BASHA ALIAS BASHAKHAN AND Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS criminal reference arises pursuant to an order dated 29-10-2001 passed by the learned single Judge of this Court, wherein, he has referred the point of law to the Division Bench in the following circumstances. As far as the facts are concerned, it was alleged that on 9-12-1990 at about 4 p. m. the Inspector of Excise, DEIB, Bangalore, was on patrol duty and he received information that I. D. Liquor was loaded in an Ambassador Car bearing Registration N. MEQ 8699 at Bylanarasapura village, and that the same was being transported to Bangalore. The Officer sought the assistance of two panchas and kept a close watch whereupon at about 4. 30 p. m. the Ambassador Car came near Sandi Maidana, Hoskote, the Car was stopped and the contraband was found in the car and the occupants failed to produce any valid licence or permit for transporting the contraband. The occupants of the car were arrested and the car along with the contraband was seized. A charge-sheet was filed in Criminal Case No. 226/1992 on the file of the Munsiff and JMFC at Hoskote against one Basha Khan and another. This case ended in an acquittal, the essential finding being that there was no evidence to establish conscious possession and that consequently, the accused could not be held liable. Simultaneously, the departmental adjudication was taken up and a show-cause notice was issued to the petitioner-Basha Khan under Section 43 (B) of the Karnataka Excise Act, calling upon the accused to show-cause as to why the car seized on 9-12-1990 should not be confiscated to Government as there were reasonable grounds to believe that an excise offence has been committed, insofar as it was involved in transporting of liquor. The accused took up the contention that the car was parked near the market at Hoskote as it had developed engine trouble and secondly, that there was nothing inside the car and the main contention taken up before the Criminal Court was that there was no material to establish any nexus between the accused and the contraband. The Authorised Officer by his order dated 24-11-1993 recorded an adverse finding to the effect that the car was liable for confiscation.

(2.) WE may mention here that the accused who is the petitioner before the High Court in Criminal Revision 203 of 1999 had taken up the principal legal defence that the departmental proceedings were subservient to the judicial proceedings and where the charges related to the same set of facts that the order of acquittal passed in the criminal proceedings binds the department and that no adverse order could result against the petitioner.

(3.) AGAINST the order of the Authorised Officer, the petitioner preferred an appeal in Criminal Miscellaneous No. 8/1993 which was dismissed by the learned I Additional Rural District and Sessions Judge, Bangalore District on 15-3-1999 confirming the order of the Authorised Officer under Section 43 (E) of the Karnataka Excise Act. Being aggrieved by this decision, the appellant therein filed Criminal Revision 203 of 1999 before this Court. When the petition came up for hearing reliance was sought to be placed on behalf of the petitioner on a decision of a learned single Judge of this Court in Authorised Officer and Deputy Conservator of Forest, Bagalkot v. Ramakrishnappa Kedarba Urnkar, 1997 Cri LJ 4695, though that case was in respect of an analogous provision under the Karnataka Forsest Act, 1964. It was a situation wherein two simultaneous proceedings, one a prosecution before the learned Magistrate for the commission of offence punishable under the Forest Act, and another for confiscation before the Authorised Officer, had been initiated. The criminal case had ended in an acquittal and in the light of this decision M. B. Vishwanath, J. (as he then was) held that since the accused were acquitted, it could not be said that the vehicle in question was used for the commission of any offence, and the vehicle therefore could not have been confiscated by the Authorised Officer. As against this decision, the learned Public Prosecutor relied on the decision of the Supreme Court in Divisional Forest Officer v. G. V. Sudhakar Rao, AIR 1986 SC 328 : (1986 Cri LJ 357), which again was a case in respect of an analogous provision of the Andhra Pradesh Forest Act, 1967, but in respect of two separate surroundings i. e. the prosecution before the Magistrate and the departmental adjudication before the Authorised Officer. The Supreme Court held that the two proceedings being independent, that the decision in one would not bind the other. The learned single Judge, in view of the divergent views in these two decisions has referred the point of law to the Division Bench by way of these references for purposes of deciding the correct legal position. We may mention in passing that the second Revision Petition No. 453 of 1999 is a prosecution under the Karnataka Forest Act, where the contraband was the Sandalwood, but the controversy in that case is identical to the one in the first proceedings namely the question as to whether the decision of the criminal Court binds the Department in the adjudication.