Karnataka Excise Act | Police Can't File FIR Solely On Basis Of Seizure Panchnama: High Court

The Karnataka High Court has set aside the conviction handed down to two accused under Sections 32, 34 and 38-A of the Karnataka Excise Act, holding that the police cannot file an FIR on the basis of seizure panchanama.

A single-judge bench of Justice S Rachaiah allowed the revision petition filed by Dayananda @ R Babu and Another and set aside the conviction handed down to them by the trial court which was confirmed by the appellate court.

It said “The judgment of conviction dated 26.12.2015 and order of sentence dated 29.12.2015 and its confirmation judgment and order dated 12.01.2021 are set aside. The petitioners are acquitted for the offences punishable under Sections 32, 34 and 38-A of Karnataka Excise Act.”

The prosecution alleged 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 had received credible information that the accused were proceeding on the motorbike with a box containing the liquor.

It was stated that the officials of the Excise-Hunsuru Range intercepted the said vehicle and enquired about the permit and other related documents to transport the said liquor. When a satisfactory answer was not obtained, it is stated that the Sub-Inspector of Excise arrested the accused, 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. Thus a case came to be registered against the accused Nos. 1 to 3.

The petitioners argued that evidence of P.W.7 who is the Investigating Officer 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 conducted is against the settled principles of law.

Therefore, it was argued that 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.

Further, it was said that in the absence of proper recording of 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.

The prosecutor argued that the Investigating Officer after receiving the credible information, went to the spot, arrested the accused and seized the items which were being carried by the accused without having a licence 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.

It was stated that 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.

Moreover, it was argued that the accused has not explained nor produced any documents to show that they were authorised to transport the said liquor to the destination. In the absence of proper documents being produced, registration of the case on the basis of the documents was appropriate. 

The bench referred to Section 154 and 157 of the Code of Criminal Procedure and said “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.”

Following this it held that Ex.P1 being a panchanama cannot be termed as a complaint. It held that an FIR cannot be registered on the basis of panchanama, but, in the present case, the respondent had registered the FIR on the basis of panchanama which was 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, the Court said.

It added “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.”

Accordingly, it allowed the petition.

Appearance: Advocate Pratheep K.C for Petitioners.

HCGP Rahul Rai K, for Respondent

Citation No: 2024 LiveLaw (Kar) 171

Case Title: Dayananda @ R Babu & ANR AND State of Karnataka

Case No: CRIMINAL REVISION PETITION NO. 129 OF 2021

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