K.S. Ganesh Bhat vs Authorised Officer and Others

G. Narendra, J.—This Criminal Revision Petition is filed under Sections 397 and 401 Cr.P.C., praying to set aside the order of confiscation dated 29.12.2011 passed by the Authorised Officer and Deputy Commissioner of Excise, D.K., Mangalore in No. SDK/361/DTCR/2007-08, confiscating the jeep bearing Registration No. KA-21-3435 to State Government and the judgment and order dated 19.03.2014 passed by the I Additional District and S.J., D.K., Mangalore in Crl. A. No. 22/2012 confirming the said order.

Heard the learned counsel for the petitioner and the learned SPP for the respondents.

The facts in brief are as follows:--

"It is the case of the petitioner that the Authorised Officer and Deputy Conservator of Excise, D.K., Mangalore by his order Dt. 29.12.2011 passed in the proceeding bearing No. SDK/361/DTCR/2007-08 has been pleased to order confiscation of jeep bearing KA 21 3435 for offence u/s. 43-A (2) of the Karnataka Excise Act and further directed the petitioner to produce and hand over the vehicle and entrust it to the Inspector of Excise, Sullia Range within 30 days of the order and in failure of the same had directed invocation of bank guarantee furnished by the petitioner for a sum of Rs. 55,000/-. The same was furnished and interim custody of the jeep was obtained.

The said jeep was detained on 3.3.2008 by the Excise Sub Inspector, Sullia Range for illegally transporting liquour. The liquor was seized pursuant to prior information and the consequent search carried out under Section 54 of the Karnataka Excise Act and that the search resulted in the seizure of carton boxes containing 6.120 ltrs. of liquor and the accused was not holding any permit. In the light of the above facts, it was concluded that the accused was guilty of the offences under Sections 14, 15 and 32, 34 and 38-A of the Karnataka Excise Act. Upon seizure, a mahazar was drawn up and two sample bottles from each carton was taken out for the purpose of forwarding the same to the FSL laboratory for testing. Thereafter show cause notice came to be issued under Section Section 43B of the Act calling upon the petitioner to show cause as to why the vehicle in which liquor was being transported ought not to be confiscated in favour of the State. The show cause notice drew a unique response from the petitioner wherein he has stated that the said offending vehicle was used only for agricultural purposes. During the pendency of the proceedings, an interim application was moved for custody of the vehicle, which has been considered and the vehicle was ordered to be released subject to the petitioner depositing a sum of Rs. 55,000/- by way of bank guarantee and as a security measure."

The petitioner''s counsel would assail the impugned orders primarily on two grounds and this court is of the opinion that a positive finding on these grounds would be suffice for the disposal of the petition.

One of the grounds the petitioner''s counsel would argue is that unless and until the entire quantity seized is tested and certified, any conviction based on partial testing of the contents is unsustainable. In support of this contention the petitioner''s counsel would rely on the reported judgment of this Hon''ble Court rendered by a Division Bench of this Court and reported in 1966 (2) Mysore Law Journal 91 (State of Mysore v. Mohamed Jaffar and Others) wherein this Court found fault with the Investigating Authority for having chosen to analyse the contents of only one bottle and in the circumstances was pleased to quash the seizure and allow the petition.

However subsequent to this order, the Karnataka Excise Act came to be amended and Section 59-A came to be introduced in the year 1971 whereby the provision stipulates that, a mere certificate by the Competent Officer, specially empowered by the State Govt. certifying the contents as goods as described in Rule 21 of the Excise Act and Rules 1967, is sufficient evidence of the contents. In the light of the subsequent amendment to the Excise Act, the judgment referred supra may not be a good defence any longer for the accused and is in-applicable to the case on hand.

It is nextly contended by the petitioner''s counsel that in the alternative the respondents should have at least tested the contents for the purpose of demonstrating that the petitioner was holding the products over and above the limits as permitted under Rule 21 of The Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules 1967 (for short hereinafter referred to as ''the Rules'' for the sake of brevity) i.e. for example, if the seized quantity is about 10 litres then it is incumbent upon and a duty is cast upon the respondents to test any quantity in excess of 4.6 litres so as to demonstrate to the court that the contents in possession or under transportation by the accused are held in violation of Rule 21 of the above said Rules.

This contention merits consideration.

It is further contended by the petitioner''s counsel that both the courts below have misdirected themselves and have lost sight of the fact that it has not at all been demonstrated before them that the accused was in possession or transporting quantities in excess of the permissible limits under Rule 21 of the Rules.

Admittedly, in the present case what was seized is 6.120 litres of whisky. As per the provisions of Rule 21(5) of the Rules, Vhisky'' is one of the items listed at Sl. No. 5 and Rule 21 of the Rules permits a person to possess or transport 4.6 litres of the same without permit or licence. This being the position in law, a duty was cast upon the Investigating Authority to get at least 4.61 litres or any quantity over and above 4.61 of the seized goods to be tested and ascertained that the same is one of the products described in Sl. No. 5 of Rule 21 of the Rules and that the accused is possessing or transporting quantities in excess of the permissible limit. But that is not so in the instant case. The respondents have chosen to get tested the contents of only two bottles each from the carton containing 180 ml. Thus in all the quantity tested is about 720 ml. In the instant case it is not the case of the prosecution that the certificate has been issued u/s. 59A of the Act by the Competent Officer certifying the contents as being products which are described in Sl. No. 5 of Rule 21 of the Rules. In the absence of a certificate u/s. 59A of the Act, it falls upon the court to decide as to:

"Whether the tested quantity of 720 milliliters is proof enough to presume that the remaining quantity measuring about 5400 milliliters is the product similar to the one that has been tested and is one such product described in Sl. No. 5 of Rule 21 of the above said Rules?" 11. The petitioner''s counsel would also state that in the light of decision rendered by the Division Bench, the entire material seized has to be tested. Such an interpretation would render all proceedings infructuous even before they are commenced. For Eg. A wagon load of liquor is seized and if it is accepted that the entire contents have to be examined, the prosecution would become a non-starter in view of the fact that it is virtually impossible to examine the entire quantity and complete the investigation within a meaningful period. Hence the said contention is rejected. The said contention must also fail in the light of the provisions of S. 59A of the Karnataka Excise Act. But, as canvassed by the counsel for the petitioner, it is mandatory on the Seizing Authority/Prosecution to take out quantities from out of the seized goods in excess of the quantities permitted under Rule 21 of the Rules and have them tested. Such a procedure would in all fairness ensure an impartial investigation in respect of the seized contents and give no room for any suspicion that the other quantities which had not been tested are not the ''goods'' as described under Rule 21 of the Rules.

In view of the above findings, the petition is allowed. The impugned order dated 29.12.2011 passed by the Authorised Officer and Deputy Commissioner of Excise, D.K., Mangalore in No. SDK/361/DTCR/2007-08, confiscating the jeep bearing Registration No. KA-21-3435 to the State Government and the judgment and order dated 19.03.2014 passed by the I Additional District and S.J., D.K., Mangalore in Criminal Appeal No. 22/2012 confirming the order passed by the Authorised Officer and Deputy Commissioner of Excise, D.K., Mangalore, are hereby set aside.

In the above facts and circumstances there shall be no order as to costs.