Andhra HC (Pre-Telangana)
Shaik Ghani vs The State Of A.P. on 18 October, 2006
Equivalent citations: 2007CRILJ246
JUDGMENT A. Gopal Reddy, J.
1. A learned single Judge of this Court by his order D/- 12-4-2006 having noticed the conflict that the judgment of this Court in S. Kareemulla and Ors. v. Prohibition and Excise Sub-inspector, Nandyal and Ors. runs contrary to later judgment of this Court in M. Basha v. State of Andhra Pradesh 1997 (2) ALD (Cri) 473 (AP) with regard to release of the vehicle involved in an excise offence by the Magistrate, referred the matter to a Division Bench for an authoritative pronouncement.
2. The facts giving rise to the reference may briefly be stated thus:
The petitioner filed an application in Cri. M. P. No. 453/2001 under Section 451 r/w. 457(1), Cr. P.C., seeking interim custody of the jeep bearing registration No. AP 6174 before the trial Court contending that he was falsely implicated in RR No. 63 of 1998-99 and his jeep was illegally kept in the custody of the respondent without proper maintenance. The learned Magistrate relying upon a judgment of this Court in K. Kareemullah (supra) passed orders D/- 13-2-2001 releasing the vehicle to the petitioner for safe custody on condition that he should furnish a bond for Rs. 50,000/- with two sureties for the like sum each. Aggrieved by the order passed by the learned Magistrate, State preferred a revision petition in Cri. R. P. No. 67/2001 before the I Additional Sessions Judge, Guntur. Learned Sessions Judge by his order D/- 11-10-2002 allowed the revision petition by setting aside the order passed by the learned Magistrate D/-13-2-2001 in Cri. M. P. No. 453/2001. The learned Sessions Judge while allowing the revision petition placed reliance on the judgment of this Court in M. Basha (supra) and held that the impugned order passed by the Magistrate is without jurisdiction and contrary to the provisions of law since the Deputy Commissioner of Prohibition & Excise passed orders confiscating the crime vehicle on 8-1-2001 itself and after which the petitioner had approached the learned Magistrate. The learned Sessions Judge further directed that in case the vehicle had already been handed over to the petitioner, pursuant to the order passed by the Magistrate, it should be produced immediately before the Deputy Commissioner of Prohibition & Excise by the petitioner and failure to do so, necessary action as contemplated in law be taken against him.
3. We heard the learned Counsel for the parties and have also gone through the material on record.
4. In order to fully appreciate the submissions made at the Bar, it is necessary to examine the true purpose of Sections 13-E and 14 of the A. P. Prohibition Act, 1995, with read as under:
13E. Bar of Jurisdiction :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act II of 1974) when the Deputy Commissioner of Prohibition and Excise or the appellate authority is seized with the matter under this Act, no Court shall entertain any application in respect of liquor, any receptacle, package, covering, any animal, cart, vehicle or other conveyance used in carrying such liquor as far as its release, or confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the appellate authority with regard to the disposal of the same shall be exclusive.
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.
5. Section 13(E) of the A. P. Prohibition Act, 1995, is pan materia with Section 46(E) of the A. P. Excise Act, 1968.
6. In S. Kareemulla (supra), a learned single Judge of this Court held as under:
...As a consequence of the discussion supra, this Court hold that the petitioners are entitled to approach the concerned Magistrate within whose jurisdiction the offence is said to have been committed or the vehicle is said to have been seized by making an application under Section 451, Cr. P. C., for release of the vehicle, which will be disposed of in accordance with law. It is also made very clear that in case they fail to get such a remedy, they should exhaust further remedy by way of appeal provided under the Criminal Procedure Code to the superior Courts like the Sessions Court etc. It is also made very clear that having due regard to the interpretation stated above, the petitioners are also entitled to approach the Excise authorities for such a remedy for interim custody of the vehicle, if the Magistrates in Criminal Courts are unable to pass any order for any reason, however the rule shall be to approach the Courts first. However, it is made very clear that they cannot have both the remedies and if they seek for one remedy they will be debarred from seeking another remedy....
7. In M. Basha (supra), this Court after referring to Section 13-E and Section 14 of the A. P. Prohibition Act held as under:
...A combined reading of the above two provisions would go to show that the property seized under the provisions of A. P. Prohibition Act 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 the disposal of the property. It is, however, true that seize-in of the matter by the Deputy Commissioner of Prohibition and Excise is a sine-qua-non for the operation of the above bar. Therefore, it would be open to the owners of the proper-ties to set up want of knowledge of the contravention of the provisions of the above Act by the driver or other persons to whom the vehicles was entrusted for a bona fide 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 Prohibition and Excise....
8. In Oruganti Seshachala Venkateswarlu v. Government of Andhra Pradesh (to which I am a party) after interpreting the provisions of A. P. Excise Act, 1968 and after referring the earlier judgments of this Court in State of A.P. v. P.K. Mahammad 1978(1) ALT 8 (NRC) : 1978 (1) APLJ 391; Mohd. Yaseen v. Forest Range Officer, Rayachoty 1980 (1) ALT 8 (DB) and Supreme Court in Divisional Forest Officer v. G. V. Sudhakar Rao held as under (para 5 of Cri LJ):
In view of the statutory provisions referred to above, it is clear that whenever an excise offence is committed and anything liable for confiscation under Section 45 is seized or detained under the provisions of A. P. Excise Act, the officer seizing or detaining such property shall produce the seized property along with a report before the Deputy Commissioner of Excise who has jurisdiction over the area and who can initiate confiscation proceedings after giving due notice to the parties if he satisfied that an offence has been committed, whether or not a prosecution is instituted for the commission of such an offence. The sections do not debar the police/Excise officials from seizing the vehicle for registering a case and reporting crime to the Magistrate. In view of the express bar contained under Section 46-E and when the property is not produced before the Court in an inquiry or trial, the Magistrate is not empowered under Section 457 of the Code to make such order as he thinks fit, respecting the disposal of the property. The general provision of Section 452 of the Code with regard to disposal of property by a criminal Court such as by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof, and that Section 457 investing a Magistrate to make an order for disposal of property seized by a police officer and not produced before a criminal Court during an inquiry or trial, must necessarily yield where a statute makes a special provision with regard to forfeiture of any property and its disposal.
9. In State of W. B. v. Sujit Kumar Rana , the Supreme Court while considering Section 59-G of the Forest Act as amended by West Bengal Act 22 of 1988, which is identical to Section 13(E) and also various judgments rendered by it, and approving the decision of a Division Bench held that once the confiscation proceeding is initiated, the jurisdiction of the criminal Court in terms of 59-G of the Forest Act being barred and the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property, but the High Court can exercise such a power only in exercise of its power for judicial review and set-aside the order passed by the High Court.
10. In the said decision, the Supreme Court considered the decision rendered by it in Divisional Forest Officer v. G.V. Sudhakar Rao , whereunder the Supreme Court approved the decision of a Division Bench of the Andhra Pradesh High Court in Mohd. Yaseen v. Forest Range Officer (1980) 1 ALT 8 and held as under:
14. We find that a later Division Bench consisting of Kondaiah, C. J. and Punnayya, J. in Mohd. Yaseen v. Forest Range Officer (1980) 1 ALT 8 approved by the view expressed by Jeevan Reddy, J. in P. K. Mohd. Case (1978) 1 APLJ 391 and held that the Act contemplates two procedures, one for confiscation of goods forming the subject-matter of the offence by the authorized officer under Sub-section (2-A) of Section 44 of the Act, and the other for trial of the person accused of the offence so committed under Section 20 or 29 of the Act. The learned Judges held that the Act provides for a special machinery for confiscation of illicitly felled timber or forest produce by the authorized officer under Sub-section (2-A) of Section 44 enacted in the general public interest to suppress the mischief of ruthless exploitation of Government forests by illicit felling and removal of teak and other valuable forest produce. They further held that merely because there was an acquittal of the accused in the trial before the Magistrate due to paucity of evidence or otherwise did not necessarily entail in nullifying the order of confiscation of the seized timber or forest produce by the authorized officer under Sub-section (2-A) of Section 44 of the Act based on his satisfaction that a forest offence had been committed in respect thereof. We affirm the view expressed by Jeewan Reddy, J. in P. K. Mohd. Case (1978) 1 APLJ 391 and by Kondaiah, C. J. and Punnayya, J. in Mohd. Yaseen case (1980) 1 ALT 8.
11. This Court in S. Kareemulla (supra) has not noticed the amendment brought to A. P. Prohibition Act No. 35/95 with effect from 12-10-1995 adding Sections 13-A to 13-F, though judgment was delivered on 1 -11-1995. Section 13-E starts with non-obstante clause will have the effect of overriding the provisions of law or of the law in which the said clause is inserted. Normally, a non-obstante clause is always expressed in a negative form, that is to say, by using the words "notwithstanding anything contained" or "anything contained in a previous law shall not affect the provisions of a particular act" and so on. In the instant case, in Section 13-E, it is clearly mentioned that "notwithstanding anything contained in the Code of Criminal Procedure, 1973 when the Deputy Commissioner of Prohibition and Excise or the appellate authority is seized with the matter under the Act, no Court shall entertain any application in respect of release of vehicle or other conveyance used in carrying such liquor as far as its release or confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the appellate authority with regard to disposal of the same is exclusive."
12. Accordingly, we hold that the view expressed by this Court in S. Kareemullah (supra) is not a good law and it was rendered without noticing the statutory provisions added at Act 35 of 1995 and the same is per incuriam. We, further hold that the view expressed by this Court in M. Basha (supra) is in confirmity with the law declared by this Court and the Supreme Court that the criminal courts will not have jurisdiction to release the vehicle for interim custody when the matter is seized by the confiscating authority.
13. Learned Counsel for the petitioner further submitted that in the criminal proceedings initiated against him before the Magistrate, he was acquitted of the offence with which he stood charged but the Magistrate directed for confiscation of the articles seized including vehicle.
14. In view of the submission made by the learned Counsel, while answering the reference, we dismiss the criminal petition as having become infructuous.