Case Note & Summary
The petitioner owned a motorcycle that was seized by excise officials on 02.12.2008 on the allegation that it was used to transport illicit liquor. The officials claimed to have found 48 bottles of whiskey. Notice under Section 43(b) of the Karnataka Excise Act, 1965 was issued, and confiscation proceedings were initiated. The Deputy Commissioner of Excise, after inquiry, ordered confiscation of the vehicle on 15.11.2016. The petitioner appealed, but the Sessions Court dismissed the appeal on 01.08.2017. The petitioner then filed the present revision petition under Section 397 read with 401 of the Code of Criminal Procedure, 1973. The core legal issue was whether the confiscation order could stand when the criminal court had already acquitted the petitioner of the substantive offence under the Excise Act on the same facts. The prosecution’s case rested on the seizure, but its mahazar witnesses turned hostile, and the official witnesses gave contradictory evidence about the number of bottles seized and the mahazar procedure. The court noted that in the parallel criminal case (C.C.No.749/2009), the Judicial Magistrate had acquitted the petitioner on 16.08.2013 after full trial, and the State had not appealed. That acquittal attained finality. The High Court held that the confiscation authority was bound by the criminal court’s finding, and once the accused was acquitted, the basis for confiscation collapsed. The confiscation order was set aside, and the bank guarantee executed for interim custody was ordered to be released to the petitioner.
Headnote
A) Criminal Procedure - Confiscation Proceedings - Effect of Acquittal - Karnataka Excise Act, 1965, Section 43 - The authorized officer confiscated a motorcycle used for alleged illicit liquor transportation. The accused was charged and tried in a criminal court for the same facts, resulting in acquittal, which was not appealed and attained finality. Held, the confiscation order is unsustainable and must be set aside, as the criminal court's judgment binds the confiscating authority. (Paras 11-12)
B) Evidence - Proof of Seizure - Hostile Witnesses - Karnataka Excise Act, 1965 - The prosecution examined mahazar witnesses who turned hostile and did not support the seizure. Official witnesses gave contradictory statements regarding the quantity of liquor seized. Held, the prosecution failed to establish the seizure, and the confiscation could not be sustained solely on such evidence. (Paras 9-10)
Issue of Consideration
Whether the confiscation order under Section 43 of the Karnataka Excise Act is sustainable when the accused has been acquitted in the criminal case for the same set of facts?
Final Decision
The Criminal Revision Petition is allowed. The confiscation order dated 15.11.2016 passed by the Deputy Commissioner of Excise, Hassan and confirmed by the V-Additional District and Sessions Court, Hassan on 01.08.2017 are set aside. The bank guarantee of Rs.31,000/- executed by the petitioner is ordered to be released to him.
Law Points
- Legal points not extracted
- Confiscation under Karnataka Excise Act cannot be sustained when accused acquitted in criminal case on same facts
- burden of proof under Section 43
- necessity of independent witnesses
- hostile witnesses
- contradictions in prosecution evidence
- effect of acquittal on confiscation proceedings
- binding nature of criminal court acquittal.
Case Details
2026 LawText (KAR) (07) 7
Criminal Revision Petition No. 1223/2017
Basavaraju .P for petitioner, Thejesh .P, HCGP for respondents
State Represented by Excise Sub-Inspector, Arakalagud Division and Deputy Commissioner of Excise, Hassan Division
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Nature of Litigation
Criminal revision petition against the order of confiscation of a motor vehicle under Section 43 of the Karnataka Excise Act, 1965.
Remedy Sought
The petitioner sought to set aside the confiscation order dated 15.11.2016 and the appellate order dated 01.08.2017 confirming it.
Filing Reason
The confiscation was challenged on the ground that the parallel criminal case for the same offence had ended in acquittal, which was not appealed and attained finality, and that the prosecution had failed to prove the seizure due to hostile witnesses and contradictions.
Previous Decisions
The Deputy Commissioner of Excise ordered confiscation on 15.11.2016; the V-Additional District and Sessions Court, Hassan dismissed the appeal on 01.08.2017, confirming the confiscation.
Issues
Whether the confiscation order under Section 43 of the Karnataka Excise Act can be sustained when the accused has been acquitted in the criminal case on the same set of facts?
Whether the prosecution failed to prove the seizure due to hostile witnesses and contradictions in the evidence?
Submissions/Arguments
Petitioner argued that the confiscation order was contrary to evidence, as independent mahazar witnesses turned hostile and official witnesses gave contradictory statements about the number of liquor bottles seized; the criminal court had acquitted him of the substantive offence on the same facts, and that acquittal was not appealed, so it bound the confiscation authority.
Respondent argued that the petitioner was the admitted owner and failed to prove lack of connivance or discharge the burden under Section 43, and that the confiscation order was proper and did not require interference.
Ratio Decidendi
When an accused is acquitted of the substantive offence under the Karnataka Excise Act by a competent criminal court on the same set of facts and that judgment attains finality, the confiscation order passed under Section 43 of the Act cannot be sustained as the confiscation authority is bound by the criminal court's decision.
Judgment Excerpts
When the petitioner has been acquitted for the offence ... on the similar set of facts, the second respondent ought not to have passed the impugned order confiscating the alleged Motor bike in favour of the Government.
PW.2 and PW.3 – said to be the mahazar witnesses have been completely turned hostile to the case of prosecution.
The order of confiscation is unsustainable in law and accordingly liable to be set- aside.
Procedural History
On 02.12.2008, excise officials seized motor bike No. KA-13-U-1743 alleging transportation of 48 bottles of illicit whiskey. Notice under Section 43(b) of the Karnataka Excise Act issued on 15.06.2009. The Deputy Commissioner of Excise, Hassan initiated confiscation proceedings and passed order of confiscation on 15.11.2016. Meanwhile, criminal case C.C.No.749/2009 was tried by JMFC, Arakalagudu, and the petitioner was acquitted on 16.08.2013; the judgment was not appealed. The petitioner appealed the confiscation order in Crl.A.No.245/2016 before the Sessions Court, Hassan, which dismissed the appeal on 01.08.2017. The present revision petition was filed thereafter.
Acts & Sections
- Karnataka Excise Act, 1965: 43, 43(b), 13(1)(14), 32(1)
- Code of Criminal Procedure, 1973: 397, 401
