Nagesh Naika vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned State Public Prosecutor.

The records are before the court. The matter coming on for admission, is heard for final disposal on a short point. The petitioner herein was the accused before the Trial Court for an offence punishable under Section 34 of the Karnataka Excise Act, 1965 (hereinafter referred to as ''the Excise Act'', for brevity). The petitioner was alleged to have been transporting whisky bottles of 180 ml. each, numbering in all 30 and therefore, it was alleged that he had violated Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967, in carrying liquor beyond the permissible limit.

Insofar as whisky is concerned, the permissible limit is 4.6 litres and since it was alleged that he was carrying more than 4.6 litres, a case was registered and the petitioner went to trial. The Trial Court had convicted him and sentenced him to imprisonment for one year and imposed a fine of Rs. 10,000/-. The same having been affirmed in appeal, the present petition is filed.

Among the several grounds urged, the learned counsel for the petitioner would point out a serious lacuna in the entire proceedings which would vitiate the same. In that, in order to establish that there was a violation of the rule which prohibits the transportation of liquor beyond the permissible limit, it was necessary for the prosecution to have established that the petitioner was indeed carrying liquor in all the thirty bottles which were seized and were alleged to be whisky bottles. However, the manner in which the prosecution has embarked the exercise of proving the same is by subjecting one of the bottles to a chemical analysis and proceeding on the basis that the entire quantity of 30 bottles contained whisky and the trial was also conducted. One of the whisky bottles so subjected to chemical analysis was marked as a material object and a certificate evidencing the same as an exhibit. The entire quantity was not certified as containing liquor.

The learned counsel would also point out that Section 59A of the Karnataka Excise Act, 1965 (hereinafter referred to as ''the Excise Act'', for brevity) provides that a certificate of Inspectors of Excise would be evidence and it lays down that, any document purporting to be a certificate under the hand of an Inspector of Excise who has undergone the prescribed training in the examination and analysis of intoxicants and materials and who is authorised by the State Government in this behalf, in respect of any matter or thing submitted to him for examination or analysis and report may be used as evidence of the facts stated in such certificate, in any proceedings under this Act. But the court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Inspector of Excise as to the subject matter of his certificate.

Therefore, it was incumbent on the prosecution to have produced the entire quantity of liquor so seized for chemical examination and certification of the quantity and to have obtained a certificate in accordance with the above section, for the bottles could have even contained plain water. This not having been established, the question of the offence having been committed being brought home is not apparent and both the courts have overlooked this primary circumstance and would therefore submit that the petition be allowed on that ground alone, without addressing any other grounds which have also been raised insofar as the findings of the Trial Court and the Appellate Court on other aspects.

The learned State Public Prosecutor would make a weak effort to resist the petition.

As rightly contended by the learned counsel for the petitioner, it would have been prudent for the prosecution to have obtained a certificate in the first instance of the entire quantity of liquor that was seized and it would then not have been necessary for the prosecution to have produced the entire quantity in order to establish that there was indeed a breach of the law. It is also curious that in all these cases, though large quantity of liquor is seized, only a minuscule quantity is subjected to chemical analysis and produced before the Court and it is unknown as to the fate of the rest of the liquor that was seized and this is a curiosity that arises time and again.

It is also to be noticed that the lapse of the prosecution on similar grounds is repeatedly committed and it is therefore perplexing as to why there is no proper supervision of the manner in which the prosecution in these cases is conducted.

Accordingly, the petition is summarily allowed. The judgments of the Trial court as well as the Appellate Court are set aside and quashed. The petitioner is acquitted. The bail bond stands cancelled. The fine amount if any paid shall be refunded.