Andhra Pradesh High Court - Amravati
Botta Sujatha, vs The State Of Andhra Pradesh on 11 November, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.21071 of 2020
ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed by the petitioners seeking the following reliefs:
"...to issue an order, direction or writ, more particularly one in the nature of Writ of Mandamus declaring the action of respondent No.2 in passing the impugned order in C.C.No.94/2020/CSR-5, dated 27.10.2020 imposing onerous condition of directing the petitioner to furnish bank guarantee of Rs.1,50,000/- for releasing the petitioner's vehicle Mahindra Bolero Pick Up Van bearing Registration No. AP 31 TE 1028 as illegal, eccentric, arbitrary, contrary to the provisions of Essential Commodities Act and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India and consequently direct the 3rd respondent to release the said vehicle by modifying the onerous condition and pass such other order...."
2. Case of the petitioner is that she is the registered owner of Mahindra Bolero Pick Up Van bearing Registration No.AP 31 TE 1028. On 05.10.2020 while certain goods were being transported in the vehicle of petitioner, the 3rd respondent along with their staff purportedly exercising the powers vested under the A.P. Public Distribution System Control Order, 2018 stopped the vehicle on the suspicion that PDS rice is being transported and seized the same by drawing an occurrence list. In pursuant to the mediators' report, the Sabbavaram police registered a crime in FIR No.749/2020, dated 05.10.2020 under Section 420 IPC and 7(1) of the Essential Commodities Act and seized the vehicle. The petitioner made an application on 08.10.2020 before the 2 MSM,J W.P.No.21071 of 2020 2nd respondent for release of the said vehicle on terms in the impugned order imposing the onerous condition of furnishing a bank guarantee for Rs.1,50,000/-. The petitioner requested the 2nd respondent to accept personal bond or a third party security instead of the bank guarantee, but the same was not considered.
3. It is contended that vide impugned order, the police are asking to produce the F.D.R. for a sum of Rs.1,50,000/-. The petitioner submits that without her knowledge and consent, the accused have taken the aforesaid vehicle and thereby, implicated the said vehicle in the crime. She is ready to produce sufficient sureties or Solvency Certificate as collateral security instead of F.D.R. Hence, she filed this writ petition.
4. During hearing, learned counsel for the petitioner contended that imposing such condition to deposit F.D.R worth Rs.1,50,000/- is penal in nature and that too, the petitioner is not an accused in the crime and hence, insisting to deposit F.D.R. for Rs.1,50,000/- is an arbitrary exercise of power by the Joint Collector, Civil Supplies, Visakhapatnam and such arbitrary exercise virtually amounts to denial of relief i.e., return of the vehicle during pendency of the criminal proceedings. Hence, requested to issue a direction to the 2nd respondent to release the vehicle as interim custody by setting aside the condition referred above.
5. Learned Government Pleader for Civil Supplies contended that the Superintendent of Police, Visakhapatnam is the competent officer to issue direction, as the Superintendent of Police has got power to confiscate the property to the State either under Excise Act or Prohibition Act. If the interim custody of the vehicle is given to this 3 MSM,J W.P.No.21071 of 2020 petitioner without insisting security for production of the vehicle for ordering confiscation to the State, there is no possibility of producing the vehicle in future and realize the amount to the State and such power would remain as a provision in the Statute without any effective implementation and placed reliance on P.Swarupa vs. State of Andhra Pradesh1 and requested to dismiss the writ petition.
6. There is no dispute regarding registration of crime in FIR No.749/2020, dated 05.10.2020 under Section 420 IPC and 7(1) of the Essential Commodities Act on the file of Sabbavaram Police Station, Visakhapatnam District. The said vehicle and PDS rice were seized during inspection of the vehicle. Further, the vehicle was taken away by the accused without the knowledge and consent of the petitioner.
7. The main contention of the petitioner is that imposing such onerous condition virtually amounts to denial of relief to this petitioner and if for any reason, the case is ended in acquittal after full fledged trial after some time, if the vehicle is allowed to expose to sun and rain, it will become derelict and useless, since the respondent is not taking care of the vehicle for its preservation in good condition, thereby, substantial damage will be caused to this petitioner in case the vehicle is allowed to be in the custody of the respondent and requested to set aside the condition in the impugned order and release the vehicle.
8. Learned Government Pleader for Civil Supplies contended that the Superintendent of Police, Visakhapatnam get the vehicle valued and insist for security for release of the vehicle or granting interim 1 1995 (3) ALD 1090 (DB) 4 MSM,J W.P.No.21071 of 2020 custody of the vehicle under the Essential Commodities Act and the relevant laws. Simply the Joint Collector, Civil Supplies, Visakhapatnam followed the procedure laid down by the Full Bench and Division Bench of this Court and insisted for furnishing security in the notice impugned in the writ petition and it is in accordance with law.
9. On a bare look at the provisions of the Essential Commodities Act, though Deputy Commissioner is competent to order confiscation of the property seized in connection with the cases under the Act after concluding criminal proceedings, no power appears to have been given for grant of interim custody of the vehicle.
10. In a similar situation, the Apex Court in State (NCT of Delhi) v. Narender2 while dealing with the provisions of Delhi Excise Act and Delhi Prohibition Act, held as follows:
".......On production of the seized property, the Deputy Commissioner, if satisfied that the offence under the Act has been committed, may order confiscation of such property. Therefore, under the scheme of the Act any vehicle used for carrying the intoxicant is liable to be confiscated and on seizure of the vehicle transporting the intoxicant, the same is required to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation.
23..........The position is made clear by the non obstinate clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under CrPC has to give way. The 2 Criminal Appeal No.25 Of 2014 dated 06.01.2014 5 MSM,J W.P.No.21071 of 2020 Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.
24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate."
11. The provisions of Delhi Excise Act, 2009 are almost identical to the Essential Commodities Act. If the principle laid down in the above judgment is applied to the present facts of the case, ordering to release the vehicle by the Superintendent of Police is in accordance with law. The petitioner only questioned the condition of the order impugned in this writ petition, since it is an onerous condition.
12. No doubt, it appears to be an onerous condition, but when such power is conferred on the Superintendent of Police 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 Superintendent of Police will remain only on the statute book, which cannot be enforced effectively by the Superintendent of Police, and conferment of such power by provisions will become redundant or 6 MSM,J W.P.No.21071 of 2020 otiose. In those circumstances, the Superintendent of Police may insist security for production of the vehicle after termination of the criminal proceedings against the petitioner, if the trial Court found the accused guilty for the offence so as to enable the Superintendent of Police 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.
13. The condition imposed to deposit FDR worth Rs.1,50,000/- appears to be unjust and unreasonable, since it is difficult to furnish the security amid Covid-19. Therefore, to meet the ends of justice, the condition imposed by the Joint Collector, Civil Supplies, Visakhapatnam is modified as follows:
The petitioner shall furnish immovable property security by executing a bond in favour of the Superintendent of Police or for the value of the vehicle, as estimated by the concerned Motor Vehicle Inspector.
14. The Superintendent of Police, Visakhapatnam is directed to get the vehicle valued by the concerned Motor Vehicle Inspector 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 Superintendent of Police, Visakhapatnam, 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 7 MSM,J W.P.No.21071 of 2020 Superintendent of Police, Visakhapatnam is directed to release the vehicle of the petitioner i.e., Mahindra Bolero Pick Up Van bearing Registration No.AP 31 TE 1028 as interim custody.
15. With the above direction, this Writ Petition is disposed of.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________________________ JUSTICE M.SATYANARAYANA MURTHY Date: 11-11-2020.
IS 8 MSM,J W.P.No.21071 of 2020 THE HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No.21071 of 2020 Date: 11-11-2020 IS