- 1 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 3132 OF 2024 (482(Cr.PC) / 528(BNSS) BETWEEN: VINAY KUMAR D.H. AGED 45 YEARS S/O H T DODDAMANI, PRAMOD BAR AND RESTAURANT, NO.1776/57-A S.S.LAYOUT, SHAMNUR ROAD, DAVANAGERE - 577 001. …PETITIONER (BY SRI. ARCHANA MURTHY.,ADVOCATE) AND: STATE OF KARNATAKA THROUGH DAVANGERE SUB DIVISION, DAVANGERE REPRESENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU - 09 …RESPONDENT (BY SMT. RASHMI JADHA, ADDL.SPP) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET DATED 03.10.2023 FILED BY THE DAVANAGERE SUB DIVISION DAVANAGERE IN C.C.NO.5654/2023 FOR AN OFFENCE P/U/S 14.15(1),29,32(1),34.36, AND 43(A) OF THE EXERCISE ACT PENDING ON THE FILE OF THE III ADDL.CIVIL JUDGE AND J.M.F.C DAVANAGERE. THIS PETITION, COMING ON FOR ADMISION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR Digitally signed by LEELAVATHI S R Location: High Court of Karnataka - 2 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 ORAL ORDER In this petition, petitioner seeks the following reliefs: “Wherefore, it is prayed that this Hon’ble Court may kindly be pleased to quash the charge sheet dated 03.10.2023 filed by the Davangere Sub Division, Davangere in C.C.No.5654/2023 for the offences punishable under Sections 14, 15(1), 29, 32(1) 34, 36 and 43(A) of the Exercise Act, pending on the file of III Additional Civil Judge and JMFC Davangere in the interest of justice and equity.” 2. A perusal of the material on record will indicate that one Excise Inspector conducted a raid of Pramod Bar and Restaurant which belongs to the petitioner on 20.04.2023 pursuant to which, he lodged a complaint which was registered as an FIR in Crime No.96/2022-23/1604IE/160404 for offences punishable under Sections 14, 15(1), 29, 32(1), 34, 36, 38(A), 43(A) of the Karnataka Excise Act, 1965. After investigation, the petitioner was arraigned as accused No.2 in C.C.No.5654/2023 pending before the Trial Court, which is assailed in the present petition. 3. Heard learned counsel for the petitioner and learned Addl. SPP for the respondent and perused the material on record. - 3 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 4. A perusal of the material on record will indicate that it is an undisputed fact that prior to conducting raid on the aforesaid Bar and Restaurant of the petitioner, the Excise Inspector did not obtain the requisite warrant as contemplated under Section 54 of the Karnataka Excise Act, thereby rendering the raid as well as consequent FIR and impugned proceedings illegal and the same deserve to be quashed as held by this Court in the case of Chengappa M.S. Vs. State By Excise Police Station – Crl.P.No.10259/2021 dated 22.03.2024, wherein it was held as under: “This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019-20/2610SIE1/261010 registered by Karnataka Excise Department, Hunsur Sub-Division, Hunsur, Mysuru, for the offences punishable under Sections 11, 14, 32, 34, 43(A) of Karnataka Excise Act, 1965 (for short 'K.E. Act'). 2. Heard the learned counsel appearing for the petitioner and learned High Court Government Pleader for respondents. - 4 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 3. The case of the complainant is that he received information from one R. Somashekhar, Assistant Horticulture Officer, HD Kote Taluk SST-2, who was working in the temporary check post of Manuganahalli, alleging that on 16.11.2019, the election code of conduct was in force and during 2019 Karnataka Assembly Elections, Hundai Crerta 4 wheel vehicle was carrying liquor. When the vehicle was searched around 3.50 p.m., 12 bottles of 750 ML Morpheus XO Blended Premium Brandy were apprehended. After the receipt of intimation, the excise inspector along with team went to the spot, seized the liquor and the car, and thereafter, went to the police station and registered FIR and in turn, filed charge sheet which is under challenge. 4. Learned counsel for the petitioner has contended that there is violation of Sections 53 and 54 of the K.E. Act. Without recording reasons, the respondent has arrested the petitioner and seized the liquor and produced before the Court. There is no reference in the FIR of recording reasons, but in the spot mahazar, the respondent has subsequently added the record of reasons, and the respondents have not obtained warrant under Section 53 of the K.E. Act. Therefore, seizing the articles, registering the FIR without recording reasons and commencement of investigation, is violation of the provisions of the K.E. Act. Therefore, the FIR is not sustainable. Hence, prayed to allow the petition. - 5 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 In support of his arguments, the learned counsel has relied up on the following judgments of the Hon'ble Supreme Court and this Court: (i) K.L. Subbayya Vs. State of Karnataka - (1979) 2 SCC 115 (ii) L Srinivas Vs. The Authorised Officer and another - ILR 1999 KAR 2872 (iii) Sri. Abhijeet Lalchand Landge And Others Vs. State of Karnataka And Another in Criminal Petition No.5855/2019 Dated on 26.11.2019. (iv) Kumar vs. State of Karnataka And Another in Criminal Petition No.8658/2019 Dated on 08.01.2020. (v) Babu Naika And Others Vs. State of Karnataka in Crl.R.P. No.52/2014 decided on 09.03.2020 5. Per contra, learned High Court Government Pleader has opposed the petition and contended that the respondent, after following all the procedures, has arrested the petitioner and therefore, prayed for dismissing the petition. 6. Having heard the learned counsel appearing for the parties, perused the records. 7. On perusal of the records, it is clear that one Somashekhar, Assistant Horticulture Officer, gave an intimation to the Excise Inspector that at 3.50 p.m., they apprehended the person having liquor of 10 bottles of brandy, without permit or licence, which is in violation of the provisions of the K.E. Act. The Excise Inspector seized the articles under Panchanama and thereafter, came to the police station and registered FIR. - 6 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 8. The contention of the petitioner is that though in the panchanama, it is mentioned that FIR was prepared after recording the reasons for not obtaining the warrant under Section 53 of the K.E. Act, there is possibility of the accused flee away from the case and escape from the clutches of law. Record of reasons to be recorded before obtaining the warrant. In FIR, it is stated that the Excise Inspector came to the spot, seized the car and apprehended the accused and came to the office and registered FIR. There is no mention about reducing into writing of reasons or not recording reasons under section 54 of the K.E. Act, which is mandatory. 9. As per Section 53 of the K.E. Act, in any case, there is apprehension by the officer that there is chance of accused fleeing away from the justice, the question of coming to the Court for obtaining warrant, does not arise. Here, in this case, there is an electron officer in the check post and he has already caught the accused red hand and kept in his custody. Therefore, Excise Inspector is required to obtain the warrant under Section 53 of the K.E. Act as there is no chance of the petitioner flee away from the spot. 10. That apart, either in the complaint or in the FIR, which is registered by the respondent-complainant, he has not whispered anything about the record of reasons for visiting the spot or apprehending the accused, whereas in the panchanama, the record of reasons is mentioned and it was reduced into writing, thereafter, went to the spot. The - 7 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 record of reasons has not accompanied with the FIR in order to show that the complainant has obtained warrant before registering the FIR. He visited the spot and registered the FIR. There is clear violation of the provisions of the K.E. Act. There is no mention in the FIR for not obtaining warrant, but it is mentioned in panchanama and it is only after thought. It is not sent immediately after the seizure along with PF and FIR. Such being the case, the panchanama appears to be created by the investigation officer after filing of the charge sheet or before filing of the charge sheet. The entire bottles were not sent to the examination and only four bottles were sent. Here also, the violation of the provisions of the K.E. Act is found. 11. This Court, in the case of DAMERA UPENDRA RAO AND ANOTHER VS. STATE BY EXCISE DEPARTMENT POLICE in Criminal Petition No.2121/2022 decided on 14.12.2022, has considered the aforesaid aspect and quashed the proceedings. Further, in the case of G. PUTTARAJU Vs. STATE OF KARNATAKA AND ANOTHER in Writ Petition No.20816/2023 decided on 31.01.2024, this Court has already held that without registering FIR, commencement of investigation, is in violation of the provisions of the Cr.P.C. 12. That apart, sending the less quantity of the bottles than the seized quantity of bottles for examination, and without recording the reasons for not obtaining warrant, seizing the articles and commencing the investigation without registering FIR, is violative of the - 8 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 provisions of the K.E. Act as well as Cr.P.C. Therefore, the criminal proceedings is not sustainable in law. 13. Therefore, the criminal petition is allowed. The criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019-20/2610SIE1/261010 registered by Karnataka Excise Department, Hunsur Sub-Division, Hunsur, Mysuru, is hereby quashed.” 5. In the instant case, it is an undisputed fact that the requisite warrant was not obtained prior to the raid of the Bar and Restaurant of the petitioner and reasons to believe so as to dispense with the requirement of obtaining a warrant had not been recorded in writing by the respondent before conducting the raid. As is clear from the aforesaid judgment of this Court, compliance of the provisions of Section 54 of the Karnataka Excise Act is mandatory and non compliance thereof and non obtaining of search warrant without recording reasons to believe in writing as to why warrant need not be obtained would vitiate the impugned proceedings, which deserves to be quashed. 6. It is also relevant to state that prior to registering an FIR, it was incumbent upon the respondent to file a report failing which the impugned proceedings would get vitiated and deserve to - 9 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 quashed on this ground also as held by this Court in the case of Dayananda @ R Babu Vs. State of Karnataka – Crl.R.P.No.129/2021 dated 04.04.2024 in which, it is held as under: “1. This Criminal Revision Petition is filed by the petitioners, being aggrieved by the judgment of conviction dated 26.12.2015 and order of sentence dated 29.12.2015 in C.C.No.332/2009 on the file of Civil Judge and JMFC, Hunsur and its confirmation judgment and order dated 12.01.2021 in Crl.A.No.12/2016 on the file of VIII Additional District and Sessions Judge, Mysuru, Sitting at Hunsur seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner/accused is convicted for the offences punishable under Sections 32, 34 and 38-A of Karnataka Excise Act (for short ‘K.E.’Act). 2. The rank of the parties in the Trial Court will be considered henceforth for convenience. Brief facts of the case are as under: 3. It is the case of the prosecution that on 24.11.2008 at about 10.15 a.m., the Sub-Inspector of Hunsur Excise Range was deputed on patrolling duty along with his staff near Challahalli Village. They have received credible information that the accused were proceeding on the motorbike bearing Reg. No.KA-09-X-4142 with box containing the liquor. The officials of the Excise-Hunsuru Range have intercepted the said vehicle and enquired - 10 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 about the permit and other related documents to transport the said liquor. When the satisfactory answer was not obtained by them, the Sub-Inspector of Excise has arrested the accused and interrogated them and also seized the items which were being carried by the accused. After having seized the said liquor, the Sub-Inspector took the samples of the said liquor for sending the same to FSL for chemical analysis. As per the averments of the complaint, 48 bottles of liquor have been seized by the Sub-Inspector and each bottle containing 180 ml of Original Choice Deluxe Whiskey. The case came to be registered against the accused Nos. 1 to 3. The respondent police have conducted investigation and submitted charge sheet. 4. To prove the case of the prosecution, the prosecution examined seven witnesses as P.W.1 to P.W.7 and got marked 8 documents as Ex.P1 to P8 and also identified as M.O.Nos.1 to 28. On the other hand, two documents were got exhibited as Ex.D1 and Ex.D2 on behalf of the petitioners. 5. The Trial Court after appreciating the oral as well as documentary evidence on record, convicted the petitioners for the offences stated supra. Being aggrieved by the same, the petitioner preferred an appeal before the Appellate Court, the Appellate Court confirmed the judgment of conviction rendered by the Trial Court. Being aggrieved by the same, the petitioners/accused Nos.1 and 3 have preferred this revision petition seeking to set aside the concurrent findings. - 11 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 6. Heard Sri. Pratheep K.C., learned counsel for the petitioners and Sri Rahul Rai.K, learned High Court Government Pleader for the respondent – State. 7. It is the submission of learned counsel for the petitioners that the concurrent findings recorded by the Courts below in convicting the petitioners is contrary to the evidence and settled principles of Law. Therefore, the impugned judgments are required to be set aside. 8. It is further submitted that the evidence of P.W.7 who is the Investigating Officer which discloses that the FIR was registered on 24.11.2008 at about 10.15 a.m. However, the search and seizure was conducted between 8.30 a.m. to 8.45 a.m. i.e., before registration of FIR, the search and seizure was conducted which is against to the settled principles of law. Therefore, the registration of FIR after conducting search and seizure itself is bad in law and the Court ought not to have acted upon such FIR. 9. It is further submitted that the Trial Court and the Appellate Court committed an error in appreciating the documents which are marked as Ex.P1 to P8 in accordance with law. Whenever there is a dispute regarding admission of the document, the prosecution must have complied Section 294(3) of Cr.P.C. In the absence of the said compliance, the document ought not to have been considered for the purpose of analyzing the evidence. 10. It is further submitted that the incriminating material which is required to be put to the accused in the statement recorded under Section 313 Cr.P.C., has not - 12 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 been put to the accused properly. In the absence of proper recording the statement under Section 313 Cr.P.C., it is not appropriate to record the conviction, however, the Trial Court recorded the conviction without following the procedure established under law, therefore, it is necessary to interfere with the said findings in order to secure the ends of justice. Making such submission, the learned counsel for the petitioners prays to allow the petition. 11. Per contra, Sri. Rahul Rai K, learned High Court Government Pleader (for short ‘HCGP’) vehemently justifying the concurrent findings and submits that the Trial Court and Appellate Court rightly appreciated both oral and documentary evidence on record and recorded the conviction. 12. It is further submitted that the Investigating Officer after receiving the credible information, went to the spot and arrested the accused and seized the items which were being carried by the accused without having license and therefore, the Investigating Officer could not obtain the permission of the Magistrate which is required to be obtained as per Section 53 of the Act, however, the Investigating Officer offered an explanation under which circumstances he could not secure the said permission and the said explanation is marked as Ex.P5, which is in consonance with the provision under Section 54 of the Act. 13. It is further submitted that the accused has not explained nor produced any documents to show that they were authorized to transport the said liquor to the - 13 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 destination. In the absence of proper document being produced, registration of case on the basis of the documents was appropriate. The Courts below after appreciating the evidence, both oral and documentary on record, recorded the conviction. Therefore, interference with the said findings may not be proper. Having submitted thus, learned HCGP prays to dismiss the petition. 14. After having heard the learned counsel for the respective parties, it is necessary to consider as to whether both the Courts have properly appreciated both the facts and law to arrive at a conclusion regarding conviction. 15. On perusal of the entire documents, Ex.P1 is considered as seizure mahazar under which liquor bottles have been seized by stating that the accused were transporting it without having any valid license. It is the submission of learned counsel for petitioner that the search and seizure conducted without registration of FIR in respect of cognizable offence is bad in law is concerned, it is relevant to refer to the provision under Sections 154 and 157 of Cr.P.C.. “154. 15. On perusal of the entire documents, Ex.P1 is considered as seizure mahazar under which liquor bottles have been seized by stating that the accused were transporting it without having any valid license. It is the submission of learned counsel for petitioner that the search and seizure conducted without registration of FIR in respect of cognizable offence is bad in law is concerned, it is relevant to refer to the provision under Sections 154 and 157 of Cr.P.C.. “154. Information in cognizable cases.—(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the - 14 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf: [Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A,section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that— (a) in the event that the person against whom an offence under section 354, section 354A, section 354B,section 354C, section 354D, section 376, 1[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be; - 15 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 (b) the recording of such information shall be video graphed; (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 157. Procedure for investigation.—(1) If, from information received or otherwise, an officer in charge of a 80 police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, - 16 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that— (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. [Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that subsection,and, in the case - 17 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.” On careful perusal of the above said provisions, it appears that there are two kinds of FIRs namely, the FIR can be registered by the informant which was duly signed by him. Secondly, the FIR can be registered by the police officer himself on any information received by him. In both the cases, the information should be reduced into writing and thereafter, the investigation must be carried out. 16. Ex.P1 being a panchanama, it cannot be termed as a complaint. FIR cannot be registered on the basis of panchanama, however, in the present case, the respondent has registered the FIR on the basis of panchanama which is erroneous and not proper. The Trial Court ought not to have acted upon such FIR and cognizance should not have been taken on the strength of the said FIR. However, the Trial Court and the Appellate Court have committed error by considering the said FIR as appropriate and proper and recorded the conviction. Such conviction would be rendered as ineffective and the same can be termed as non est in law. 17. When the registration of FIR itself is void abinitio, the subsequent proceedings including the judgments are liable to be set aside. Therefore, the - 18 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 interference by the Revisional Court in setting aside the concurrent findings is justified. 18. In the light of the observations made above, I proceed to pass the following:- ORDER (i) The Criminal Revision Petition is allowed. (ii) The judgment of conviction dated 26.12.2015 and order of sentence dated 29.12.2015 in C.C.No.332/2009 on the file of Civil Judge and JMFC, Hunsur and its confirmation judgment and order dated 12.01.2021 in Crl.A.No.12/2016 on the file of VIII Additional District and Sessions Judge, Mysuru, Sitting at Hunsur are set aside. (iii) The petitioners are acquitted for the offences punishable under Sections 32, 34 and 38-A of Karnataka Excise Act. (iv) Bail bonds executed, if any, stand cancelled.” 7. In the instant case also, the material on record discloses that a separate/independent report prior to registration of FIR had not been filed which is yet another ground to vitiate the impugned proceedings as held by this Court in Dayananda @ R - 19 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 Babu’s case supra and the impugned proceedings deserve to be quashed on this ground also. 8. A perusal of the material on record will indicate that the apart from petitioner – accused No.2, one Beerappa was arraigned as accused No.3 who gave a voluntary statement that the petitioner - accused No.2 was not responsible for storing excess liquor without requisite license and the same were stored by the said accused No.3 without the knowledge of the petitioner, who was not aware of the same; so also the statements of the charge sheet witnesses would also indicate that necessary ingredients constituting the aforesaid offences have not been made out as against the petitioner. 9. Under these circumstances, I am of the considered opinion that the impugned proceedings qua the petitioner – accused No.2 deserve to be quashed. 10. In the result, I pass the following: ORDER i) The petition is hereby allowed. - 20 - NC: 2025:KHC:1418 CRL.P No. 3132 of 2024 ii) The impugned proceedings in C.C.No.5654/2023 on the file III Additional Civil Judge and JMFC, Davanagere for the offences punishable under Sections 14, 15(1), 29, 32(1), 34, 36 and 43(A) of the Excise Act qua the petitioner-accused No.2 are hereby quashed. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC/MDS List No.: 1 Sl No.: 20