Andhra Pradesh High Court - Amravati
Smt. Reddy Lakshmi Prasanna vs The State Of Andhra Pradesh on 12 February, 2021
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION Nos.20708 of 2020 & 22283 of 2020
COMMON ORDER:
As the issues involved in both the writ petitions are one and the same and hence they are disposed of with a common order.
1. Brief facts in W.P.No.20708 of 2020 are as follows:
The writ petition is under Article 226 of the Constitution of India seeking to call for the records relating to and in connection with the orders passed by the 3rd respondent in Cr.No.382/2020/SEB/C3, dated 05.10.2020 in confirming the orders passed by the 4th respondent vide proceedings in Rc.No.B3/1714/2020, dated 14.8.2020 in confiscating the petitioner's vehicle i.e. Mahindra TUV Car bearing registration no.AP 05 EU 3333 and quash the same by duly directing the respondents to release the vehicle in favour of the petitioner.
2. The petitioner is the registered owner of the vehicle Mahindra TUV Car bearing no.AP 05 EU 3333. Basing on the case of the 5th respondent that on 29.3.2020 at about 5.30 pm, the Sub Inspector of Police, Anaparthi Police Station and staff during information detected a case and the accused on enquiry revealed that he was following as escort in the Mahindra TUV Car AP 05 EU 3333 to the S Cross Smart Hybrid Car AP 39 ED 2222 which was transporting 29 quarter bottles of IM liquor and 12 beer bottles of duty paid liquor. Basing on the same a case in Cr.No.87/2020 u/S.188 IPC, Sec.34(a), 50 of A.P.Excise Act, 1968 was registered. Thereafter proposals were submitted to the 4th respondent herein for confiscation of vehicle i.e. Mahindra TUV Car bearing registration no.AP 05 EU 3333 which alleged to have been involved in commission of the said offence. 4th respondent basing on the submissions and relying on the records placed by the 5th respondent, passed confiscation orders of the vehicle and liquor bottles, on 2 14.8.2020. The petitioner filed appeal under Section 46 (c) of A.P.Excise Act 1968 before the 3rd respondent assailing the said confiscation orders. The main ground urged by the petitioner is that the vehicle was not involved in any offence and nothing was seized in the vehicle and also from the driver of the vehicle and further stated that the 5th respondent seized the vehicle on the mere impression that the vehicle was escorting the other vehicle. Without considering the ground raised by the petitioner, the respondent has dismissed the appeal on 05.10.2020 by confirming the orders of the 4th respondent. Questioning the same, the present writ petition is filed.
3. The respondents have filed counter. As per the averments of the counter that on 29.3.2020 at about 5pm, the 5th respondent received information from the village volunteers of Kuthukuluru Village that they have found a car which is carrying huge quantity of liquor bottles and upon that the 5th respondent has rushed to the scene of offence and found 41 liquor bottles in a car i.e. Maruthi made S-Cross Smart Hybrid Delta bearing registration no.AP 31 ZC T/R 9378 and on enquiry it is confessed by A1 and A2 who are in the car that they have purchased said liquor from a retail shop run by APBCL with active help of A3 who is the Excise Inspector. A3 has misused his official power and opened the closed shop and handed over the said liquor to the A1 and A2 and further he escorted the vehicle which is transporting the liquor in his car bearing registration no.AP 05 EU 3333. Hence registered a crime in FIR No.87 of 2020 u/S.188 of IPC and section 34(a) & 50 of A.P.Excise Act 1968. On the intervening night of 29/30.3.2020 at 01.00 hrs, arrested the A1 & A2 and also A3 who is the husband of the petitioner herein and who was the jurisdictional P & E Inspector, Rayavaram Excise police station and seized the car bearing registration no.AP 05 EU 3333 which is used for commission of the offence as the accused A3 and A4 escorted another 3 crime vehicle i.e. AP 31 ZC T/R 9378 which is transporting the liquor bottles illegally.
4. Brief facts in W.P.No.22283 of 2020 are as follows:
The writ petition is filed under Article 226 of the Constitution of India seeking to declare the proceedings of the 3rd respondent issued in C.No.105/Vehicle/SEB, dated 23.9.2020 and the action of the 4th respondent in seizing the Bolero vehicle No.AP 35 TV 0503 as illegal, arbitrary and consequently direct the 3rd and 4th respondents to release the Bolero vehicle.
5. The petitioner is the owner of the Bolero vehicle bearing registration no.AP 35 TV 0503 and the said vehicle was given on hire to the Excise Department on 15.6.2020 and an agreement was entered between the petitioner and the 5th respondent herein. As per the terms of the lease, it is valid for a period of eleven (11) months and the lease amount has to be paid in the bank account and the salary of the driver should be paid by the Excise Department and the vehicle is being used by the Excise Department.
6. While that being so, the 3rd respondent issued a notice in C.No.105/vehicle/SEB, dated 23.9.2020 in exercise of the powers u/S.41(1)(a) and 38(a) of the A.P. Prohibition Act stating that on 09.7.2020 at about 6.00 pm at near Lingamgudem police check post in Lingamgudem Village, Chintalapudi Mandal, the Sub Inspector of Police, Chintalapudi Police station seized two vehicles i.e. Swift Dzire car bearing registration no.AP 37 DE 2069 and Bolero vehicle bearing registration no.AP 35 TV 0503 and certain quantity of liquor and a case was registered in Cr.No.456/2020 u/S.34(a) of the A.P.Excise Act. The 3rd respondent after perusal of the documents, issued show cause notice as to why the vehicle should not be confiscated within a period of 15 days from the date of receipt of the notice. On receipt of the said notice, the 4 petitioner has submitted a detailed explanation on 13.10.2020 by post explaining that the vehicle was given on hire to the Excise Department and further stated that as per the contents of the complaint and mediators report, it is clear that the liquor was not seized from the vehicle and hence the provisions of section 34(a) of A.P.Excise Act has no application and hence notice issued under section 46(1) of the Act is illegal and without jurisdiction. The 3rd respondent has issued notice u/S.34(a) of the Act and in the body of the show cause notice it is alleged that the property was involved in violation of the provisions of the A.P.Excise (Amendment) At 2020 and section 46(1) of the A.P.Excise Act. Section 13(1) of the A.P.Prohibition Act empowers the 3rd respondent for confiscation of the vehicle for offence committed under the Act. But here they have not committed any offence either under the provisions of Prohibition & Excise Act or under the A.P.Excise Act. Hence the 3rd respondent has no power to initiate the proceedings for confiscation of the vehicle. Once the provisions of the said Act are not attracted, the 3rd respondent has no power or jurisdiction to proceed further with confiscation proceedings.
7. The respondents have filed counter and stated that the writ petition is not maintainable because the writ petition is filed against the show cause notice. Hence requested to dismiss the same.
8. Heard Sri Saleem and Sri O.Manohar Reddy, learned Counsel for the petitioners and learned Government Pleader for P & E in both the writ petitions.
9. It is not in dispute that in both the writ petitions the vehicles were seized by the respondents on the ground that the vehicles are escorted the vehicles which are transporting the liquor contrary to the provisions of the Excise Act and either the drivers of the vehicle or the vehicles of the petitioners are involved and not used in transportation of the liquor. 5 It is only the vehicles were seized and invoked the provisions under section 46(1) of A.P.Excise Act on the ground that the vehicles are escorted the other vehicles. Learned Counsel appearing for the petitioners has mainly relied on section 34(a) and section 45 of A.P.Excise Act which are extracted below.
Section 34(a) of A.P.Excise Act
34. Penalties for illegal import etc. - Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,-
(a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or Section 45 of A.P.Excise Act which is extracted below.
45. Liability of certain things to confiscation. - Whenever any offence has been committed, which is punishable under this Act, following things shall be liable to confiscation namely :-
(1) any intoxicant, materials, still, utensil, implements or apparatus in respect of or by means of which such offence has been committed; (2) any intoxicant lawfully imported, transported, or manufactured, had in possession, sold or bought along with, or in addition to, any intoxicant liable to confiscation under clause (1); and (3) any receptacle, package, or covering in which anything liable to confiscation under clause (1) or clause (2) is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, vessel, raft or other conveyance used for carrying the same.
Bare reading of Section 34 of the Act it clears that the intoxicant involved in the offence if they imports, exports, transports, manufactures, collects or possess or sells any intoxicant. But in the instant case, the petitioners are not involved in any imports or exports or transportation of the intoxicant. Section 45 deals with liability of certain things to confiscation. A plain reading of the sub section 3 of section 45 is made clear that if anything is found, the confiscation can be done as per clauses 1 and 2 of section 45. If any materials found in the vehicle which is the intoxicant is liable for seizure. For section 34(a) r/w section 45 (1 to 3) makes it clear that if anything is found in the vehicles in transporting the same can be charged under section 34 and the same 6 could be confiscated under section 45. If any seizure of the vehicle, the material must be found in the vehicle at the time of seizure and in the present case, nothing is found admittedly in the vehicle of the petitioner at the time of seizure. When no incriminating material is found in a vehicle at the time of search by the officials, vehicle is not liable for seizure or confiscation u/S. 45 of the Act. By the use of words 'is found' in clause 3 of section 45 that for a vehicle being confiscated for carrying a contraband must be found in the vehicle at the time of seizure and that contraband must be seized from the said vehicle. When no material is found in transporting or collecting the liquor, the petitioners' vehicles are not liable for seizure or confiscation under section 45 of the Act. Section 45 of the Act is a penal provision. It has to be construed strictly and benefit should be given to the persons.
10. It is clear that the vehicle which is used for carrying the contraband can be seized or confiscated and in the instant case, the petitioners vehicles were not actually been used for committing the offence. Hence section 34 (a) and 45 cannot be invoked against the petitioners.
11. In view of the above, the impugned orders passed by the 3rd respondent in Cr.No.382/2020/SEB/C3, dated 05.10.2020 in confirming the orders passed by the 4th respondent vide proceedings in Rc.No.B3/1714/2020 dated 14.8.2020 in W.P.No.20708 of 2020 and the proceedings of the 3rd respondent issued in C.No.105/Vehicle/SEB, dated 23.9.2020 in W.P.No.22283 of 2020 are set aside directing the respondents to release the vehicles to the petitioners forthwith. Accordingly, both the writ petitions were allowed.
As a sequel thereto, the miscellaneous petitions, if any, pending in both the Writ Petitions shall stand closed.
________________ JUSTICE D. RAMESH Date:12.02.2021 RD 7 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION Nos.20708 of 2020 & 22283 of 2020 Dated 12.02.2021 RD