Andhra HC (Pre-Telangana)
Kannepogu Ramulu vs The State Of A.P. Through Sho, ... on 21 August, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1146 of 2014 21-08-2014 Kannepogu Ramulu .Petitioner The State of A.P. through SHO, Khanapuramhaveli P.S... Respondents Counsel for the Appellant : Sri Mummaneni Srinivasa Rao Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 1996(1) ALT 953 2. 1995(3) ALD 80 3. 2003(1)ALD (Crl.) 433=2003(2) ALT 444 4. 2007 Cri.LJ 346 5. 1997(2) ALD (Crl.) 473 6. 1978(1) APLJ 391 7. 1980(1) ALT 8 (DB) 8. (1985)4 SCC 573 9. (2004)4 SCC 129 10. 199593) ALD 1090 (DB) 11. AIR 1970 SC 829 12. (2004)4 SCC 129 13. 1978(1) APLJ-391(DB) 14. 1980(1) ALT 8 HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1146 of 2014 ORDER :
1) This revision is filed by the petitioner/Accused No.1 owner of the vehicle under Section 397 and 401 Cr.P.C. aggrieved by the order dated 14.05.2014 in Crl.M.P.No.1235 of 2014 in Crime No.275/2014 of Khanapuram Haveli Police Station, Khammam District registered for the offence punishable under Section 34(a) of A.P. Excise Act under which the petition under Section 457 of Cr.P.C filed by the petitioner was dismissed by the learned Judicial Magistrate of the First Class (Excise), Khammam.
2) Brief facts are that the petitioner is the owner of the auto bearing No.AP 20 TB 6112 and the same was seized by the Khanapuram Haveli police in connection with a case in Crime No.275 of 2014 under cover of panchanama dated 28.04.2014 for the offence punishable under the above section of law for which the accused No.1 being the owner of the vehicle filed the petition in Crl.M.P.No.1235 of 2014 under Section 457 Cr.P.C praying to release the vehicle. The grounds urged in the said petition that he is depending on the income by driving the auto only and there is no other source of income except running the crime vehicle which the police seized. The learned Magistrate dismissed the petition on the ground that the Court has no jurisdiction to entertain the petition as the offence is under Excise Act.
3) Aggrieved by the same, the petitioner preferred this revision on the grounds that the trial Court erred in dismissing the petition without any valid or cogent reasons, that it ought not to have proceeded on the wrong premise with regard to the actual custody of the seized vehicle, for the custody could be either actual or symbolic, that the Judicial Magistrate of the First Class has jurisdiction as the report of seizure of the vehicle was made after registration of crime and more particularly the crime was registered by the police (Law and order) and prayed to release the vehicle as it is the only source of income for the petitioner.
4) The learned Public Prosecutor opposed the revision petition stating the learned trial Magistrate is correct in his observation on want of jurisdiction to entertain the application and it makes no difference of the crime registered is by police or excise or forest or other officials and thus there is nothing for this Court to interfere by sitting in revision and sought for dismissal.
5) Heard both sides and perused the material on record.
6) Now, the points that arise for consideration are
(i) Whether the impugned order of the learned Special Judicial Magistrate of the First Class (Excise), Khammam dated 14.05.2014 is not sustainable and to what extent this Court to interfere while sitting in revision and with what observations?
(ii) To what result? POINT No.i:
7) Pending investigation of the above excise crime under Section 34(a) of the A.P. Excise Act with reference to seizure of the contraband carrying in the vehicle by the regular police, the application is filed under Section 457 Cr.P.C before the lower Court by the petitioner- accused No.1 claiming as owner of the vehicle saying the crime auto is the only source of income by its self driving to eke out his livelihood and being the owner of the vehicle is seeking interim custody undertaking not to change the colour and utility.
8) The Learned Magistrate by order dated 14.05.2014 dismissed the same for want of jurisdiction to entertain the petition with the observations that Section 13(e) of the A.P. Prohibition Act and Section 46(e) of the A.P. Excise Act with the wording similarly with non-abstante clause, irrespective of what is contained in Cr.P.C when the Deputy Commissioner of Excise/Prohibition or the appellate authority is seized with the matter under the Acts, no Court shall entertain any application with respect to liquor, receptacle, package, covering any animal, cart, vehicle or other conveyance, but for they alone with exclusive jurisdiction with regard to the disposal of the same (Section 13-E among Sections 13-A to 13-F is introduced in the A.P. Prohibition Amended Act with effect from 12.10.1995). In S.Kareemulla V. Prohibition and Excise Sub-Inspector, Nandyal a single Judge of the High Court held of the petitioner entitled to approach the Magistrate under Section 451 Cr.P.C for release of the vehicle seized in the Prohibition case, and in Jitendra Palnitker V. State of A.P also the High Court held that Magistrate has jurisdiction to pass order for release of the vehicle involved in the Excise offence for interim custody, whereas in Oruganti Seshachala Venkateswarlu V. Government of A.P it was held that whenever an excise offence is committed and anything liable for confiscation under Section 43 of the Act is seized or detained under the Excise Act, the officer seizing or detaining such property shall produce the seized property with report before the Deputy Commissioner of Excise concerned who shall initiate confiscation proceedings after due notice to the parties if satisfied that an offence has been committed whether or not prosecution is instituted in the commission of such an offence. Thus, the Section does not bar the police and excise officers from seizing the vehicle for registering the case and reporting the Magistrate of the crime and in view of the express bar under Section 46- E of the Excise Act, the property when not produced before the Court in an enquiry or trial, the Magistrate is not empowered under Section 457 Cr.P.C in respect of custody and disposal of the property. The general provision of Section 452 Cr.P.C with regard to the final disposal by Criminal Court by discretion, confiscation or delivery to the person entitled and Section 457 Cr.P.C for disposal of the property seized even not produced before Criminal Court by police must necessarily yield where a statute makes a special provision with regard to forfeiture of any property and its disposal. The learned Magistrate also referred a Division Bench Judgment of the High Court in Shaik Ghani V. The State of A.P in this regard. In fact the Division bench of this Court held particularly at paras 11 and 12 that Kareemulla (supra) is per-incuriam as not laid down the correct law including by its non referring to the Amended A.P. Prohibition Act, Section 13-A to 13-F which came into force with effect from 12.10.1995 though the judgment was latter on 01.11.1995 and the judgment in M.Basha V. State of A.P of another single Judge only laid down the correct law. It was in answering a reference in relation to the above two conflicting expressions of Karimulla & Basha (supra) it was so held. The facts before the Division bench were that jeep was involved in an excise offence and the learned Magistrate following Kareemulla (supra) ordered release of the vehicle under Section 451 read with 457 Cr.P.C to the owner and the learned Sessions Judge in revision against the order set aside the same by placing reliance upon Basha (supra) and when the matter came before the learned Single Judge of the High Court said reference was made to resolve the conflict. Section 13-E of the A.P. Prohibition Act referred therein equally Section 14.
9) The Division bench extracted the observations in M.Basha (supra) at para-7 with reference to Section 13(E) and 14 of the A.P.Prohibition Act, 1995 including amended provision supra which read:-
It is however, true that seizure any of the matter by the Deputy Commissioner of Prohibition and Excise is a sine- qua-none for the operation of the above bar. Therefore, it would be open to the owners of the properties to set up want of knowledge of the contravention of the provisions of the above Act by the driver or other person to whom the vehicle was entrusted for a bonafide purpose and seek return of the vehicle under Section 451 Cr.P.C provided the matter is not seized by the concerned Deputy Commissioner of the Prohibition and Excise.
10) The Division bench also referred Oruganti Seshachala Venkateswarlu (supra) to which one of the Judges of the Division Bench was a party in a case under A.P. Excise Act by referring to State of A.P. V. P.K.Mahammad , Md.Yaseen V. Forest Range Officer, Rayachoty and of the Apex Court in District Forest Officer V. G.V.Sudhakar Rao .
It was observed by the Division Bench in the Shaik Ghani (supra) there from holding at paras 11 and 12 that Basha (supra) is in conformity with the law declared by the Apex Court (in the Forest Offence under the A.P. Forest Act) supra, that the general provisions of Cr.P.C must necessarily yield where a statute makes a special provision with regard to the forfeiture of any property and its disposal. The Division Bench also referred the expression of the Apex Court in State of West Bengal V. Sujit Kumar Rana which is in reference to the West Bengal Forest Act Section 59(g) in saying it is identical to Section 13(E) of the A.P. Prohibition Act that once confiscation proceedings initiated, jurisdiction of the criminal Court being barred and High Court also in exercise of its inherent powers under Section 482 Cr.P.C cannot order custody including interim release of property other than in exercise of power for judicial review. The division bench in Shaik Ghania (supra) while referring the Division Bench in Md.Yaseen (supra) and the another expression in P.K.Mahammad (supra) in dealing with A.P. Forest Act Section 44(2)(a) and Section 20 or 29 saying the Forest Act stated that it contemplates two procedures:- one is confiscation of goods forming subject matter of the offence by forest officer and the other for trial of an accused person of a forest offence and even acquittal of the accused in trial before Magistrate did not necessarily entail in nullifying the order of confiscation by the forest officials where the property confiscated is specified as involved in respect of the forest offence.
11) It is referring to these expressions supra in the impugned order of the present revision, the learned Magistrate observed that the auto of the petitioner-accused No.1 seized under cover of panchanama from him and that is also form part of the facts in the remand report and it is not known whether proceedings are pending before Deputy Commissioner of Excise for disposal of the property; in the crime investigation is in progress for the offence concerned and thereby petitioner is not entitled to custody of the auto.
12) Now, coming to legality or correctness of the above detailed impugned order of the Magistrate concerned:-
Section 14 of the A.P. Prohibition Act reads:
14.Police to take charge of articles seized:- All officers in charge of police Stations shall take charge of and keep in safe custody under seal all articles seized under this Act along with samples which shall also be sealed with the seal of the officer-in-charge of the police station. The seized property including vehicles involved shall be produced before the Deputy Commissioner of Prohibition and Excise having jurisdiction, to take action in accordance with the procedure specified in Section 13.
13) In fact a combined reading of Section 13(E) and Section 14 would go to show that the property seized under the provisions of the Act even it is by the regular police that shall have to be produced before the Deputy Commissioner of Excise having jurisdiction for the purpose of taking action in accordance with Section 13 of the Act. It is undoubtedly a mandatory provision. Then, Section 13 provides for confiscation of the property in certain cases specified therein and an elaborate procedure is prescribed. Section 13(E) creates a bar of jurisdiction of the Criminal Court to entertain a petition for disposal of the property. Thus, under the A.P. Excise and Prohibition Acts from the provisions relevant supra, the police are bound to produce the seized vehicle before the Deputy Commissioner of the Excise/Prohibition concerned or the like who shall alone having the exclusive jurisdiction to dispose of the property including by confiscation and even it is for any interim custody pending confiscation proceedings and thus it makes no difference as to who detected the crime and booked the case and seized the vehicle or other article or property involved in the offence either under the Excise Act or under the Prohibition Act as the case may be leave about the Forest Acts. Here the crux involved to decide is, once the A.P. Prohibition Act Section 14 mandates even the police to keep in custody of the vehicle or other property involved in the offence seized and to produce only before the Deputy Commissioner of Prohibition concerned with similar provisions in the Excise Act even; merely because there is any delay in production before the Deputy Commissioner concerned, can it be said that there is a legal vacume in the provisions of the A.P. Prohibition & Excise Acts? When it cannot be so held as the enactments mandate to produce the property only before the Deputy Commissioner concerned, it can be said for all purposes that, the Deputy Commissioner who is conferred with the statutory right as quasi-judicial authority to adjudicate and confiscate or to deal with disposal otherwise of the property; is the custodia legis and not the criminal Court under the general provisions of Cr.P.C and when such is the legal position from the provisions it does not entitles for interim custody in moving an application before the Magistrate Court concerned under Section 457 or 451 Cr.P.C as the case may be by the owner of the vehicle. In fact even that single judge expression of Basha (supra) held as good law by the Division Bench in Sk.Ghani (supra) did not specifically deal with this situation as Division Bench answered in Sk.Ghani (supra) as to the two conflicting judgments of Kareemulla and Basha (supra) in holding Kareemulla (supra) is per-incuriam and Basha (supra) is good law. The other decisions of P.K.Mahammad and Md.Yaseen (supra) of this Hogh Court of 1978 and the Division Bench in 1980 concerned are even relating to the Forest offence and not even under the Excise offence or Prohibition offence as Prohibition Act was not came into existence by then even. It is in G.V.Sudhakar Rao and Sujit Kuamr (supra) the law laid down in P.K.Mahammad and Md.Yaseen (supra) were given approval by the Apex Court in the Forest offences. In Oruganti Seshachala Venkateswarlu (supra) also by approving Basha (supra), there also this distinction was not specifically laid down muchless dealt with. Importantly and in this regard, there are two more judgments require reference viz., S.Jagan Mohan Rao a single judge expression of this High Court, that not brought for reference either in Karimulla or Basha or Oruganti or even in Shaik Ghani (supra). Not only the above, the other decision important there is a Division Bench judgment of this High Court in P.Swarupa V. State of A.P to say said expression was even 7 days after the A.P. Prohibition Amendment Act came into force on 12.10.1995 incorporating Section 13-A to 13-F of which Section 13-E is relevant referred supra, in saying whether the crime registered exclusively under the A.P.Excise Act the vehicle can be released only by the Deputy Commissioner of Excise and not by the criminal Court under Chapter XXXIV Cr.P.C either under Section 451 or 457 Cr.P.C. for interim custody even. The decisions in Karimulla, Basha, Oruganti and Shaik Ghani (supra) are subsequent to Swarupa (supra) it appears. The Division bench in P.Swarupa (supra); having referred the Apex Courts expression in G.V.Sudhakar Rao (supra) on the principle that Cr.P.C provisions being general law shall yield to the special provisions in the A.P. Forest Act and held therefrom that by this principle when the Cr.P.C provisions yield to the A.P. Excise Act special provisions and thus so far as the A.P. Excise Act concerned, it is from the prohibition for the Magistrate to deal with interim custody even, as the special jurisdiction is conferred to the Deputy Commissioner concerned for confiscation under Section 45, 46 & 46-E of the Act with the saying those are liable for confiscation for the Deputy Commissioner to dispose of. There, the A.P. Prohibition Act pre-amended provisions only referred having unnoticed the amendment in A.P. Prohibition Act with similar provisions made few days before to the Judgment in saying at Para-11 that if Excise Act and Prohibition Act provisions kept in juxtaposition of the relevant for similar provisions like in the Excise Act not made in the Prohibition Act if the crime is registered under the A.P. Prohibition Act as there is no such bar the Magistrate jurisdiction for ordering interim custody under Section 451 not taken away, but for under the Excise Act from the special provision. It was also held that if the crime is registered under the A.P. Prohibition Act and also under the A.P. Excise Act, the Magistrates jurisdiction is not seized under the Prohibition Act, not being seized by Excise Act. The Division Bench in Swarupa (supra) having held that learned Single Judge of the High Court in Crl.M.P.No.2529 of 1995 dated 25.07.1995, in holding Magistrate got jurisdiction in an Excise case for ordering interim custody of vehicle under the Cr.P.C is not correct; had they were brought to their notice the A.P. Prohibition Act amended provision with similar prohibition in Excise Act incorporated in the Prohibition Act, they could hold under both the enactments from the special provisions when Cr.P.C general provisions will not prevail as held in Sudhakar Rao (supra) by the Apex Court; but for not noticed and not brought to their notice. In fact the Division Bench in Swarupa (supra) held relying upon the expression of the Apex Court in Motibhai F.P & Co. V. Collector, Central Excise that the argument of learned Public Prosecutor that when crime registered under A.P. Excise and A.P. Prohibition Act, there is even no provision in prohibition Act, the provision in the Excise Act, bars jurisdiction has not accepted as it would not be proper for the Courts to extend the scope of the penal provision in one Act into under Act to widen the scope.
14) Thus, the settled principles of law from all the above expressions laid down are:
(i) Once there is no specific provision in one Act relating to a penal consequence (which include seizure/forfeiture/confiscation of property (Section 53 IPC), the specific provision of another similar Act cannot be imported to read to say as if it can be said thereby as existed (vide Motibhai (supra) of the Apex Court);
(ii) When there is a special provision in a statute, the general provision in Cr.P.C yields to the special provision to prevail over the Cr.P.C to say the authorities under the special provision of the Act alone got exclusive jurisdiction and it debars the jurisdiction of the authorities under the general provisions of Cr.P.C in that area (vide G.V.Sudhakar Rao (supra) of the Apex Court that was also followed in the later expression in State of West Bengal V. Sujit Kumar and in some of the decisions of the Apex Court referred therein in a Forest offence relying upon State of A.P. V. P.K.Mohd and referred Mohd. Yaseen V. F.R.O regarding exclusive jurisdiction of Forest Department officials for confiscation once property seized brought to them under the A.P. Forest Act);
(iii) The Division Bench in Sheik Ghani (supra) in relying upon Basha (supra) of single Judge expression, though correct in other respects, so far as in holding that if owner (not accused) of the vehicle to seek custody of the vehicle involved in Excise Act or Prohibition Act offence, by showing without his knowledge by the driver or other person to whom he parted with bonafide, committed the offence, can approach the Magistrate having jurisdiction under Cr.P.C, so long as the vehicle not produced before Deputy Commissioner concerned and not initiated confiscation proceedings without referring to the earlier Division Bench expression in Swarupa (supra) is per incurium as the Division Benchy in Swarupa (referring to the expressions of the Apex Court) clearly laid down that there is no such distinction to be drawn whether it is police or Excise Officials who registered the crime and seized the vehicle and once there is specific provision in the Excise Act for the vehicle to be produced before Excise Deputy Commissioner, who shall initiate confiscation proceedings, the Magistrate under Cr.P.C has no jurisdiction to entertain any application for custody either under Section 451 or
452 Cr.P.C. It is also held by the Apex Court in Sudhakara Rao & Sujit Kumar (supra) of the jurisdiction of the officials is exclusive for confiscation with opportunity of notice, hearing and passing of orders therefrom, which are even can be subjected to the statutory right of appeal being the special law to override general law and
(iv) Even from combined reading of Section 14 read with 13(e) of A.P. Prohibition Act by keeping it in juxtaposition to Sections 45, 46 and 46-E of A.P. Excise Act both not exactly in same, materially giving some meaning from the similar provisions (as referred supra) Section 14 mandates to produce the vehicle or other property seized (even it is by the regular police) before the Deputy Commissioner of Excise and the Deputy Commissioner is the exclusive authority to initiate confiscation proceedings by following the procedure to pass orders after notice, opportunity and hearing to confiscate or otherwise dispose off; from like provisions in A.P. Excise Act Sections 45, 46, 46-E in so holding by its referring to Excise offences in Swarupa (supra) either in A.P. Prohibition Act case or in A.P. Excise Act case, the Magistrate under Chapter XXXIV Cr.P.c has no jurisdiction to entertain any application for custody of any of the property-interim or otherwise and it makes no difference even the police or Excise officials in the criminal case produced the property before Magistrate with Form-66 or otherwise instead the mandatory duty to produce before the Excise or Prohibition Deputy Commissioner to initiate proceedings for confiscation or the like.
15) From the above principles, now coming to the case on hand, the crime registered is for the offence under Section 34-E of the A.P. Excise Act and it is the submission though no material before the Court like filing of F.I.R of the crime also registered under I.P.C and the analogy equally applies here even to consider, as the Division bench in P.Swarupa (supra) did not hold that if the I.P.C offences involved in the same crime, Magistrate jurisdiction under Chapter XXXIV Cr.P.C subsists. There is nothing even from Basha (supra) of the said Division Bench expression of P.Swarupa (supra) brought to its notice muchless referred equally before Shaik Ghani (supra) in approving the Basha (supra) by the Division Bench. Having regard to the same, it clearly indicates that it is immaterial whether the vehicle is in police custody or produced before the Excise/Prohibition officials for initiating the confiscation proceedings under Sections 45 and 46-E of Excise Act or under Sections 14 and 13-E of Prohibition Act as Section 14 of the Prohibition Act specifically say duty of the police official who seized the vehicle also to produce before the Deputy Commissioner of Excise for initiating the proceedings for confiscation. Once, that is mandatory as also held in Basha and Ghani (supra) but for in slipping the conclusion if the owner without knowledge of the vehicle involved in the crime from his bonafide entrustment of any bonafide purpose to its driver or other person, if the vehicle is not produced before the Excise officials got jurisdiction to approach the Magistrate for interim custody under Section 457 Cr.P.C or 451 Cr.P.C. Here that conclusion in Basha adopted in Ghani (supra) is running contrary to the conclusion in P.Swarupa (supra) and without any reference to it even as in P.Swarupa in dealing with excise offence categorically held that the vehicle must be produced before the Deputy Commissioner concerned who alone competent to deal with confiscation and custody including to order for interim custody or the like and the criminal courts jurisdiction under Chapter XXXIV Cr.P.C is barred. As discussed supra, the A.P. Prohibition Act when contained similar provisions under Section 13-E and 14 even before production of the vehicle for initiation of confiscation proceedings by the Deputy Commissioner the regular Magistrate has no jurisdiction, that what not considered in Basha (supra) whereas specifically considered in Swarupa (supra) earlier by the bench in an Excise offence vehicle involved by referring to Sections 45, 46 and 46-E of the Act and thereby that Swarupa case findings in this regard are binding on the Court to say, apart from the present facts, accused himself involved in the crime as A-1 being the owner of the vehicle seized while he was driving as per the panchanama involved in the Excise offence, irrespective that even with any bonafide claim of the abstanti owner in saying the vehicle entrusted bonafide, without his knowledge the offence committed by the entrustee or its driver in the use of the vehicle, he cannot claim interim custody under Chapter XXXIV Cr.P.C as it is exclusive jurisdiction as laid down in P.Swarupa (supra) of the Deputy Commissioner concerned as he alone got jurisdiction to initiate the confiscation proceedings and deal with custody and disposal of the same.
16) Having regard to the above, though Swarupa (supra) was not referred and all these aspects were not considered by the learned Magistrate and even the vehicle is not produced before the Excise officials and even for arguments sake, no confiscation proceedings initiated and even for arguments sake with Form No.66 there is intimation about the vehicle with police or other officials of its seizure for production before the Magistrate, the Magistrate has no jurisdiction under Section 457 or 451 Cr.P.C under Chapter XXXIV Cr.P.C, but for the Deputy Commissioner concerned of the Excise or Prohibition Act in such offences.
POINT No.ii:
17) In the result, the revision is dismissed holding that the impugned order by dismissing the petition for interim custody of the vehicle for want of jurisdiction dt.14.05.2014 passed by the learned Magistrate in Crl.M.P.No.1235 of 2014 in Crime No.275/2014 of Khanapuam Haveli Police Station no way requires interference by sitting against. Consequently the miscellaneous petitions pending, if any, shall stand closed. It is needless to say the remedy of the Petitioner is to approach the Deputy Commissioner concerned for any constitutional remedy.
_________________________ Dr. B. SIVA SANKARA R?O, J Date: -08-2014