Andhra HC (Pre-Telangana)
Sunkari Sambaiah And Others vs State Of Andhra Pradesh., Rep. By S.H.O. ... on 19 August, 2013
Equivalent citations: AIRONLINE 2013 AP 50, (2013) 3 ALD(CRL) 750
Author: N.V.Ramana
Bench: N.V.Ramana
THE HON'BLE SRI JUSTICE N.V.RAMANA AND THE HON'BLE SRI JUSTICE VILAS WRIT APPEAL.No.878 of 2012 Dated 19-08-2013 Sunkari Sambaiah and others.... Appellants State of Andhra Pradesh., Rep. by S.H.O. P.S., Kesamudram, Warangal District.. Respondent Counsel for the Appellants: Sri A.Ravinder Counsel for Respondent : Government Pleader for Home <GIST: >HEAD NOTE: ?Cases referred (1) AIR 1969 Supreme Court 267 THE HON'BLE SRI JUSTICE N.V.RAMANA AND THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR W.A.No.878 of 2012 ORDER:
(per the Hon'ble Sri Justice N.V.Ramana) Writ petition filed by the writ petitioners seeking to quash the F.I.R. registered against them under Sections 34 (a) and 36 of A.P.Excise Act, 1968 (for short 'the Act'), was dismissed by the learned single Judge, hence this appeal.
For the sake of convenience, parties are referred to as they are arrayed in the writ petition.
Petitioner No.1 claims that he is a license holder of retail shop under A.4 category, which was valid up to 30.06.2012. Petitioner No.1 also has godown license, where he stores the liquor, which is also valid till 30.06.2012. Similar to the petitioner No.1, petitioner Nos.2 and 3 are also licensees under A-4 category. It is alleged that on 24.05.2012, the Circle Inspector of Police, Mahbubabad Rural along with his staff raided the godown of the petitioner No.1 and found that petitioner Nos.2 and 3, who do not hold any license to store, had allegedly stored their liquor bottles in the petitioner No.1's godown. It was also further alleged that the petitioner No.1 had also stored Kingfisher beer boxes illegally. While a crime was registered under F.I.R. No.82 of 2012 on 24.05.2012 before Kesamudram police station, Warrangal District, petitioners question the said registration of F.I.R. primarily on the ground that the police officer, who raided the godown of the petitioner No.1, has no authority under Section 52 of the A.P.Excise Act. It is submitted that under the said provision a police officer, who is specifically empowered, alone is competent and the said Circle Inspector not being an empowered officer, to search and register crime against the petitioners, hence the aforesaid F.I.R. is liable to be quashed.
Before the learned single Judge, it was contended that the power under Section 482 Cr.P.C. to quash the criminal proceedings is not a bar for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India, but the learned single Judge did not accept the said contention by holding that only in rarest of rare cases where the malafides are attributed to the police officer, the writ Court would entertain the proceedings under Article 226 of the Constitution of India, otherwise there is an effective alternative remedy available under Section 482 Cr.P.C. Nevertheless, learned single Judge examined the petitioners' contentions on merits. Learned single Judge held that by virtue of Section 55, it cannot be said that the Circle Inspector, who searched and registered the offence against the petitioners, was incompetent, consequently dismissed the writ petition giving liberty to the petitioners to avail the appropriate remedy under law. This appeal is directed against the aforesaid order.
We have heard the learned counsel for the appellants and learned Government Pleader for home as well as learned Government Pleader for Excise.
Main thrust of the learned counsel for appellants being on Section 52 of the Act, whereas learned Government Pleader for Excise placed strong reliance on Sections 53 and 55 of the Act.
For the sake of convenience Sections 52, 53 and 55 are extracted hereunder:
"Section 52: Power to enter and inspect places of manufacture and sale:-
The Commissioner or a Collector or any Prohibition and Excise Officer not below such rank as may be prescribed, or any Police Officer duly empowered in that behalf, may -
(a) enter and inspect, at any time, by day or by night, any place in which any licensed manufacturer, manufacturers or stores any intoxicant, and
(b) enter and inspect, at any time, within the hours during which sale is permitted, and at any other time during which the same may be open, any place in which any intoxicant is kept for sale by any person holding a license under this Act; and
(c) examine the accounts and registers, and examine, test, measure or weigh any materials, stills, utensils, implements, apparatus or intoxicant fund in such place.
Section 53: Power to arrest without warrant, to seize articles liable for confiscation and to make searches:
(1) Any officer of the Government employed in the Prohibition and Excise, Police or Revenue Department of the State subject to such restrictions as may be prescribed and any other person duly empowered may -
(a) arrest without warrant any person for an offence punishable under Section 27 or Section 34 or Section 35 or Section 36 or Section 36 or Section 37-A or Section 40-A or Section 50 or Section 50-A;
(b) seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act, or any other law for the time being on force, relating to excise revenue; and
(c) detain and search any person upon whom and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be.
(2) When any person is accused or is reasonably suspected of committing an offence under this Act, other than an offence under Section 34, Section 35, Section 36 or Section 37 or Section 37-A or Section 50 and on demand of any such officer as aforesaid, refuses to give his name and residence or gives a name and residence which such officer has reason to believe is false, he may be arrested by such officer in order that his name and residence may be ascertained.
Section 53-A: Obligation of officers to assist each other:
The officers of the Departments of Police and Revenue shall upon notice given or request made by a Prohibition and Excise Officer be legally bound to assist him in carrying out the provisions of the Act.
Section 55: Power to search without warrant: Whenever the Commissioner or a Collector 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 Prohibition and 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 ground of his belief -
(a) at any time by day or night enter and search any place and seize any thing 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."
It would be evident from the above provisions that for a police officer to exercise powers under Sections 52 and 53 of the Act, it is prescribed that the police officer must be duly empowered by the Commissioner or the Collector as provided. For the purpose of Section 55, the power there under can be exercised by Commissioner, Collector or any police officer not below the rank of officer- in-charge of a police station. Section 55, significantly, employs different language than under Sections 52 and 53, as empowerment of police officer is not necessary for exercising powers, unlike that under Sections 52 and 53. It is also noteworthy that the power under Section 55 is with reference to entry and search of any place and seize, detain and if necessary arrest any person found in such place. The word 'place', which is used in both the limbs of Section 55 of the Act is defined under Section 2 Sub-clause 24 of the Act, which reads as follows:
Section 2 Sub-clause 24:
"Place" includes a house, building, booth, shed, enclosure, shop, tent, vessel, raft and vehicle.
The above definition of 'place' is an inclusive definition and secondly it covers any enclosure, shop or even tent, vessel and vehicle.
In the present case since the godown of the petitioner No.1, where he stored liquor, was searched, the same clearly falls within the definition of "place" and consequently it would be, within the powers under Section 55 of the Act.
Learned counsel for the appellants further proceeded to contend that Section 52 is the specific power under the Act to enter and inspect places of manufacture and sale and according to him, Section 55 of the Act is excluded. He also placed reliance upon a decision of the Supreme Court in "Gujarat Electricity Board, Appellant v. Girdharlal Motilal and another, Respondents1"
for the proposition that when the legislature has prescribed the manner for exercising power, that power can be exercised only in that manner and not in any other manner. Learned counsel for the appellants, therefore, submits that when there is specific provision available under Section 52 of the Act, Section 55 of the Act would not be attracted to the facts of the case. Learned counsel for the appellants also submitted that godown is separately licensed than the aforesaid shop.
We are unable to uphold the said contention as in our view Section 52 of the Act empowers the officers mentioned there under to enter and inspect places of manufacture and sale including place where intoxicants are kept for sale and examine the accounts and registers, test, measure or weigh any materials etc. Similarly Section 53 of the Act empowers the officers prescribed to search, seize and confiscate, seize and detain any excisable or other article, detain and search any such person and any vessel, raft, vehicle etc. The aforesaid provisions of Sections 52 and 53 of the Act, therefore, operate in different fields, whereas Section 55 is a general provision where the officers prescribed can enter, search any place and detain, search and arrest any person found in such place, who is said to be involved in the offence.
On a plain reading of the three provisions, we are of the view that all the three provisions operate in different fields and it is not as if one excludes the other. On the facts and circumstances of the present case, it cannot be said that the Circle Inspector of Police, who inspected the petitioner No.1's godown, whereby F.I.R. was registered against the petitioners, was incompetent. Therefore, the contention of the learned counsel for the appellants that the police officer, who searched the premises of the petitioner No.1 and registered the F.I.R. was not empowered or authorized to search, is not sustainable. The appellants, therefore, cannot seek Mandamus for quashing the F.I.R. in question. The appeal, therefore, fails. Accordingly, the writ appeal is dismissed. The miscellaneous petitions, if any, filed in the writ appeal shall stand closed. There shall be no order as to costs.
______________________ JUSTICE N.V.RAMANA _________________________________ JUSTICE VILAS V.AFZULPURKAR 19th August, 2013