STATE OF KARNATAKA Vs. GOPALAKRISHNA

JUDGEMENT

(1.) HEARD the learned State Public Prosecutor.

(2.) THE present petition is filed questioning the judgment against an order of confiscation under Section 34 of the Karnataka Excise Act, 1965. The Appellate Court having held that the allegation was that the respondent -accused was carrying liquor beyond the permissible limit, the respondent was said to be selling liquor from a bag containing 27 bottles of whisky of 180 ml. each and the said liquor having been confiscated, an appeal was preferred before the Appellate Court. The Appellate Court has concluded that having regard to the allegation that the respondent was carrying more than the permissible limit namely more than 4.860 litres of whisky, it was necessary for the prosecution to establish that the said quantity was indeed being carried. However, it was found that apart from sending one bottle of the seized liquor for chemical examination and producing the same before the court, the other bottles of whisky were not produced. Therefore, the court has held that even if any such bottles were seized, the question whether the bottles contained whisky or anything else was to be verified through the chemical examiner and the quantity should have been proved to have exceeded 4.860 litres, in the absence of which it could not be said that he was carrying liquor, and has allowed the appeal. It is that which is under challenge in the revision.

(3.) FURTHER , in interpreting Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967, this Court has consistently held the same view, in circumstances as above (See State of Mysore vs. Mohamed Jaffar and others, 1966(2) KLJ 91 and Mahapursha Durga Joglekar vs. State of Karnataka, 1977(2) KLJ 463 as well as in M.R. Manjunath Ramappa Gowda vs. The Authorized Officer & Deputy Commissioner of Excise, Chickmagalur District & Another, 2012(4) AIR Kar Reporter 18). With particular reference to the presumption as to commission of offence in certain cases in prosecutions under Sections 32 and 34, it has been held that it shall be so presumed until the contrary is proved, that the accused person has committed an offence punishable under the Section in respect of liquor, however, a rebuttable presumption. If the petitioner is found in possession of intoxicating substances for which he did not have a permit, it would certainly give rise to a presumption that an offence has been committed. But however, when a person is sought to be prosecuted, the prosecution is required to prove beyond all reasonable doubt that there is a clear violation of the provisions of the Excise Act.