. So far as the vehicle is concerned, it was
submitted to the Authorized Officer/Deputy
Commissioner for passing necessary orders for
confiscation. In turn the Authorized Officer/Deputy
Commissioner issued Show cause notice to the RC holder
Sri.K.V.Rakesh, S/o accused No.1 K.Venkataramana
Gowda, as to why the vehicle shall not be confiscated. It
was returned with endorsement that the RC holder has
died. Thereafter the accused No.1 K.Venkataramana
Gowda, the father of deceased RC holder has appeared
and contested the matter.
5. Enquiry is conducted by the Authorized
Officer/Deputy Commissioner, wherein on behalf of the
prosecution PW-1 to 4 are examined including the
complainant and Ex.P1 to 5 are marked.
6. Accused No.1 K. Venkataramana Gowda has
examined a witness as DW-1. No documents are marked
on his behalf.
7. Vide order dated 28.12.2017 the Authorized
Officer/Deputy Commissioner has passed order
confiscating the vehicle for violating provisions of
Karnataka Excise Act.
8. Accused No.1 K.Venkataramana Gowda in his
capacity as the transferee of the Registration Certificate
challenged the said order before the Sessions Court in
Crl.A.No.5008/2018. Vide the impugned judgment and
order dated 06.09.2018, the Sessions Court has allowed
the appeal on the ground that though a detailed enquiry
was held before the Authorized Officer/Deputy
Commissioner, the FSL report (chemical report) with
regard to the seized whisky is not marked and therefore,
the prosecution has failed to prove that the vehicle was
used for commission of the offence punishable under
Sections 32, 34 and 43 of the Karnataka Excise Act,
1965 and as such liable to be confiscated.
9. Aggrieved by the same the State is before this
Court, contending that the impugned order is contrary to
the oral and documentary evidence placed on record and
as such liable to be set aside. It is erroneous, improper
and perverse, resulting in miscarriage of justice. The
Sessions Court has taken a liberal approach in the matter
of seized property and the same is likely to frustrate the
provisions of Karnataka Excise Act and would also
perpetuate commission of more such offences which
would have harmful effect on the Society. The power of
confiscation is independent of the criminal prosecution of
the offenders and has no bearing. The evidence placed
on record clearly establish that accused No.1
K.Venkataramana Gowda, who is opposing the
confiscation had mens rea. He has not produced any
document to show that he is the legal heir of the
deceased K.V.Rakesh - the RC holder of the vehicle.
Without examining these aspects, the Sessions Court has
erred in allowing the appeal and setting aside the order
passed by the Authorized Officer/Deputy Commissioner
and prays to allow the petition and confirm the order of
the Authorized Officer/Deputy Commissioner.
10. On the other hand learned counsel
representing the respondent/accused No.1
K.Venkataramana Gowda has supported the impugned
judgment and order and pray to reject the petition.
11. Heard arguments and perused the record.
12. Thus, it is the definite case of the prosecution
that on 27.11.2012, on receipt of credible information
complainant intercepted the vehicle, he found accused
Nos.1 and 2 transporting Windsor Delux whisky. The
rider of the vehicle viz., accused No.2 Girish @
Chandrashekaraiah managed to run away. However,
accused No.1 K.Venkataramana Gowda who is opposing
the confiscation of the vehicle in his capacity as the legal
representative of registered owner of the vehicle was
apprehended and from his possession, large quantity of
whisky was recovered.
13. The vehicle was produced before the
Authorized Officer/Deputy Commissioner to initiate
confiscation proceedings. In response to the show cause
notice issued to the registered owner of the vehicle,
accused No.1 K.Venkataramana Gowda has appeared
claiming that the RC holder K.V. Rakesh was no other
than his son and he died in an accident and therefore, as
his Legal representative he is contesting the confiscation
proceedings.
14. During the course of enquiry before the
Authorized Officer/Deputy Commissioner, the mahazar,
photographs of the seized vehicle, report of the
Investigating Officer, FIR and Enquiry Report are marked
on behalf of the prosecution as Ex.P1 to 5.
15. However, the respondent/accused No.1
K.Venkataramana Gowda has not stepped into the
witness box. On the other hand he has examined a
witness to prove that at the time when the alleged
incident took place he i.e., respondent/accused No.1
K.Venkataramana Gowda was at his residence and he
along with the vehicle were taken to the police station by
the concerned police.
16. Considering the oral and documentary
evidence placed on record, the Authorized Officer/Deputy
Commissioner ordered for confiscation of the vehicle on
the ground that it was used for transporting liquor and
thereby it is liable for confiscation under Section 43-A of
the Karnataka Excise Act.
17. The Sessions Court has allowed the appeal
filed by respondent/accused No.1 K.Venkataramana
Gowda solely on the ground that FSL report (chemical
report) to the effect that the material transported in the
vehicle contained alcohol is not marked. The
investigation reveal that the seized packets of the whisky
were sent to the chemical examiner and he has
submitted report to the effect that it contained 43.2% of
alcohol. It appears while evidence was led, by over sight
the said document is not marked. In the said
circumstances, the Sessions Court ought to have
remanded the matter to the Authorized Officer/Deputy
Commissioner to enable the prosecution to mark the
document and if so desired by the respondent/accused
No.1. K.Venkataramana Gowda to examine the chemical
analyzer as witness and thereafter to pass orders.
Instead of providing opportunity to the prosecution, the
Sessions Court has hurriedly proceeded to set aside the
order of the Authorized Officer/Deputy Commissioner. In
the above facts and circumstances, this Court finds that
it is a fit case to set aside the impugned order and
remand the case for fresh consideration by the
Authorized Officer/Deputy Commissioner and
accordingly, the following:
ORDER
(i) Petition filed under Section 397 r/w 401
Cr.P.C is here by allowed.
(ii) The impugned judgment and order dated
28.12.2017 in SDK/230/DTCR/2012-
2013 passed by Authorized
Officer/Deputy Commissioner of Excise,
D.K.Mangaluru and judgment and order
dated 06.09.2018 in Crl.A.No.5008/2018
on the file of V Addl.District and
Sessions Judge, D.K.Mangaluru are set
aside.
(iii) The matter is remanded to the
Authorized Officer/Deputy Commissioner
of Excise, D.K.Mangaluru to decide the
matter in accordance with law, after
providing opportunity to the prosecution
to prove the chemical report as detailed
in the body of the order.
(iv) The Registry is directed to send back the
Sessions Court record along with copy of
this order forthwith.
Sd/-
JUDGE
RR
