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They do not know exactly how much quantity of liquors
sachets were found in each bag. But PW.1 deposed to
boundaries of the spot that accused persons were
apprehended. Therefore, evidence of PW.1 and 2 coupled
with evidence of PW.4 coupled with evidence of PW.3 one
of the police constable accompanied the PW.4 supported
the case of prosecution. In the cross-examination,
except denial suggestions nothing worth is elicited. The
above said material further corroborated by PW.5
Investigating Officer who registered the FIR. Sent the FIR
before concerned judicial Magistrate and remanded the
accused to judicial custody. Recorded the statement of
witnesses Cw.2 to 6 and filed the charge sheet against
accused persons. In the cross-examination, except denial
suggestions nothing worth is elicited. Therefore, trial
court after appreciating the oral as well as documentary
evidence placed on record properly come to the conclusion
and recorded findings that accused no.1 and 2 are found
guilty of offence under Section. 32 and 34 of Karnataka
Excise Act and sentenced them to undergo simple
imprisonment of one year and also pay a fine of
Rs.10,000/- which is perfectly based on material evidence
available on record and do not call for any interference by
this court and accordingly point no.1 and 2 are answered
in the negative."
15. Being further aggrieved by the same, accused is before
the Court in this revision petition.
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16. Sri P.B.Umesh, learned counsel for the revision
petitioners/accused, contented that in the case on hand, there
is no compliance to Sections 53 and 54 of the Karnataka Excise
Act. Therefore, the very order of the Trial Magistrate confirmed
by the First Appellate Court needs interference, in view of the
authoritative principles of law enunciated by the Hon'ble Apex
Court in the case of K.L.Subhayya vs. State of Karnataka
reported in AIR 1979 SC 711 which was followed by the co-
ordinate Bench of this Court in the case of Umakant @
Ramakant Nagesh Gouda and others vs. State by Special
Police, Karwar, in Criminal Appeal No.2619/2012 dated
18.09.2020.
17. Per contra, Smt.Waheeda M.M, learned High Court
Government Pleader opposes the revision grounds and submits
that the contentions urged on behalf of the petitioners cannot
be countenanced in law inasmuch as, the liquor sachets were in
the possession of the accused persons who were travelling on a
motorcycle.
18. Therefore, there was no necessity to comply Sections 53
and 54 of the Karnataka Excise Act. Hence, the revision is to
be dismissed.
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19. She would also submit that there cannot be any dispute
as to the principles of law enunciated in the case of
K.L.Subhayya supra and Umakant supra.
20. But facts of those cases would differ from the facts that is
available on record and thus sought for dismissal of the revision
petition.
21. Having heard the arguments of both sides, this Court
perused the material on record meticulously.
22. On such perusal of the material on record, in the case on
hand, seizure of illicit liquor stands established by placing
cogent and convincing evidence on record.
23. Pertinently, neither the head of the raid party nor
remaining members of the raid party including the sub-staff did
not nurture any previous enmity or animosity against the
petitioners to falsely implicate them in the case.
24. One of the witness to Exhibit P-1 mahazar has supported
the case of the prosecution in toto. When head of the raid
party and one of the panch witnesses who did not nurture any
previous enmity and animosity against the accused, why would
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they depose falsely against the accused persons is a question
that remains unanswered on behalf of the revision petitioner.
25. Further, no explanation whatsoever is forthcoming from
the accused at the time of recording the accused's statement
for the seizure of huge quantity of the liquor packets amounting
to 550 sachets of 90 ml of Raja Whiskey for which the accused
persons did not possess any licence/pass or permit.
26. Further, if the head of the raid party wanted to falsely
implicate the accused persons why would he implant such huge
number of Raja Whiskey packets is a question again which
remains unanswered on behalf of the accused.
27. Taking note of these aspects of the matter, the seizure of
illicit liquor stands established by the prosecution by placing
overwhelming material evidence on record.
28. Insofar as the technical defence that there is no
compliance to Sections 53 and 54 of the Karnataka Excise Act
is concerned, it is just and necessary for this Court to cull out
those sections for ready reference.
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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,
section34, 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
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.
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
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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.
29. On careful reading of the above provisions, it is crystal
clear that a moving vehicle cannot be equated either to the
house or the vessel.
30. In the case on hand, it is the motorcycle on which the
accused persons were possessing the illicit liquor and were
transporting. Therefore, non-compliance of Sections 53 and 54
of the Karnataka Excise Act is not fatal to the case of the
prosecution. As such, the principles of law enunciated in the
decision relied on by learned counsel for the revision petitioner
is not applicable to case on hand on account of difference in
factual matrix.
31. Further in the cross-examination, no such questions are
put to the prosecution witnesses and for the first time before
this Court, that too in revision, this aspect is pressed into
service. Therefore, same cannot be countenanced in law.
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32. View of this Court in this regard is fortified by the co-
ordinate Bench decision of this Court in the case of Anasuya
and others vs. The State of Karnataka reported in
MANU/KA/3176/2018.
33. Now coming to the question of appropriate sentence, the
learned Trial Magistrate has imposed minimum sentence which
has been upheld by the learned Judge in the First Appellate
Court.
34. Thus, this Court does not find any infirmity whatsoever in
the impugned orders.
35. Accordingly, the following:
ORDER
i. Revision petition is meritless and is hereby
dismissed.
ii. Petitioners are directed to surrender before the
Trial Court for serving the sentence on or before
05th June 2026.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
