The State is in Revision challenging the judgment and order dated 08.04.2011 passed by the Fast Track Court – II at Koppal, in Crl. A. No.31/2010 wherein the learned Judge allowed the appeal filed by the respondent herein and set aside the order dated 27.05.2010 passed by the Authorised Officer i.e., Excise Superintendent, Koppal, in file No.EX/DTCR/33/2007-08 confiscating the seized Bolero vehicle bearing No.KA-29/P-0969.

2. I have heard the learned H.C.G.P. appearing for the petitioner – State.

3. It is the case of the prosecution that on 25.09.2007 at about 7.30 p.m. on a credible information, the police attached to Town Police Station Gangavathi intercepted a Bolero vehicle bearing Reg. No.KA-29/P-0969 near Kanakagiri road and found that the inmates of the said vehicle were in illegal possession of 240 Raja Whisky bottles of 180ml each and 288 bottles of United Fine Whisky bottles of 180ml each. Since the said liquor bottles were being carried in the said vehicle without any valid license or permit, the inmates of the vehicle were arrested and the vehicle along with the contraband articles were seized under a panchanama in the presence of the panch witnesses. The seized vehicle was released to the interim custody of the respondent/RC owner of the vehicle.

4. Before the Authorised Officer the confiscation proceedings were initiated. Four witnesses were examined by the prosecution to prove the case and two documents were marked. The vehicle in question came to be confiscated by the Authorised Officer i.e., the Excise Superintendent, Koppal by an order dated 27.05.2010 in File No.EX/DTCR/33/2007-08.

5. The respondent filed an appeal before the Sessions Court under Section 43-E of the Karnataka Excise Act, 1965 (for short, ‘the Act’). The learned Sessions Judge by judgment and order dated 08.04.2011 set aside the order passed by the Authorised Officer and the interim custody of the vehicle which was given to the respondent was made absolute.

6. The learned H.C.G.P. vehemently contended that the learned Sessions Judge has mis-directed himself in observing that the provisions of search contemplated under Sections 53 and 54 of the Act is not complied and further submitted that the learned Sessions Judge was not justified in setting aside the order of confiscation of the vehicle on the ground that the contravention of provision of Sections 53 and 54 of the Act would result in invalidating the seizure proceedings.

7. In support of his contention he placed reliance on the decision reported in 2004 (2) KCCR SN 163 (DB) in the case of Sri Somanath Kerebail v. The State of Karnataka and a decision reported in 2004 Cri.L.J. 1147 in the case of State of Karnataka and Another v. M. Haneef and Another.

8. Though the respondent was served, however, he has remained absent.

9. It is the case of the prosecution that the vehicle in question i.e., Bolero bearing Reg. No.KA-29/P-0969 was found carrying liquor bottles and the inmates of the said vehicle were not possessing any valid licence or permit to carry the said liquor. To prove the seizure of contraband articles and the vehicle in question, the prosecution got examined four witnesses and got marked two documents. It is relevant to see that both PWs.1 and 2, who are the material witnesses, namely, the panch witnesses, have turned hostile to the prosecution case. PW-3 is the CPI and PW-4 is one Head Constable who are part of the raiding party. Though it is stated by them that some persons were transporting the liquor bottles in the vehicles and stated that the accused persons were arrested and articles were seized and mahazar was drawn, however, seizure of the vehicle and carrying the liquor bottles is not fully established. The learned Sessions Judge has observed that the procedure in obtaining the search warrant or preparing the search memo was not followed and thereby held that the seizure was without jurisdiction. It was observed after relying on a decision of this Court in the case of L.