Andhra HC (Pre-Telangana)
Banavathu Babu vs Government Of A.P. Rep. By Its Principal ... on 24 April, 2014
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
Writ Petition No.12396 of 2014
24-04-2014
Banavathu Babu .. Petitioner
Government of A.P. rep. by its Principal Secretary, Revenue (Excise)
Department,Secretariat, Hyderabad and others.. Respondents
Counsel for petitioner: Sri Ramidi Satyanarayana
Counsel for respondents : The Government Pleader
for Prohibition & Excise
<GIST:
>HEAD NOTE:
?CASES REFERRED : ----
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION No. 12396 OF 2014
O R D E R:
The petitioner seeks a Writ of Mandamus to declare the action of respondent No.2, the Deputy Commissioner of Prohibition & Excise, Khammam, in not releasing an auto bearing registration No.AP 24TB 3806, inspite of the orders passed by the learned Special Judicial Magistrate of First Class (Prohibition & Excise Cases) at Khammam on 03.04.2014, as illegal.
The petitioner has claimed ownership of a motor vehicle, auto bearing registration No.AP 24TB 3806. On 07.02.2014, the said vehicle was engaged for transportation of black jaggery and alum, on payment of hire charges. When the vehicle reached Rajeswarapuram Village, the Station House Officer, Prohibition & Excise Station, Nelakondapalli, Khammam District, 3rd respondent, has intercepted the vehicle and searched the same. They found 9 gunny bags loaded with black jaggery of 50 kgs. each and alum and also a plastic can containing certain liquid. It is suspected by the 3rd respondent that the liquid in the plastic can is illicitly distilled liquor. Since an offence under the A.P. Excise Act, 1968 (for short the Act) has been committed, the motor vehicle together with the material transported by it, is seized on 07.02.2014. The vehicle is now retained at the Prohibition & Excise Station, Nelakondapalli. In those set of circumstances, the petitioner has approached the Special Judicial Magistrate of First Class (Prohibition & Excise Cases) at Khammam and moved Crl.M.P.No.535 of 2014 and that Court passed an order on 03.04.2014 directing that the motor vehicle may be given interim custody. No conditions have been stipulated by the learned Magistrate in that regard.
The grievance of the petitioner is that inspite of producing the Official Memo dated 03.04.2014 issued by the Court of the Special Judicial Magistrate of First Class (Prohibition & Excise Cases) at Khammam, the Deputy Commissioner of Prohibition & Excise, Khammam, 2nd respondent, is declining to entrust the interim custody of the motor vehicle, on the precious plea that the said Court has no jurisdiction.
Sri Ramidi Satyanarayana, learned counsel for the petitioner, would point out that as per Section 457 of the Code of Criminal Procedure, whenever the seizure of property by any Police Officer is reported to a Magistrate, the Magistrate may make such order as he thinks fit, respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof. Therefore, it is contended that the learned Special Magistrate for Excises cases at Khammam is entitled to pass an appropriate order in the matter.
It is also contended by the learned counsel that unless the provisions contained under Section 45 of the Act are attracted, the question of initiation of confiscation proceedings under Section 46 of the Act by the 2nd respondent would not arise.
Per contra, learned Government Pleader for Prohibition & Excise would submit that apart from the black jaggery and alum, which are the basic components, which will be used for brewing illicit liquor, the motor vehicle of the petitioner is also found transporting a plastic can containing certain liquid, which, upon examination, smells like illicitly brewed liquor. Therefore, the provisions contained under Sub-Section 1 of Section 45 of the Act read with Section 13 of the A.P. Prohibition Act, 1995 are attracted. Unless further investigation is carried into the crime and enquiry is also conducted thereafter, the confiscation proceedings under Section 46 of the Act cannot be finalised. Therefore, the learned Government Pleader would submit that it is not an appropriate case where the motor vehicle can be released. Dealing with the question of not complying with the orders passed by the learned Special Magistrate for Excise cases at Khammam, the learned Government Pleader would point out that Section 46 of the Act is a special piece of legislation, whereas the Code of Criminal Procedure is liable to be treated as a general one, in this regard. The special provisions always prevail over the general provisions and, accordingly, it is the 2nd respondent, who is the competent authority to deal with the confiscation proceedings. Further, Section 12 of the A.P. Prohibition Act, 1995 declares that in any case in which an offence is committed, any vehicle used to hold or carry any liquor also becomes liable for confiscation. When once a statute has conferred power of confiscation of any property including a motor vehicle upon the 2nd respondent, it is that provision, which must prevail, and not Section 457 of the Code of Criminal Procedure. This apart, the learned Government Pleader would also urge that entrustment of interim custody of any property including a motor vehicle is an incidental power springing from the authority to confiscate such a property. Therefore, it is only the Deputy Commissioner of Prohibition & Excise concerned, who should be approached by an applicant for release of any of the property seized in connection with any prohibition & Excise cases, but not the Code of Criminal Procedure.
There is considerable amount of force in the submission made by the learned Government Pleader. It is appropriate to note that the A.P. Excise Act and A.P. Prohibition Act are special legislations. When a special piece of legislation confers power of confiscation and confers power upon a particular authority to deal with such property and further when that provision sets out that notwithstanding anything contained for the time being in force in any other law, the intention of the statute maker becomes explicitly clear. The power available to a Magistrate under Section 457 of the Code of Criminal Procedure shall be construed to have been taken away and corresponding power is conferred upon the notified agency by the statute maker. Section 46 of the Act specifically dealt with the issues relating to confiscation of properties, which are seized in connection with the offences committed under the Act. Therefore, it is the Deputy Commissioner of Prohibition & Excise concerned, who has the exclusive authority and power to deal with all the aspects relating to confiscation of the property seized in relation to prohibition and excise offences.
However, the petitioner has claimed ownership of the vehicle, which is an auto used for transportation of goods for hire. It is stated that he makes a living by running it for hire. Therefore, pending detailed examination and investigation and then initiation of confiscation proceedings, if the motor vehicle is not put to use, it is more likely that it will get rusted and will become useless later on, and its value will get rapidly deteriorated, if it is kept out of use and if rusting takes place, particularly, the modern motor vehicles, which are fitted with electronic components and parts, they need regular usage, failing which, they get jammed, because of the fine dust particles and other adverse material gathering thereupon. Therefore, it will be in the best interest of the State to get any such motor vehicle valued by the Motor Vehicle Inspector, and thereafter, entrust the interim custody thereof to the person, who claimed ownership, so long as credible proof of identity is produced and so long as copy of registration certificate of the motor vehicle is retained, the Deputy Commissioner of Prohibition & Excise would always be in a position to trace out the said vehicle even at a later point of time.
Therefore, the balance of convenience would invariably lie in favour of the owner of the motor vehicle being entrusted with the interim custody, subject to the owner producing copy of the registration certificate, copy of the driving licence of the driver of the vehicle, the identity proof of the owner and also of the driver and also obtaining an undertaking from the owner that the vehicle will be kept insured at all times, and that he will also keep it in a good running condition by attending to its periodical upkeep and maintenance, and also upon depositing a reasonable amount in the form of fixed deposit receipt drawn on any nationalized bank payable at par to the Deputy Commissioner of Prohibition & Excise concerned. This would also help in decongesting the Prohibition & Excise Stations as well as the Court premises.
Therefore, if the petitioner approaches the Deputy Commissioner of Prohibition & Excise, Khammam, producing before him an FDR drawn in a sum of Rs.10,000/- (Rupees Ten thousand only) payable to the Deputy Commissioner of Prohibition & Excise or his order, and also upon satisfying the rest of the conditions referred to supra, the Deputy Commissioner of Prohibition & Excise will consider releasing of the vehicle, as expeditiously as possible, at any rate, within a maximum period of of ten (10) days from the date of receipt of the application.
With this, the Writ Petition stands disposed of. No costs.
Consequently, the miscellaneous applications, if any shall also stand disposed of.
------------------------------------------- NOOTY RAMAMOHANA RAO, J 24th April, 2014