The Authorised Officer & Deputy Commissioner of Excise

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20 TH DAY OF FEBRUARY 2013 BEFORE THE HON’BLE MR JUSTICE K. N. KESHAVANARAYANA CRIMINAL PETITION No.2957/2012 BETWEEN: The Authorised Officer & Deputy Commissioner of Excise, Mangalore, Dakshina Kannada-575 001. ... Petitioner (By Sri.Satish.R.Girji, HCGP) AND: Mr. Chandra Moily, Aged about 44 years, S/o. Kumar Moily, Residing at No.23, Moodu House, Kudumboor Colony, Baikampady, Mangalore, Dakshina Kannada-575 011. ... Respondent This Criminal Petition is filed under Section 482 of the Cr.P.C., praying to set aside the Judgment and Order dated 13.01.2012 passed by the I Additional District and Sessions Judge, Dakshina Kannada, Mangalore in Criminal Appeal No.10/2011 allowing the same and setting aside the order dated 17.08.2010 passed by the Authorised Officer and Deputy Commissioner of Excise, Dakshina Kannada, Mangalore in proceedings No.SDK/159/DTCR/2008-09 and restore the order in 2 proceedings No.SDK/159/DTCR/2008-09, dated 17.08.2010 passed by the Authorised Officer and Deputy Commissioner of Excise, Dakshina Kannada, Mangalore. This Petition coming for admission on this day, the Court made the following: O R D E R The State has questioned the legality and correctness of the order dated 13.01.2012 passed by the I – Additional Sessions Judge, D.K., Mangalore, in criminal Appeal No.10/2011 allowing the said appeal filed by the 1st respondent herein under Section 43(E) of the Karnataka Excise Act, 1965 and setting aside the order dated 17.08.2010 passed by the authorized officer and Deputy Commissioner of Excise, D.K. directing confiscation of Honda Activa Scooter bearing registration No .KA-19.S.5780 belonging to the respondent. According to the State, the aforesaid vehicle was seized on the allegation that this petitioner while proceeding on the said scooter was found transporting Highway Whisky to the extent of 5.400 Lts. Contained in 30 bottles each measuring 180 ml. and at that time he was not possessing 3 any permit or licence as required by law. Therefore, the vehicle was seized and a criminal case was registered against the respondent. 2) Confiscation proceedings were initiated before the authorized officer and Deputy Commissioner, D.K., Mangalore. After enquiry, the authorized officer by recording findings that there are sufficient evidence to indicate that the vehicle was used for transporting the liquor without permit or licence, directed its confiscation to the State. 3) In appeal, the learned Sessions Judge set aside the said order on the ground that, though according to the prosecution, 30 bottles found transporting in the scooter were seized, only two bottles were subjected to chemical examination, which revealed that the bottle contains whisky. However, no evidence is produced to show that the remaining 28 bottles also contained whisky or any other liquor. In that view of the matter, the learned Sessions Judge held that the prosecution has failed to 4 establish that the respondent was transporting whisky to an extent of 5.400 lts. in the scooter and in the light of the provisions of Rule 21 of the Karnataka Excise (Possession, Transport, Import and export of Intoxicants) Rules 1967 (for short, ‘Rules’), no permit or licence was required to possess or transport liquor upto 4.6 Lts. Therefore, the learned Sessions Judge held that there is no evidence to indicate that scooter in question was found transporting the liquor in excess of permitted quantity. Aggrieved by the said order of the learned Sessions Judge, the State has presented this petition. 4) Having heard the learned Government Pleader and on perusal of the orders passed by the appellate court as well as by the authorized officer, I am of the considered opinion that there are no merits in this petition. As rightly pointed-out by the learned Sessions Judge, only two bottles out of 30 said to have been seized were subjected to chemical examination and other 28 bottles were not subjected to chemical examination. Therefore, it was not established that those 28 bottles also contained whisky or 5 any other liquor, so as to indicate that the scooter-in- question was found transporting liquor in excess of the permitted quantity under Rule 21 of the Rules. Therefore, the learned Sessions Judge is justified in setting aside the order passed by the authorized officer. No error of law or procedure is committed by the learned Sessions Judge in allowing the said appeal and setting aside the order of the authorized officer. The authorized officer has not considered this aspect of the matter, therefore, the learned Sessions Judge has rightly interfered with the said order. The order passed by the learned Sessions Judge does not suffer from any irregularity or illegality warranting interference by this Court. Hence, the petition is rejected. Sd/- JUDGE KGR* .

Load more