Andhra Pradesh High Court - Amravati
V.Harinath Reddy, vs State Of Andhra Pradesh on 17 November, 2020
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
WRIT PETITION No.21388 of 2020
ORDER :
This Writ Petition is filed by the petitioner questioning the direction issued by 2nd respondent/Superintendent of Police, Kurnool, vide proceedings dated 02.11.2020, directing the petitioner to produce Fixed Deposit Receipt (FDR) for Rs.1,75,000/- for release of his vehicle i.e., Ashok Leyland Lorry bearing registration No.AP 28 T 7835.
The petitioner claims to be the owner of Ashok Leyland Lorry bearing registration No.AP 28 T 7835. The 3rd respondent seized the subject vehicle on the ground that there are 6 liquor bottles i.e., 4 Royal Stag Full Bottles and 2 Mansion House Full Bottles in the subject vehicle and registered a Crime No.206 of 2020 for the offence under Section 34(A) of the Andhra Pradesh Excise Act. He submits that as per G.O.Ms.No.411 issued by the 1st respondent one person may have possession of 3 bottles of IMFL. In fact his driver and cleaner possess 3 bottles each in their possession. Hence, the petitioner filed Writ Petition No.16619 of 2020 to release the vehicle and the same was disposed of by an order dated 08.10.2020 to submit a representation to the Deputy Commissioner of Excise, Kurnool. Thereafter, he approached the Deputy Commissioner of Excise, Kurnool and filed a representation to release the vehicle. Pursuant to the representation of the 2 petitioner for interim release of the vehicle, 2nd respondent passed the impugned order dated 02.11.2020 imposing condition to furnish FDR to an amount equal to the amount given in the value certificate of Motor Vehicle Inspector. Challenging the same, the present Writ Petition is filed.
Learned counsel for the petitioner contends that insisting the petitioner to deposit the said amount is an arbitrary exercise of power which virtually amounts to denial of relief i.e., return of the vehicle for interim custody during the pendency of the criminal proceedings.
Learned Government Pleader for Prohibition and Excise contends that the Superintendent of Police is competent to issue direction; the respondents have got power to confiscate the property to the State but there is no power to grant interim custody of the vehicle; and if the interim custody of the vehicle is given to the petitioner without insisting security, there is no possibility of producing the vehicle in future and realizing the amount to the State.
There is no dispute so far as registration of Crime No.206 of 2020 for the offence punishable under Section 34(A) of the Andhra Pradesh Excise Act. On a bare look at the provisions of the Prohibition and Excise Act, no power appears to have been given for grant of interim custody of the vehicle.
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Dealing with a similar issue, this Court in W.P.No.14783 of 2020, dated 08.09.2020, held as follows.
"No doubt, it appears to be an onerous condition, but when such power is conferred on the third respondent to order confiscation of the vehicle after termination of the criminal proceedings, if for any reason, the vehicle is not produced, the ultimate loser is the State and this power conferred on the third respondent will remain only on the statute book which cannot be enforced effectively by the third respondent conferment of such power by provisions will become redundant or otiose. In those circumstances, the third respondent may insist security for production of the vehicle after termination of the criminal proceedings against the accused, if the Trial Court found them guilty for the offences, so as to enable the third respondent to order confiscation of the property to the State. Therefore, insisting security for grant of interim custody of the vehicle or release of the vehicle as interim custody during pendency of the investigation or calendar case before the competent court is not an illegality. On the other hand, it is only to protect the interest of the State. Hence, I find that insistence of security from the petitioner is not an illegality.
Condition No.6 imposed to deposit FDR worth Rs.13,00,000/- appears to be unjust and unreasonable, since it is difficult to furnish the security amid Covid-19 by a small transport operator. Therefore, to meet the ends of justice, Condition No.6 imposed by the third respondent is modified as follows:
"The petitioner shall furnish immovable property security by executing a bond in favour of the third respondent/Superintendent of Police, Kurnool or for the value of the vehicle, as estimated by the Motor Vehicle Inspector, Nandyal."
The third respondent is directed to get the vehicle valued by Motor Vehicle Inspector, Nandyal in the presence of the petitioner after serving a notice to the petitioner and on fixing value of the vehicle by the Motor Vehicle Inspector, the petitioner is directed to furnish immovable property security by executing a bond in favour of the third respondent, strictly adhering to the Stamp and Registration laws, as per the value fixed by the Motor Vehicle Inspector and on production of such immovable property as security, the third respondent/Superintendent of Police, Kurnool is directed to release vehicle No.AP 21 TZ 8829 as interim custody.
With the above direction, writ petition is disposed of. No costs."
Coming to the present case, the petitioner is willing to furnish immovable property security by executing a bond by adhering to the Stamps and Registration Laws, as per the value fixed by the Motor Vehicle Inspector. 4
In view of the same and following the above mentioned judgment, the 2nd respondent is directed to get the vehicle valued by the concerned Motor Vehicle Inspector in the presence of the petitioner after serving notice on him and the petitioner is directed to furnish the immovable property security by executing a bond in favour of the 2nd respondent strictly adhering to the Stamps and Registration Laws, as per the value fixed by the Motor Vehicle Inspector and on production of such immovable property as security, the 4th respondent is directed to grant the vehicle i.e., Ashok Leyland Lorry bearing registration No.AP 28 T 7835 as interim custody.
With the above observation, the Writ Petition is disposed of. There shall be no order as to costs.
As a sequel thereto, the miscellaneous applications, if any, pending in this Writ Petition shall stand closed.
_________________________________ KONGARA VIJAYA LAKSHMI, J Date:17.11.2020 Note:
Furnish C.C. by 20.11.2020 B/o GR