Andhra Pradesh High Court - Amravati
G. Amarnath Reddy, vs The State Of Andhra Pradesh, on 6 November, 2020
Author: Kongara Vijaya Lakshmi
Bench: Kongara Vijaya Lakshmi
HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
WRIT PETITION No.20687 of 2020
ORDER:
This Writ Petition is filed by the petitioner seeking to declare the proceedings dated 22.10.2020 issued by the 3rd respondent-Superintendent of Police directing the petitioner to deposit Fixed Deposit receipt for a sum of Rs.2,60,000/- as a condition precedent for giving interim custody of vehicle bearing No.TS 02 UA 0875 which is detained in connection with Crime No.155 of 2020 on the file of Chennekothapalli Police Station, Ananthapuramu District, pending confiscation proceedings, as illegal and arbitrary.
2. The case of the petitioner is that he is the owner of Car bearing registration No.TS 02 UA 0875 and that the said vehicle was implicated in Crime No.155 of 2020 on the file of Chennekothapalli Police Station, Ananthapuramu District for the offence under Sections 270, 273, 328 IPC and Section 7 and 22 of COTP Act, 2003 and Section 34 (A) of the Andhra Pradesh Excise Act. The 3rd respondent herein has passed impugned order dated 22.10.2020 directed the petitioner to deposit Fixed Deposit receipt for Rs.2,60,000/- towards the value of the vehicle and also directed the petitioner that to submit an undertaking to the effect that he shall not alter or alienate or sell the vehicle in any manner and keep it in the same condition as it is now and to 2 KVL,J WP No.20687 of 2020 produce the same at the place and time, as directed by the authorities till finalization of confiscation proceedings. Challenging the same, the present writ petition is filed.
3. Learned Government Pleader for Prohibition and Excise appearing for the respondents did not file any counter affidavit, but advanced arguments.
4. Learned Government Pleader for Prohibition and Excise contends that the Deputy Superintendent of Police, Prohibition and Excise is the competent officer to issue a direction, that the respondents have got power to confiscate the property to the State, that 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 for the security for production of the vehicle for ordering confiscation to the State, there is no possibility of producing the vehicle in future and realizing the amount to the State.
5. There is no dispute so far as registration of crime for the offence punishable under Sections 270, 273, 328 IPC and Section 7 and 22 of COTP Act, 2003 and Section 34 (A) of the Andhra Pradesh Excise Act in Crime No.155 of 2020 of Chennekothapalli Police Station, Anantapuramu district. On a bare look at the provisions of the Prohibition and Excise Act, shows that the Deputy Commissioner is competent to order confiscation of the property seized under the Act after conclusion of criminal proceedings. 3
KVL,J WP No.20687 of 2020
6. In similar fact situation, the Apex Court in State (NCT of Delhi) v. Narender1, 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 obstante 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 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 1 Criminal Appeal No.25 of 2014 dated 06.01.2014 4 KVL,J WP No.20687 of 2020 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."
7. Dealing with the 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 5 KVL,J WP No.20687 of 2020 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 6 KVL,J WP No.20687 of 2020 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."
8. 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.
9. In view of the same and following the above referred judgments, the 3rd 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 3rd 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, respondents 3 and 4 are directed to release the vehicle bearing registration No. TS 02 UA 0875 as interim custody to the petitioner in accordance with law. 7
KVL,J WP No.20687 of 2020
10. 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: 06.11.2020 Gvl 8 KVL,J WP No.20687 of 2020 HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI WRIT PETITION No.20687 of 2020 Date : 06.11.2020 Gvl