Andhra Pradesh High Court - Amravati
Unknown vs The Honourable Sri Justice Subba Reddy ... on 20 June, 2022
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CRIMINAL PETITION No.3286 OF 2022
ORDER:
Accused Nos.1, 3 and 4 in Crime No.81 of 2022 of Bangarupalem Police Station, Chittoor District, filed this Criminal Petition under Section 438 of Criminal Procedure Code.
2. The case of the prosecution, in brief, is that the accused involved in transporting banned Gutka products and 192 Silver Cup VSOP Indian Brandy from Karnataka, illegally, without valid documents. The incident said to have occurred on 24.04.2022 at 04.00 p.m. at Paleru flyover under bridge on Palamaner to Chittoor NH 69 Road, Bangarupalem Mandal, Chittoor District. The Sub-Inspector of Police, Bangarupalem Police Station arrested A2, A5 and A6 and seized tobacco products along with two boxes of Silver Cup VSOP Indian Brandy of 180 ml., total 96 tetra packets from their custody. As per confession statements of the Accused, A2, A5 and A6, with the active assistance and abatement of A1, A3 and A4, are transporting Karnataka State liquor and tobacco products. In the present incident, they were caught by the Police while they were transporting the said products in Bolero Maxi Truck Plus KA 13 B 8051 and Bolero Pik-Up FBKA 51 AD1716, in carton boxes, accompanied by fake bills. Hence, police registered above crime for the offences punishable under Section 468, 471 & 420 r/w 34 of Indian Penal Code, Section 34(1)(i) r/w 34(a), 11, 42(a) of Andhra Pradesh Excise Act AND Section 24(1) r/w COTP Act.
2
3. Heard learned counsel for the petitioners Sri Raja Reddy Koneti and Sri Soora Venkata Sainath, the learned Special Assistant Public Prosecutor for the respondent-State.
4. Learned counsel for the petitioners would contend that transportation of liquor shall not constitute the offence under Section 34 of Andhra Pradesh Excise Act. He also would contend that confession of the accused cannot be relied upon. The very procedure is contrary to Section 55 of Andhra Pradesh Excise Act. He also would contend that the prosecution did not mention the Serial Numbers of the stocks seized. Hence, he seeks for granting of anticipatory bail.
5. Learned Special Assistant Public Prosecutor while opposing the petition would contend that A2, A5 and A6 are instrumental in transporting liquor and tobacco products, with fake bills, at the instance of A1, A3 and A4 and hence, they are not entitled for anticipatory bail. Hence, prayed to dismiss the petition.
6. I have perused the entire record and given anxious consideration to the material therein and to the contentions of the both the counsel.
7. It is contended by the learned counsel for the petitioners that provisions of Section 34(a) of the Andhra Pradesh Excise Act, 1968 would not apply to the facts of this case. Section 34 (a) of the Andhra Pradesh Excise Act, reads as under:
"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,-3
(a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; ....."
8. In this case on hand, as per the prosecution, A1 is personally transporting the contraband to A3 and A4 through the Drivers with fake bills and hence the contention of the learned counsel for the petitioners that Section 34 of the Andhra Pradesh Excise Act does not apply falls to ground.
9. It is also contended by the learned counsel for the petitioner that seizure of the material the Police is contrary to Section 55 of the Andhra Pradesh Excise Act. The said Section reads as under:
"55. Power to search without warrant. - Whenever the Commissioner or a Collector [or Executive Magistrate] or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,-
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid."
10. From a reading of Section 55 of the Andhra Pradesh Excise Act, it is clear that if the concerned officer believes that an offence under 4 Section 34, 35, 36, 37 and 37-A is likely to be committed and a search warrant cannot be obtained, without giving chance to the offender to escape or conceal the evidence, then he can search and effect seizure by recording the reasons. Mediators Report filed before this Court would indicate that when the officers are conducting vehicle check A2, A5 and A6 are transporting things from Bangalore and when they were intercepted, they initially tried to fled away. Then, they were taken into custody and asked to produce bills of the stock being transported. When they could not produce the bills, the products being transported were seized. Hence, the seizure effected by the Police is as per Section 55 of Andhra Pradesh Excise Act.
11. A perusal of the complaint and the other material placed on record would show A1, A3 and A4 are instrumental in transporting the contraband with fake bills. They are engaging personnel and getting the liquor transporting through them illegally.
12. Considering the facts and circumstances of the case and based on the material available on record, it is clear that A1-M. Anji Babu is transporting tobacco products and Karnataka State liquor by means of fake bills and invoices through A2-R. Naveen, who in turn deputed two Drivers. As per the confession statement made by A2-R. Naveen, he has been transporting the said products to A3 and A4 and while they were in transit, the entire stock was seized.
13. According to the prosecution, investigation is still pending, and they have sent sample liquor for chemical examination. Considering 5 the facts and circumstances this is not a fit case for grant of pre-arrest bail. Hence, the Criminal Petition is dismissed.
14. It is made clear that this order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law and the finding in this order be construed as expression of opinion only for the limited purpose of considering the this Petition in the above crime and shall not have any bearing in any other proceedings.
Miscellaneous applications, pending if any, shall stand closed.
________________________ JUSTICE SUBBA REDDY SATTI 20th June, 2022 GBS