Karnataka High Court
M/S Shamanuru Wines vs State By P.S.I. Of Excise Police Station on 1 April, 2025
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2025:KHC:13590
WP No. 17937 of 2023
C/W CRL.P No. 4043 of 2024
CRL.P No. 4922 of 2024
CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
WRIT PETITION NO. 17937 OF 2023 (GM-RES)
C/W
CRIMINAL PETITION NO. 4043 OF 2024
CRIMINAL PETITION NO. 4922 OF 2024
CRIMINAL PETITION NO. 4983 OF 2024
WRIT PETITION NO. 20898 OF 2024 (GM-RES)
IN WP No. 17937/2023
BETWEEN:
MR. JOEL PREETHAM D'SOUZA,
S/O. LATE ANTHONY D'SOUZA,
AGED ABOUT 36 YEARS,
R/A NEAR SHIRVA MASJID,
SHIRVA VILLAGE, UDUPI TALUK,
Digitally UDUPI DISTRICT-574 116.
signed by
LAKSHMI T ...PETITIONER
Location: (BY SRI RAJESHA SHETTIGARA, ADVOCATE)
High Court
of Karnataka
AND:
THE STATE OF KARNATAKA,
THE EXCISE SUB INSPECTOR,
OFFICE OF DEPUTY EXCISE COMMISSIONER,
KARNATAKA EXCISE DEPARTMENT,
UDUPI TALUK AND DISTRICT-576 101,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENT
(BY SMT. RASHMI PATEL, HCGP)
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NC: 2025:KHC:13590
WP No. 17937 of 2023
C/W CRL.P No. 4043 of 2024
CRL.P No. 4922 of 2024
CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA R/W SECTION 482 OF CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST PETITIONERS PENDING ON THE FILE
OF III ADDL. CIVIL JUDGE AND JMFC, UDUPI IN C.C.NO.
355/2018 VIDE (ANNEXURE-C) FOR THE OFFENCES
PUNISHABLE U/S 11, 14, 15, 32(1) AND 38(A) OF KARNATAKA
EXCISE ACT, 1965 ETC.
IN CRL.P NO. 4043/2024
BETWEEN:
1. RITESH R,
S/O RAMACHANDRAIAH,
AGED ABOUT 28 YEARS.
2. RAMACHANDRAIAH C,
S/O CHIKKAGANGAIAH,
AGED ABOUT 64 YEARS.
BOTH ARE R/AT NO 56,
6TH CROSS, BALAJINAGARA,
MALLATHAHALLI MAIN ROAD,
BENGALURU-560 056.
...PETITIONERS
(BY SRI KUMARA K G, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY EXCISE OF BANASAWADI,
RANGE P .S.,
BENGALURU-560 043.
(REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING-560 001)
2. HEMAVATHI C H,
AGED ABOUT 38 YEARS,
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WP No. 17937 of 2023
C/W CRL.P No. 4043 of 2024
CRL.P No. 4922 of 2024
CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
WORKING OF AT EXCISE OFFICER,
12TH ZONE, BANASAWADI,
BENGALURU-560 043.
...RESPONDENTS
(BY SMT. RASHMI PATEL, HCGP FOR R-1;
R-2 IS SERVED BUT UNREPRESENTED)
THIS CRL.P IS FILED U/S 482 CR.PC TO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.35189/2023 (IN
CR.NO.27/2022-23 OF EXCISE OF BANASAWADI RANGE P.S.)
FOR OFFENCE P/U/S 11, 12, 14(2), 15, 32, 38(A), 43 OF
KARNATAKA EXCISE ACT, 1965, PENDING ON THE FILE OF
HON'BLE METROPOLITAN MAGISTRATE TRAFFIC COURT-I,
MAYO HALL, BENGALURU AN ABUSE OF PROCESS OF LAW AND
GRANT SUCH OTHER RELIEF OR RELIEFS AS THIS HON'BLE
COURT DEEMS FIT TO GRANT IN THE FACTS AND
CIRCUMSTANCES OF THE CASE.
IN CRL.P NO. 4922/2024
BETWEEN:
M/S. SHAMANURU WINES,
REP. BY ITS PARTNERS,
ESHWAR SINGH KAVITHAL AND ROOPA E,
NO.1861/12, BINDAAS BEER LIQUORS,
S S LAYOUT, A BLOCK, OPP. BAPUJI GUEST HOUSE,
SHAMANUR ROAD, DAVANAGERE-577 001.
...PETITIONER
(BY SRI RAJU.H FOR SRI G.J.SUNKAPUR, ADVOCATE)
AND:
STATE BY P.S.I. OF EXCISE POLICE STATION,
DAVANAGERE,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENT
(BY SMT. RASHMI PATEL, HCGP)
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NC: 2025:KHC:13590
WP No. 17937 of 2023
C/W CRL.P No. 4043 of 2024
CRL.P No. 4922 of 2024
CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
THIS CRL.P IS FILED U/S. 482 CR.P.C TO 1.QUASH THE
ENTIRE CHARGE SHEET IN C.C.NO.5654/2023 (ARISING OUT
OF CR.NO.96/2022-23, EXICE P.S) DAVANAGERE OFFENCE
P/U/S 14,15(1),29,32(1),34,36, 43(A) OF KARNATAKA EXCISE
ACT PENDING ON THE FILE OF THE III ADDL.CIVIL JUDGE AND
J.M.F. COURT DAVANAGERE WHICH IS MARKED AS
ANNEXURE-D BY HOLDING THAT THE SAME AS ILLEGAL AND
UNSUSTAINABLE IN THE EYE OF LAW ETC.
IN CRL.P NO. 4983/2024
BETWEEN:
1. SUBRAMANI D.G,
S/O GNANAMURTHY,
AGED ABOUT 49 YEARS,
R/AT MUTHYALAMMA STREET,
3RD WARD, DOMMASANDRA, ANEKAL TALUK,
BENGALURU-562 125.
2. BHOJARAJ D.G,
S/O GNANAMURTHY,
AGED ABOUT 41 YEARS,
OWNER OF CAR NO KA-51-MN-2269,
R/AT NEAR RANGANATHA SWAMY TEMPLE,
3RD WARD, DOMMASANDRA, BENGALURU-562 125.
...PETITIONERS
(BY SRI RAVI M.M, ADVOCATE)
AND:
STATE BY EXCISE POLICE,
CHANNARAYAPATNA RANGE,
HASSAN SUB DIVISION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENT
(BY SMT. RASHMI PATEL, HCGP)
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WP No. 17937 of 2023
C/W CRL.P No. 4043 of 2024
CRL.P No. 4922 of 2024
CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
THIS CRL.P IS FILED U/S.482 CR.P.C TO QUASH THE FIR
IN CR.NO.55/2023-24/2007E/2007-07 FOR THE OFFENCE
P/US/ 11,14,32(1),38(A),43 OF KARANTAKA EXCISE ACT 1965
AGAINST THE PETITIONER OF THE RESPONDENT EXCISE
POLICE CHANNARAYAPATNA RANGE, HASSAN SUB DIVISION
PENDING ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND
JMFC CHANNARAYAPATNA (ANNEXURE A) THERE ON.
IN WP NO. 20898/2024
BETWEEN:
MR. PRADEEP THOMAS QUADRAS,
S/O. CYRIL QUADRAS,
AGED ABOUT 52 YEARS,
R/AT VIOLET VILLA, NO.2-31, B.C. ROAD,
BANTAKAL POST, UDUPI TALUK,
UDUPI DISTRICT-574 115.
...PETITIONER
(BY SRI RAJESHA SHETTIGARA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY BRAHMAVARA POLICE STATION,
BRAHMAVAR TALUK, UDUPI DISTRICT-576 101.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
2. THE POLICE SUB INSPECTOR-2
(INVESTIGATION),
BRAHMAVARA POLICE STATION,
UDUPI DISTRICT-576 101.
...RESPONDENTS
(BY SMT. RASHMI PATEL, HCGP)
THIS WP IS FILED UNDER ARTICLES 226 AND 27 OF
CONSTITUTION OF INDIA R/W SECTION 482 OF CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO-QUASH THE
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NC: 2025:KHC:13590
WP No. 17937 of 2023
C/W CRL.P No. 4043 of 2024
CRL.P No. 4922 of 2024
CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
ENTIRE PROCEEDINGS C.C NO. 1288/2023 AGAINST
PETITIONERS PENDING ON THE FILE OF I ADDL. CIVIL JUDGE
AND JMFC, UDUPI VIDE (ANNEXURE-D) FOR THE OFFENCES
PUNISHABLE UNDER SEC. 32 AND 34 OF KARNATAKA EXCISE
ACT, 1965 ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ
ORAL ORDER
In all these petitions, common contention raised by
the learned counsel appearing for petitioners is that there
is violation of Sections 53 and 54 of the Karnataka Excise
Act, 1965 and therefore, the proceedings are vitiated.
2. The orders passed by the Co-ordinate Benches
of this Court in Crl.P.No.5879/2024 disposed on
21.01.2025 and Crl.P.No.3132/2024 disposed on
15.01.2025 are relied in support of the above contention.
3. The seizure of liquor bottles and initiation of
criminal proceedings under the provisions of the Karnataka
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AND WP NO. 20898 OF 2024
Excise Act are challenged in these petitions. The
prosecution has alleged that the accused were
transporting/ in possession of liquor bottles without any
valid licence or permit in contravention of the provisions of
the Karnataka Excise Act. The liquor bottles were seized
under a mahazar in the presence of panch witnesses.
4. The issue raised being common in nature, the
facts of each case need not be adverted to, as it is
contended that the matter is already covered by the
decisions noted supra.
5. Section 53 of the Karnataka Excise Act, 1965
reads as under:
"53. Power of magistrate to issue a warrant. If a Magistrate,
upon information and after such enquiry (if any) as he
thinks necessary, 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,
he may issue a warrant,-
(a) for the search of any place in which he has reason
to believe that any intoxicant, still, utensil, implement,
apparatus or materials which are used for the
commission of such offence or in respect of which such
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AND WP NO. 20898 OF 2024
offence has been, is being, or is likely to be,
committed, are kept or concealed; and
(b) for the arrest of any person whom he has reason to
believe to have been, to be, or to be likely to be,
engaged in the commission of any such offence."
6. Section 54 of the Karnataka Excise Act, 1965
reads as under:
"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 he 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."
7. It is contended by the learned High Court
Government Pleader that the Magistrate has got power to
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AND WP NO. 20898 OF 2024
issue warrant when he is appraised of commission of
offence under the provisions of the Karnataka Excise Act,
such as Sections 32, 33, 34, 36 or 37 of the Act or if he is
satisfied that such an offence is likely to be committed and
the officials mentioned in Section 54 of the Act are of the
opinion that such search warrant cannot be obtained
without affording the offender an opportunity, they can
search any place and seize anything found therein, which
contravenes the provisions of the Act. It is the contention
of the learned High Court Government Pleader that in the
mahazar drawn, reasons are assigned for not obtaining the
search warrant from the Magistrate and therefore, there is
no violation of the above provisions, as contended by the
learned counsel for the petitioners.
8. It is relevant to extract certain paragraphs of
the above two decisions rendered by this Court. In
paragraph No.7 of Crl.P.No.5879/2024, this Court has
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referred to another order passed in Crl.P.No.10259/2021.
Paragraph Nos.7 to 9 reads as under:
"7. Under identical circumstances, the Co-ordinate Bench of
this Court held as under:
In Criminal Petition No.10259/2021.
"ORDER
This petition is filed by the petitioner-accused
under Section 482 of Cr.P.C. for quashing the criminal
proceedings in C.C. No.63/2021 pending on the file of
principal Civil Judge and JMFC, Hunsur, arising out of
Crime No.14/2019-20/2610SIE1/261010 registered by
Karnataka Excise Department, Hunsur Sub-Division,
Hunsur, Mysuru, for the offences punishable under
Sections 11, 14, 32, 34, 43(A) of Karnataka Excise Act,
1965 (for short 'K.E. Act').
2. Heard the learned counsel appearing for the
petitioner and learned High Court Government Pleader
for respondents.
3. The case of the complainant is that he received
information from one R. Somashekhar, Assistant
Horticulture Officer, HD Kote Taluk SST-2, who was
working in the temporary check post of Manuganahalli,
alleging that on 16.11.2019, the election code of conduct
was in force and during 2019 Karnataka Assembly
Elections, Hundai Crerta 4 wheel vehicle was carrying
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AND WP NO. 20898 OF 2024
liquor. When the vehicle was searched around 3.50 p.m.,
12 bottles of 750 ML Morpheus XO Blended Premium
Brandy were apprehended. After the receipt of
intimation, the excise inspector along with team went to
the spot, seized the liquor and the car, and thereafter,
went to the police station and registered FIR and in turn,
filed charge sheet which is under challenge.
4. Learned counsel for the petitioner has
contended that there is violation of Sections 53 and 54 of
the K.E. Act. Without recording reasons, the respondent
has arrested the petitioner and seized the liquor and
produced before the Court. There is no reference in the
FIR of recording reasons, but in the spot mahazar, the
respondent has subsequently added the record of
reasons, and the respondents have not obtained warrant
under Section 53 of the K.E. Act. Therefore, seizing the
articles, registering the FIR without recording reasons
and commencement of investigation, is violation of the
provisions of the K.E. Act. Therefore, the FIR is not
sustainable. Hence, prayed to allow the petition.
In support of his arguments, the learned counsel
has relied up on the following judgments of the Hon'ble
Supreme Court and this Court:
(i) K.L. Subbayya Vs. State of Karnataka - (1979)
2 SCC 115.
(ii) L Srinivas Vs. The Authorised Officer and
another - ILR 1999 KAR 2872.
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AND WP NO. 20898 OF 2024
(iii) Sri. Abhijeet Lalchand Landge And Others Vs.
State of Karnataka And Another in Criminal
Petition No.5855/2019 Dated on 26.11.2019.
(iv) Kumar vs. State of Karnataka And Another in
Criminal Petition No.8658/2019 Dated on
08.01.2020.
(v) Babu Naika And Others Vs. State of Karnataka
in Crl.R.P. No.52/2014 decided on 09.03.2020.
5. Per contra, learned High Court Government
Pleader has opposed the petition and contended that the
respondent, after following all the procedures, has
arrested the petitioner and therefore, prayed for
dismissing the petition.
6. Having heard the learned counsel appearing for
the parties, perused the records.
7. On perusal of the records, it is clear that one
Somashekhar, Assistant Horticulture Officer, gave an
intimation to the Excise Inspector that at 3.50 p.m., they
apprehended the person having liquor of 10 bottles of
brandy, without permit or licence, which is in violation of
the provisions of the K.E. Act. The Excise Inspector
seized the articles under Panchanama and thereafter,
came to the police station and registered FIR.
8. The contention of the petitioner is that though
in the panchanama, it is mentioned that FIR was
prepared after recording the reasons for not obtaining
the warrant under Section 53 of the K.E. Act, there is
possibility of the accused flee away from the case and
escape from the clutches of law. Record of reasons to be
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recorded before obtaining the warrant. In FIR, it is stated
that the Excise Inspector came to the spot, seized the
car and apprehended the accused and came to the office
and registered FIR. There is no mention about reducing
into writing of reasons or not recording reasons under
section 54 of the K.E. Act, which is mandatory.
9. As per Section 53 of the K.E. Act, in any case,
there is apprehension by the officer that there is chance
of accused fleeing away from the justice, the question of
coming to the Court for obtaining warrant, does not
arise. Here, in this case, there is an electron officer in
the check post and he has already caught the accused
red hand and kept in his custody. Therefore, Excise
Inspector is required to obtain the warrant under Section
53 of the K.E. Act as there is no chance of the petitioner
flee away from the spot.
10. That apart, either in the complaint or in the
FIR, which is registered by the respondent-complainant,
he has not whispered anything about the record of
reasons for visiting the spot or apprehending the
accused, whereas in the panchanama, the record of
reasons is mentioned and it was reduced into writing,
thereafter, went to the spot. The record of reasons has
not accompanied with the FIR in order to show that the
complainant has obtained warrant before registering the
FIR. He visited the spot and registered the FIR. There is
clear violation of the provisions of the K.E. Act. There is
no mention in the FIR for not obtaining warrant, but it is
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AND WP NO. 20898 OF 2024
mentioned in panchanama and it is only after thought. It
is not sent immediately after the seizure along with PF
and FIR. Such being the case, the panchanama appears
to be created by the investigation officer after filing of
the charge sheet or before filing of the charge sheet. The
entire bottles were not sent to the examination and only
four bottles were sent. Here also, the violation of the
provisions of the K.E. Act is found.
11. This Court, in the case of DAMERA UPENDRA
RAO AND ANOTHER VS. STATE BY EXCISE
DEPARTMENT POLICE in Criminal Petition
No.2121/2022 decided on 14.12.2022, has considered
the aforesaid aspect and quashed the proceedings.
Further, in the case of G. PUTTARAJU Vs. STATE OF
KARNATAKA AND ANOTHER in Writ Petition
No.20816/2023 decided on 31.01.2024, this Court has
already held that without registering FIR,
commencement of investigation, is in violation of the
provisions of the Cr.P.C. 12. That apart, sending the less
quantity of the bottles than the seized quantity of bottles
for examination, and without recording the reasons for
not obtaining warrant, seizing the articles and
commencing the investigation without registering FIR, is
violative of the provisions of the K.E. Act as well as
Cr.P.C. Therefore, the criminal proceedings is not
sustainable in law.
12. That apart, sending the less quantity of the
bottles than the seized quantity of bottles for
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AND WP NO. 20898 OF 2024
examination, and without recording the reasons for not
obtaining warrant, seizing the articles and commencing
the investigation without registering FIR, is violative of
the provisions of the K.E. Act as well as Cr.P.C.
Therefore, the criminal proceedings is not sustainable in
law.
13. Therefore, the criminal petition is allowed. The
criminal proceedings in C.C. No.63/2021 pending on the
file of principal Civil Judge and JMFC, Hunsur, arising out
of Crime No.14/2019-20/2610SIE1/261010 registered by
Karnataka Excise Department, Hunsur Sub-Division,
Hunsur, Mysuru, is hereby quashed."
In Criminal Petition No.278 of 2018
c/w
Criminal Petition No.279 of 2018
"ORDER
The petitioner-accused No.2 has filed these
criminal petitions under Section 482 of Cr.P.C. for
quashing the criminal proceedings in C.C. No.293/2017
and 277/2015 respectively, both on the file of the Civil
Judge and Judicial Magistrate First Class,
Narasimharajapura wherein the petitioner was charge
sheeted by the respondent for the offences punishable
under Sections 32 and 34 of the Karnataka Excise Act,
1965 (hereinafter referred to as 'Act' for short).
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2. Heard learned counsel for the petitioner in both
case and the learned High Court Government Pleader for
respondent State.
3. The case of the prosecution in criminal petition
No.278/2018 is that one K.R. Sunitha, Police Sub-
Inspector of N.R. Pura Police Station, filed a complaint
alleging that she received credible information that on
24.09.2016 at 6.30 a.m. when she was on patrolling
duty, accused No.1-Padmanabha was selling liquors in
front of provision store without any permit or licence.
Immediately, the complainant-officer along with panchas
went to the spot, seized liquor bottles under
panchanama and came back to police station, registered
a case in Crime No.111/2016 for the offences punishable
under Sections 32 and 34 of the Act. During
investigation, it was found that accused No.1 given
voluntary statement that the petitioner-accused No.2
supplied liquors to him. Therefore, the police filed charge
sheet against the petitioner-accused No.2, which is
under challenge.
Whereas in Criminal Petition No.279/2018, the
case of the prosecution is that, on 13.02.2015, one
Sadananda, who is a Police Circle Inspector, filed a
complaint alleging that he received credible information
that on 13.02.2015 at 7.30 a.m., Halesha-accused No.1
said to be selling liquors without permit or licence in
front of his shop. Immediately, he along with panchas
went to the spot and seized 13 pouches of Amrut's Silver
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Cup Brandy, 11 pouches of Haywards Cheers Whisky, 17
tetra packs of 3 Aces Whiskey and other brands of
whisky, totaling worth Rs.1,888/-, which is more than
the permissible quantity. After registering the case,
during investigation, it was revealed that the petitioner-
accused No.2 supplied liquor to the accused No.1 in the
present cases. Therefore, the police filed charge sheet
against the petitioner showing him as accused No.2,
which is under challenge.
4. In both cases, as the issue and point of law is
one and the same and as the petitioner-accused No.2 is
also one and the same, they are taken for common
disposal.
5. Learned counsel for the petitioner has mainly
argued that before going to search and seize the
property, the police officer or police department officials
shall request permission to issue search warrant form
the Magistrate to search or seize the liquors as required
under Section 53 of the Act and if the officials are unable
to get warrant and they want to proceed, immediately
they have to write reasons and record in a dairy
maintained by the officer and proceed as per Section 54
of the Act. The police officials have not followed the
mandatory provisions of Sections 53 and 54 of the Act.
Therefore, the criminal proceeding against the petitioner
is not sustainable.
In respect of his arguments, the learned counsel
for the petitioner has relied upon the judgment of
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AND WP NO. 20898 OF 2024
Hon'ble Supreme Court in case of K.L. Subbayya
Vs.State of Karnataka reported in (1979)2 SCC 115
and also the Coordinate Bench of this Court in
Crl.Appeal No.2619/2012 decided on 18.09.2020.
6. Per contra, learned High Court Government
Pleader for respondent State has contended that the
petitioner-accused No.2 has supplied liquor to accused
No.1 in both cases and the police seized the same under
panchanama. The petitioner-accused is a habitual
offender and therefore, prayed for dismissing the
petitions.
7. Having heard learned counsel for the parties
and on perusal of the records, it is not in dispute that the
police have seized in front of the shop of accused No.1
wherein he was found in possession of liquors weighing
more than the permissible quantity without any
permit/licence. However, In both cases, the police
officials have not at all stated anything about obtaining
warrant or not given requisition for obtaining warrant as
per sections 53 of the Act and also recorded any reason
for not obtaining warrant as per Section 54 of the Act.
They blindly seized the liquors from the custody of
accused No.1. Apart from that, there is no material
placed on record to show that the petitioner is a habitual
offender. Except voluntary statement of accused No.1
that petitioner-accused No.2 has supplied liquors to
accused No.1, no information is collected by the
investigation officer that the petitioner is running wine
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shop or the bar. Such being the case, conducting
criminal proceedings against the petitioner is abuse of
process of law.
8. The Hon'ble Supreme Court in the case of K.L.
Subbayya Vs. State of Karnataka reported in
(1979)2 SCC 115 and the Coordinate Bench of this
Court in Crl. Appeal No.2619/2012 decided on
18.09.2020 have quashed the proceedings against the
petitioner therein. Therefore, I am of the view that the
criminal proceedings against the petitioner are liable to
be quashed.
9. Accordingly, both the petitions are allowed. The
criminal proceedings in C.C. No.293/2017 and 277/2015,
both on the file of the Civil Judge and Judicial Magistrate
First Class, Narasimharajapura, are hereby quashed."
8. As is clear from the aforesaid judgments of this Court,
compliance of provisions contained under Section 54 of the
Karnataka Excise Act is mandatory and non-compliance thereof
and non-obtaining of a search warrant prior to the search and
seizure would vitiate the impugned F.I.R., charge sheet and all
further proceedings pursuant thereto, deserves to be quashed.
9. Insofar as the contention regarding registration of F.I.R.
without filing the report as required under Section 154 of the
Criminal Procedure Code is concerned, in the case of
DAYANANDA @ R. BABU (supra), under identical
circumstances, the Co-ordinate Bench of this Court held as
under:
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CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
"15. On perusal of the entire documents, Ex.P1 is
considered as seizure mahazar under which liquor bottles
have been seized by stating that the accused were
transporting it without having any valid license. It is the
submission of learned counsel for petitioner that the
search and seizure conducted without registration of FIR
in respect of cognizable offence is bad in law is
concerned, it is relevant to refer to the provision under
Sections 154 and 157 of Cr.P.C..
"154. Information in cognizable
cases.--(1) Every information relating to the
commission of a cognizable offence, if given
orally to an officer in charge of a police station,
shall be reduced to writing by him or under his
direction, and be read over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the
State Government may prescribe in this behalf:
[Provided that if the information is given by the
woman against whom an offence under section
326A, section 326B, section 354, section 354A,
section 354B, section 354C, section 354D,
section 376, [section 376A,section 376AB,
section 376B, section 376C, section 376D,
section 376DA, section 376DB], section 376E or
section 509 of the Indian Penal Code (45 of
1860) is alleged to have been committed or
attempted, then such information shall be
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CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
recorded, by a woman police officer or any
woman officer:
Provided further that--
(a) in the event that the person
against whom an offence under section
354, section 354A, section 354B,section
354C, section 354D, section 376, section
376A, section 376AB, section 376B,
section 376C, section 376D, section
376DA, section 376DB], section 376E or
section 509 of the Indian Penal Code (45
of 1860) is alleged to have been
committed or attempted, is temporarily
or permanently mentally or physically
disabled, then such information shall be
recorded by a police officer, at the
residence of the person seeking to report
such offence or at a convenient place of
such person's choice, in the presence of
an interpreter or a special educator, as
the case may be;
(b) the recording of such information
shall be video graphed;
(c) the police officer shall get the
statement of the person recorded by a
Judicial Magistrate under clause (a) of
sub-section (5A) of section 164 as soon
as possible.]
(2) A copy of the information as recorded
under sub-section (1) shall be given forthwith,
free of cost, to the informant.
(3) Any person aggrieved by a refusal on the
part of an officer in charge of a police station
to record the information referred to in sub-
section (1) may send the substance of such
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AND WP NO. 20898 OF 2024
information, in writing and by post, to the
Superintendent of Police concerned who, if
satisfied that such information discloses the
commission of a cognizable offence, shall
either investigate the case himself or direct an
investigation to be made by any police officer
subordinate to him, in the manner provided
by this Code, and such officer shall have all
the powers of an officer in charge of the police
station in relation to that offence.
157. Procedure for investigation.--(1) If,
from information received or otherwise, an
officer in charge of a 80 police station has
reason to suspect the commission of an
offence which he is empowered under section
156 to investigate, he shall forthwith send a
report of the same to a Magistrate empowered
to take cognizance of such offence upon a
police report and shall proceed in person, or
shall depute one of his subordinate officers
not being below such rank as the State
Government may, by general or special order,
prescribe in this behalf, to proceed, to the
spot, to investigate the facts and
circumstances of the case, and, if necessary,
to take measures for the discovery and arrest
of the offender:
Provided that--
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CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
(a) when information as to the
commission of any such offence is given
against any person by name and the
case is not of a serious nature, the
officer in charge of a police station need
not proceed in person or depute a
subordinate officer to make an
investigation on the spot;
(b) if it appears to the officer in
charge of a police station that there is
no sufficient ground for entering on an
investigation, he shall not investigate
the case.
[Provided further that in relation to an
offence of rape, the recording of
statement of the victim shall be
conducted at the residence of the victim
or in the place of her choice and as far
as practicable by a woman police officer
in the presence of her parents or
guardian or near relatives or social
worker of the locality.]
(2) In each of the cases mentioned in clauses
(a) and (b) of the proviso to sub-section (1),
the officer in charge of the police station shall
state in his report his reasons for not fully
complying with the requirements of that sub-
section, and, in the case mentioned in clause
(b) of the said proviso, the officer shall also
forthwith notify to the informant, if any, in
such manner as may be prescribed by the
State Government, the fact that he will not
investigate the case or cause it to be
investigated."
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CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
On careful perusal of the above said provisions, it
appears that there are two kinds of FIRs namely, the FIR
can be registered by the informant which was duly signed
by him. Secondly, the FIR can be registered by the police
officer himself on any information received by him. In
both the cases, the information should be reduced into
writing and thereafter, the investigation must be carried
out.
16. Ex.P1 being a panchanama, it cannot be
termed as a complaint. FIR cannot be registered on the
basis of panchanama, however, in the present case, the
respondent has registered he FIR on the basis of
panchanama which is erroneous and not proper. The Trial
Court ought not to have acted upon such FIR and
cognizance should not have been taken on the strength of
the said FIR. However, the Trial Court and the Appellate
Court have committed error by considering the said FIR
as appropriate and proper and recorded the conviction.
Such conviction would be rendered as ineffective and the
same can be termed as non est in law.
17. When the registration of FIR itself is void
abinitio, the subsequent proceedings including the
judgments are liable to be set aside. Therefore, the
interference by the Revisional Court in setting aside the
concurrent findings is justified.
18. In the light of the observations made above, I
proceed to pass the following:-
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CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction dated
26.12.2015 and order of sentence
dated 29.12.2015 in
C.C.No.332/2009 on the file of Civil
Judge and JMFC., Hunsur and its
confirmation judgment and order
dated 12.01.2021 in
Crl.A.No.12/2016 on the file of VIII
Additional District and Sessions
Judge, Mysuru, Sitting at Hunsur
are set aside.
(iii) The petitioners are acquitted for the
offences punishable under Sections
32, 34 and 38-A of Karnataka Excise
Act.
(iv) Bail bonds executed, if any, stand
cancelled."
9. Similarly, the said judgment in
Crl.P.No.10259/2021 is also relied in Crl.P.No.3132/2024.
10. It is relevant to mention that the petitioner in
Crl.P.No.4922/2024 in this batch of petitions is accused
No.3. The said case pertains to seizure of liquor bottles
from a wine shop, wherein registration of the FIR was
challenged by accused No.2 in Crl.P.No.3132/2024
(Supra). This Court has quashed the proceedings against
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CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
him on the ground that there is violation of Sections 53
and 54 of the Excise Act.
11. As observed in the above two petitions, even in
the present batch of petitions, except the mahazar,
separate/independent report prior to registration of FIR
was not filed by the respondents. In view of the orders
passed in similar cases on similar grounds of violation of
Sections 53 and 54 of Karnataka Excise Act, 1965, the
present petitions deserve to be allowed. Accordingly, the
following:
ORDER
i. Petitions are allowed.
ii. In WP.No.17937/2023, entire proceedings in
CC.No.355/2018 pending on the file of III
Additional Civil Judge & JMFC, Udupi is quashed.
iii. In Crl.P.No.4043/2024, entire proceedings in
CC.No.35189/2023 pending on the file of
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CRL.P NO. 4983 OF 2024
AND WP NO. 20898 OF 2024
Metropolitan Magistrate Traffic Court - I, Mayo
Hall, Bengaluru is quashed.
iv. In Crl.P.No.4922/2024, entire proceedings in
CC.No.5654/2023 pending on the file of III
Additional Civil Judge and JMFC Court,
Davanagere is quashed.
v. In Crl.P.No.4983/2024, FIR in Cr.No.55/2023-24
registered by Excise Police, Channarayapatna
Range, Hassan Sub-Division, pending on the file
of Additional Civil Judge and JMFC,
Channarayapatna is quashed.
vi. In W.P.No.20898/2024, entire proceedings in
C.C.No.1288/2023 pending on the file of I
Additional Civil Judge and JMFC, Udupi is
quashed.
Pending IAs. if any stand disposed of.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
