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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 17TH DAY OF JANUARY 2013

BEFORE
THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No.4724/2012

BETWEEN:

Sri. Rajashekar,
S/o Late G.V.Narayan Swamy,
Aged about 53 years
Resident at No.63, 2nd Cross,
Saraswathipuram, Ulsoor,
Bangalore – 560 008. ... Petitioner

[By Sri.B.A.Belliappa, Advocate]

AND:

Ulsoor Police Station,

Represented by
State Public Prosecutor,
High Court Building,
Bangalore. …Respondent

[By Sri.P.Karunakar, HCGP]

This Criminal Petition is filed under Section 482 of the

Cr.P.C. praying to quash the FIR No.163/2011 Dated
12.05.2011 Registered by the Ulsoor Police Station, for the
offence punishable under Section 34 of the Karnataka Excise
Act, 1965 and all further proceedings pursuant thereto in
C.C.No.757/2011 on the file of the I Metropolitan Magistrate
Traffic Court, Mayo Hall, Bangalore.

This Criminal Petition coming for admission on this

day, the Court made the following:
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ORDER

In this petition filed under Section 482 of Cr.P.C.,

the petitioner has sought for quashing the FIR in Crime

No.163/2011 of Ulsoor Police Station, Bangalore,

registered for the offence punishable under Section 34 of

the Karnataka Excise Act, 1965 (for short, ‘the Act’) and

the charge sheet filed thereon in C.C. No.757/2011 on the

file of the I MMTC, Bangalore, for the said offence, inter

alia on the grounds that the search and seizure alleged to

have been conducted by the concerned Police Officer is

without authority of law and is in contravention of the

provisions of Sections 53 and 54 of the Act, as such, the

alleged search and seizure is vitiated, therefore, the

prosecution launched based on such search and seizure,

is liable to be quashed.

2) According to the case of the prosecution, at

about 4.00 pm on 12.05.2011, the P.S.I. of Ulsoor Police

Station received a credible information to the effect that

the petitioner herein, who is a retired Subedar from Indian

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Army, has stored huge quantity of liquor bottles in his

house purchasing them from Military Canteen and in

turn, he is selling them to the public at a higher price.

Immediately, the PSI, secured the panchas, appraised

them about the information received by him and went

near the house of the petitioner. There, he sent a police

constable in mufti as a decoy and the decoy went inside

the house of the petitioner and purchased three liquor

bottles by paying Rs.750/- and thereafter, the decoy gave

signal. Immediately, the PSI along with the panchas and

other staff conducted raid and on search of the house, he

found two bottles of teacher’s scotch – 750 ml. each, five

bottles of Mc Dowell -750 ml each and four bottles of

Royal Challenge-750 ml. each. Those bottles were seized

along with three bottles in the hands of the decoy. A

detailed mahazar was drawn.

3) During interrogation, the petitioner who was in

the house, stated that he had purchased few of those

bottles from military canteen and rest from a private

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liquor shop and that he does not possess any licence

issued by the Excise Department. Therefore, the petitioner

was arrested and on return to the police station, the PSI

prepared a so-muto report, based on which, the aforesaid

case came to be registered and investigation was taken-

up. After completing investigation, the charge sheet came

to be laid.

4) Heard the learned counsel appearing on both

sides.

5) Section 53 of the Act deals with the power of

the Magistrate to issue a warrant and it reads as under:-

53. Power of Magistrate to issue a

warrant.- If a Magistrate, upon information and
after such enquiry (if any) as he thinks
necessary, has reason to believe that an offence
under Section 32, Section 33, Section 34,
Section 36 or Section 37 has been, is being, or is
likely to be, committed, he may issue a warrant,-

(a) for the search of any place in which he has

reason to believe that any intoxicant, still,
utensil, implement, apparatus or materials
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which are used for the commission of such

offence or in respect of which such offence
has been, is being, or is likely to be,
committed, are kept or concealed; and

(b) for the arrest of any person whom he has

reason to believe to have been, to be, or to
be likely to be, engaged in the commission
of any such offence.

6) Section-54, which is in the nature of exception

to Section 53 deals with the power of the concerned officer

or the authority to conduct search, seizure and arrest of a

person without a warrant.

7) Section 54 reads as under:-

54. Power to search without warrant.-

Whenever the Excise Commissioner or a
Deputy Commissioner or any Police Officer
not below the rank of an Officer-in-charge
of a Police Station or any Excise Officer not
below such rank as may be prescribed, has
reason to believe that an offence under
Section 32, Section 33, Section 34, Section
36 or Section 37 has been, is being, or is
likely to be, committed, and that a search
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warrant cannot be obtained without

affording the offender an opportunity of
escape or of concealing evidence of the
offence, he may, after recording the
grounds of his belief.-

(a) at any time by day or by night

enter and search any place and
seize anything, found therein
which he has reason to believe to
be liable to confiscation under
this Act; and

(b) detain and search and, if he

thinks proper, arrest any person
found in such place whom he
has reason to believe to be guilty
of such offence as aforesaid.

8) Reading of Sections – 53 and 54 extracted

above clearly indicate that the rule is that a search of any

place or arrest of any person for the commission of any of

the offences enumerated therein can only pursuant to a

search warrant issued by the competent jurisdictional

Magistrate. No doubt, Section 54 empowers the officer or

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authority concerned to conduct search or arrest a person

without a warrant as contemplated under Section 53 of

the Act, however, it can be resorted to only where the

officer concerned has reason to believe that the offence

enumerated therein has been or is being or is likely to be

committed and that a search warrant cannot be obtained

without affording the offender an opportunity of escape or

of concealing evidence of the offence, and in this regard

he should record the grounds of his belief. It is only

under those extraordinary circumstances, a search or

arrest could be effected without a warrant from the

jurisdictional Magistrate.

9) The Apex Court in the case of K.L. Subhayya

Vs. State of Karnataka [AIR 1979 SC 711] while

considering the scope of Sections 53 and 54 of the Act,

has held that Section 54 is a special provision which

arises in urgent cases where it may not be possible for the

officer concerned to get a warrant from the Magistrate.

After referring to Sections 53 and 54, Their Lordships

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having regard to the admitted fact that the inspector, who

searched the car of the appellant therein had not made

any record of the ground on the basis of which he had a

reasonable belief that the offence under the Act was being

committed, before proceeding to search the car and thus

the provisions of Section 54 were not at all complied with.

Their Lordships in Paragraph-4 of the judgment held that,

it had rendered entire search without jurisdiction and as a

logical corollary, vitiated the conviction. Their Lordships

have further held that both Sections 53 and 54 contain

valuable safeguards for the liberty of the citizen in order to

protect them from ill-founded or frivolous prosecution or

harassment. It has been further held that there has been

a direct non-compliance of the provisions of Section-54 of

the Act which renders the search completely without

jurisdiction and in this view of the matter, the Apex

Court allowed the appeal, set aside the conviction and

sentence passed by the trial court and affirmed by this

Court and acquitted the appellant/accused of the charge

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framed against him for the offence punishable under

Section 34 of the Act.

10) This Court in the case of L. Srinivas Vs. The

Authorised Officer and Superintendent of Excise,

Bangalore Rural District, Bangalore [1999(4) Kar.L.J.

302] has held that, the search conducted by the officer

without recording any of the grounds on the basis of

which he had a reasonable belief, as contemplated under

Section 54 of the Act, is illegal and without jurisdiction.

11) In the case on hand also, it is not the say of

the PSI that he was of the opinion that a search warrant

could not be obtained without affording the offender an

opportunity of escape or concealing of the evidence, nor he

had recorded the grounds for his belief. On the other

hand, even according to the suo-muto report of the PSI

submitted after the alleged search and seizure, he had

received a credible information that this petitioner who is

an ex-military man has stored liquor bottles in his house,

after getting them from military canteen. It is not as if the

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petitioner would run-away from the place if the officer

were to wait for a search warrant. There were no

circumstances to indicate that it was an urgent case so as

to resort to the power under Section 54 of the Act bye-

passing the general rule contemplated under Section 53.

As ruled by the Apex Court in the aforesaid decision, there

is total non-compliance of Section 54 of the Act and

therefore, the entire seizure is vitiated and is without any

authority. The whole case of the prosecution against the

petitioner is based on the alleged search and seizure. If

the search and seizure said to have been conducted by PSI

is held to be without any authority and is in violation of

Section 54 of the Act, the very basis of the prosecution is

vitiated. Therefore, no useful purpose would be served in

continuing the prosecution against this petitioner. The

continuance of the prosecution on the basis of such

vitiated search and seizure would be an abuse of the

process of the court causing unnecessary harassment to

the petitioner. In this view of the matter, I am of the

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considered opinion that the prosecution launched against

the petitioner is liable to be quashed.

12) In the result, the petition is allowed. The

prosecution launched against the petitioner in C.C. No.

757/2011 on the file of the I MMTC, Bangalore, is hereby

quashed.

Sd/-
JUDGE

KGR*