Judgement Key Points

( 1 ) ON 1-12-1994 the SI of Police, thyamagondlu P. S. registered a case in FIR no. 61/94 under Sections 32 and 34 of karnataka Excise Act read with R. 171-B of the IPC on the complaint of over Venkatappa alleging that on 1-12-1994 at about 2. 30 a. m. one matador van bearing registration No. KA-20/180 was found transporting liquor bottles without any licence, thereby committing the said offence. Therefore, the police seized the van and produced it before the authorised officer and also registered a case against the driver and owner of the vehicle. The driver being the power of attorney holder of the owner of the van filed an application to release the van in his favour before the respondent. The respondent after examining 5 witnesses has come to the conclusion that the van was found in possession of 3 boxes of liquor without licence. Therefore, he ordered the confiscation of the van. That order was questioned in Crl. Misc. A. 7/96 on the file of the II Addl. D and SJ, Bangalore rural District. The learned District Judge by his order dated 24-6-1997 dismissed the appeal confirming the order passed by the respondent. Hence, the petitioner has filed this application.

( 2 ) HEARD the learned Counsel for the petitioner and the learned Addl. SPP.

( 3 ) THE learned Counsel for the petitioner at the very outset submitted that the prosecution has not taken prior permission from the Magistrate to search and seize the vehicle. There is no reason mentioned by the prosecution to seize the vehicle without the prior permission of the Magistrate. Therefore, he submitted on that ground itself, the seizure of the vehicle is invalid. To substantiate his argument, he has drawn my attention to the decision rendered by Their lordships of the Supreme Court reported in k. L. Subbayya v. State of Karnataka, 1979 (1) Kar. LJ 410, wherein Their Lordships have held:"the Inspector of Excise who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act was being committed, before proceeding to search the car and thus the provisions of Section 54 were not complied with. "held, this rendered the entire search without jurisdiction and vitiated the conviction. Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecutions or harassment. The definition of the word 'place' under the Act included vehicles which could include a car. In this case, from the perusal of the seizure mahazar or other records, there is nothing to indicate that the Investigating officer has mentioned any reasons to search and seize the vehicle without prior permission of the Magistrate. Admittedly, there is no prior permission of the Magistrate to search and seize the vehicle. Under the circumstances of the case, the decision rendered by Their Lordships referred to above is squarely applicable to the facts of this case.

( 4 ) THE learned Counsel for the petitioner has also drawn my attention to section 43-A of the K. E. Act wherein it is stated as soon as the vehicle is seized, it shall be produced before the authorised officer but in this case, though the vehicle was seized on 1-3-1994 the same was kept with him till 6-3-1994. On 3-3-1994 a request was made to the authorised officer seeking permission to produce the vehicle. Though that permission was given on 3-3-1994, the same was produced before him on 6-3-1994. Thus there is a delay which has not been explained and it is also not in consonance with the requirement of Section 43-A of the act.

( 5 ) BESIDES that from the perusal of the evidence, it is clear that the complaint was lodged by a person who was inimical towards the petitioner herein. This incident occurred during the general elections and it is also alleged that the liquor was being transported for the purpose of giving it to the voters, etc. Under those circumstances, it required cogent and convinc

Click Here to Read the rest of this document