Andhra Pradesh High Court - Amravati
Kuppili Durgamba vs The State Of Andhra Pradesh on 28 July, 2020
Author: M. Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.10506 of 2020
ORDER:
This Writ Petition, under Article 226 of Constitution of India, is filed to issue a writ of Mandamus declaring the action of the third respondent in putting seal to the premises bearing D.No.1-3/18-36, Gupta Centre, Vidhyadharapuram, Vijayawada and consequently direct the third respondent to hand over vacant possession of the premises to the petitioner by removing the seized stock involved in Cr.No.573/2019 of Bhavanipuram Police Station, Vijayawada.
2. Petitioner, who is the owner of the subject premises, let out the said premises bearing D.No.1-3/18-36, Gupta Centre, Vidhyadharapuram, Vijayawada to one Janga Madhusudhana Reddy for non-residential purpose i.e. to run business under the name and style 'Srihari Traders' on 19.11.2015.
3. While the matter stood thus, the third respondent, on 05.09.2019, locked the premises and seized the same on the pretext that Black Jaggery is being stocked in the building which is prohibited. Hence, the seizure of the premises, exercising the power under Section 102 Cr.P.C., is illegal, arbitrary and requested to issue a direction as stated above. 1
4. During hearing, learned counsel for the petitioner reiterated the contentions urged in the petition whereas the learned Public Prosecutor for the State submitted that the seizure of the premises and keeping lock and key to the premises is only due to stocking of Black Jaggery which is prohibited. However, he fairly conceded that seizure of the premises, exercising the power under Section 102 Cr.P.C., is contrary to the law laid down by the Hon'ble Apex Court in Nevada Properties Private Limited v. State of Maharashtra and another (Crl.A.No.1481 of 2011).
5. As seen from the material available on record, petitioner is the owner of the premises and the said premises was let out to Janga Madhusudhana Reddy. A copy of the sale deed, dated 16.07.1968, in the name of the petitioner's husband, is placed on record, which shows that the petitioner's husband was the owner of the said premises and petitioner also produced the property tax receipt, enclosing lease deed, dated 19.11.2015, to prove the tenancy between the petitioner and the said Madhusudhana Reddy. Thus, the person, who allegedly committed the said offence, is the tenant in occupation of the premises and the petitioner's property cannot made liable.
6. In any view of the matter, when a case is registered in 2 Cr.No.573 of 2019 on the file of Bhavanipuram Police Station for the offence punishable under Section 13 (1) (f) and Section 3 of the Excise Act, 1968, the property used for stocking the said items cannot be seized under the mediator's report.
7. It is evident from the material on record that the police, by exercising the powers under Section 102 Cr.P.C., kept the premises under lock and key and seized the same.
8. Section 102 of the Code of Criminal Procedure, 1973 deals with the power of a Police Officer to seize certain property. Any Police Officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such Police Officer, if subordinate to the office of the in- charge of the Police Station, shall forthwith report the seizure to that officer. Every Police Officer, acting under sub-Section (1) of Section 102 Cr.P.C., shall forthwith report the seizure to the Magistrate having jurisdiction. Thus police are empowered to seize certain property alleged or suspected to be stolen or with which an offence was committed but here house was let out for non-residential purpose to the said Madhusudhana Reddy and not for committing any other unlawful activities. In these circumstances, seizure of the non-residential building for the 3 alleged stocking of Black Jaggery is impermissible under law in view of the law laid down in Nevada's case (referred to supra), wherein a Full Bench of the Hon'ble Apex Court, while answering the reference made to it, held that the power of a Police Officer under Section 102 (1) Cr.P.C. to seize any property which may be found under the circumstances that create suspicion of an offence would not include the power to attach, seize and seal any immovable property. Here the property is an immovable property i.e. house property seized by the respondents by exercising power under Section 102 Cr.P.C. Therefore, the seizure itself is illegal in view of the law laid down by the Full Bench of the Hon'ble Apex Court (referred to supra). Consequently, the same is liable to be set aside.
9. In view of my aforementioned discussion and applying the law laid down in Nevada's case (referred to supra) to the present facts and circumstances of the case, the action of the respondents is declared as illegal and consequently respondents are directed to remove the seized stock in Cr.No.573 of 2019 of Bhavanipuram, Vijayawada from the schedule premises by unlocking the seal within a period of one week from today.
10. With the above direction, the Writ Petition is disposed of, at 4 the stage of admission, with the consent of both the parties.
11. Consequently, miscellaneous petitions, pending if any, shall stand closed.
___________________________________ M. SATYANARAYANA MURTHY, J 28th July, 2020 Tsy 5