Andhra HC (Pre-Telangana)
Jitendra Palnitker vs State Of Andhra Pradesh on 25 July, 1995
Equivalent citations: 1995(3)ALD80, 1995(2)APLJ282, 1996CRILJ105, 1995(2)LS160
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
ORDER
1. This petition is filed under Section 482 Cr.P.C. for release of Hero Honda Motor Cycle bearing R.T.O. Registration No. A.P. 9C 2803 in favour of the petitioner herein.
2. In this matter, a small but very interesting point has been agitated before this Court for consideration.
3. The learned counsel for the petitioner submitted at the Bar that the offence against the petitioner under the Andhra Pradesh Prohibition Act and Andhra Pradesh Excise Act is yet to be proved. The motor cycle in question is exposed to the atmosphere condition and it is lying without any care being taken. Thus, at the end of trial even if the accused is acquitted, the motor cycle will lose its value and therefore prayed for the interim custody of the said vehicle.
4. The learned Public Prosecutor appearing on behalf of the State submitted at the Bar that the motor cycle is liable to be confiscated and the confiscation is to be done by the Prohibition and Excise Officials. The Magistrate has no jurisdiction to pass even an interim order regarding the release of the motor cycle. Therefore, the legal question posed before me as to whether the Magistrate has jurisdiction to pass the order for interim custody of the vehicle involved in the Prohibition and Excise offences.
5. In order to appreciate the law involved in the matter, it is necessary to see into the statement of objects and reasons for enacting the Andhra Pradesh Prohibition Act, 1995 and to know whether the Magistrate has jurisdiction.
6. The statement of objects and reasons reads as under :
"Article 47 of the Constitution enjoins that the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of all intoxicating drinks which are injurious to health. The Andhra Pradesh (Andhra Area) Prohibition Act, 1937 which satisfied the above Constitutional mandate was in force in the Andhra Area of the State of Andhra Pradesh until the 30th October, 1969. Prohibition was lifted in the Andhra Area of the State also with effect from the first November 1969 and from that date onwards there has been no prohibition on the sale and consumption of alcoholic drinks in the State of Andhra Pradesh.
In recent times, it is noticed that the consumption of alcoholic drinks has grown alarmingly and has developed into a social evil. Though the sale of arrack was banned by the Government with effect from 1st October, 1993 there is no ban on the sale and consumption of Indian made liquors and Foreign liquors, beer, wine, etc. The women folk in the State of Andhra Pradesh have been agitating for the imposition of total prohibition. The Government have taken notice of their just demand and have decided to impose total prohibition on the consumption of alcoholic drinks, other than toddy."
By reading the statement of objects and reasons, it is evident that earlier there was a Prohibition Act which was known as 'Andhra Pradesh (Andhra Area) Prohibition Act, 1937, which satisfied the constitutional mandate and which was in force in the Andhra Area of the State of Andhra Pradesh till 30th October 1969. Thereafter it appears that the prohibition was totally lifted in Andhra Area of the State with effect from the First November 1969 and from that date onwards there was no prohibition on the sale and consumption of alcoholic drinks in the State of Andhra Pradesh.
7. It can be further noticed from the statement of objects and reasons that when the Government noticed that the consumption of alcoholic drinks is going alarmingly and developing social evil, therefore, initially the sale of arrack was banned by the Government with effect from the 1st October, 1993 and there was no ban on the sale and consumption of Indian made liquors and Foreign liquors, beer, wine etc. In other words, it means that in Andhra Pradesh the total prohibition was made after 1969 for the first time in the year 1995.
8. It further appears that the Andhra Pradesh Excise Act came to be enacted in the year 1968. The statement of objects and reasons of the said Act reads as under :
"An Act to consolidate and amend the law relating to the production, manufacture, possession, transport, purchase and sale of intoxicating liquor and drugs, the levy of duties of excise and countervailing duties on alcoholic liquors for human consumption and opium, Indian hemp and other narcotic drugs and narcotics and to provide for matters connected therewith in the State of Andhra Pradesh."
By reading the above statement of objects and reasons, it is evident that the Andhra Pradesh Excise Act is of more a fiscal Legislation than that of punitive Legislation. Of course, there are punitive sections in the Andhra Pradesh Excise Act, 1968 but mainly they are for the breach of evasion of Excise Duties.
9. I have already stated in the foregoing paragraphs of my order that the statement of objects and reasons of the Andhra Pradesh Prohibition Act, 1995 was enacted in the year 1995 banning total prohibition in the State of Andhra Pradesh. Thus, any offence is committed under this Act is necessarily made penal under the punitive sections of the said Act.
10. In the Andhra Pradesh Excise Act, 1968, the Deputy Commissioner of Excise is the Appellate Authority. If seize with the matter under this Act, the Court had no jurisdiction to entertain any application in respect of excisable articles including conveyance used in carrying such articles as far as its release and confiscation is concerned. Section 46-E of the Andhra Pradesh Excise Act, 1968 reads as under :
"46E. BAR OF JURISDICTION :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974) when the Deputy Commissioner of Excise or the Appellate Authority is seized with the matter under this Act, no Court shall entertain any application in respect of excisable articles any package, covering receptacle, any animal, vehicle or other conveyance used in carrying such articles as far as its release, confiscation is concerned and the jurisdiction of the Deputy Commissioner of Excise or the appellate authority with regard to the disposal of the same shall be exclusive."
Therefore, it is evident from the above section that only the Deputy Commissioner of Excise or the Appellate Authority had a jurisdiction to pass necessary orders regarding the release of the vehicle involved under the Excise Act.
11. As stated earlier, this Andhra Pradesh Prohibition Act, 1995 came into force on 20th February 1995 and therefore any offence committed under the Andhra Pradesh Prohibition Act, 1995, the accused has to be dealt with under the said Act. It is relevant to read the Section 12 of the Andhra Pradesh Prohibition Act, 1995. It reads as under;
"12. THINGS LIABLE TO CONFISCATION : Without prejudice to the powers of the Excise Officers under Section 46 of the Andhra Pradesh Excise Act, 1968 (Act 17 of 1968) in any case, in which an offence has been committed against this Act, the liquor by means of which the offence has been committed shall be liable to confiscation along with the receptacles, packages, coverings, animals, vessels, carts or other vehicles used to hold or carry the same."
Section 14 of the Andhra Pradesh Prohibition Act, 1995 is also relevant for the purpose of the issue involved in this matter which reads as under :
"14. POLICE TO TAKE CHARGE OF ARTICLES SEIZED : All Officers in charge of the Police Station shall take charge of and keep in safe custody pending the orders of a Magistrate or of a Prohibition Officer, all articles seized under this Act which may be delivered to them; and shall allow any Prohibition Officer who may accompany such articles to the Police Station, or who may be deputed for the purpose by his superior Officer, to affix his seal to such articles and to take samples from them. All samples so taken shall also be sealed with the seal of the Officer in charge of the Police Station."
Section 14 of the said Act confers the jurisdiction of the Magistrate as well as the Prohibition Officer to release the vehicle involved in the offence by way of interim custody.
12. Section 13 of the Andhra Pradesh Prohibition Act, 1995 will also give solution to the issue involved in the matter. It reads as under :
"13. CONFISCATION HOW ORDERED : (1) When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the Court decides that anything is liable to confiscation, such confiscation may be ordered by the Court.
(2) When an offence against this Act has been committed but the offender is not known, or cannot be found, or when anything liable to confiscation under this Act and not in the possession of any person cannot be satisfactorily accounted for, the case shall be inquired into and determined by the Collector or other Prohibition Officer in charge of the District or by any other Officer authorised by the State Government in that behalf, who may order such confiscation.
Provided that no such order shall be made until the expiration of fifteen days from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims."
Section 13 of the Andhra Pradesh Prohibition Act gives the powers to the Magistrate to order for the confiscation of things which are liable for confiscation even if the accused is acquitted. In other words, it means that the order of confiscation has to be passed by the Magistrate and not by the Deputy Commissioner of Excise when the offence is committed under this Act Confiscation can be ordered by the Collector or other Prohibition Officer if accused is not traced.
13. Taking into consideration the above provisions of law, I have no hesitation in holding that when the person is charged under the Andhra Pradesh Prohibition Act, 1995, the Magistrate has all powers under the Act to deal with the accused and the articles used in the commission of the offence under this Act.
14. The Andhra Pradesh Prohibition Act, 1995 is a complete code. Inspite of this fact, I am not able to appreciate as to why the Investigating Agencies charged the accused even under the Andhra Pradesh Excise Act. If the accused is charged under the Andhra Pradesh Excise Act, the prosecution has to show that the accused has evaded the Excise Duty in contravention to the law narrated in Andhra Pradesh Excise Act. Unless it is shown that he has violated the provisions of Andhra Pradesh Excise Act, the accused cannot be charged for any offence under the said Act.
15. Section 31 of the Andhra Pradesh Prohibition Act, 1995 reads as under :
"31. OVERRIDING EFFECT : Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in the provisions of the Andhra Pradesh Excise Act 1968 (Act 17 of 1968) and the rules made thereunder for the time being in force."
This section lays down that any inconsistent provision is found in the Andhra Pradesh Excise Act, contradicting the provisions of the Andhra Pradesh Prohibition Act, 1995, the provisions contained in Andhra Pradesh Prohibition Act, 1995 will prevail. For that reason also the Excise Officer or the Collector will have jurisdiction to pass an order of confiscation if the accused is unknown, and if the charge sheet is filed against the accused, only the Magistrate can pass the order of confiscation of articles, vehicles, etc., involved in the Andhra Pradesh Prohibition Act, 1995.
16. Considering the above provisions of law, I hold that the Magistrate has jurisdiction to pass an order of release of the vehicle in favour of the petitioner by way of interim custody.
17. Moreover, if the vehicle is kept un-attended in the Court or at the Police Station, it will lose its value and even the accused is acquitted and no confiscation is ordered by the Magistrate, even in that event, loss of vehicle or damage of the vehicle will in effect punish the acquitted accused.
18. I, therefore, direct that the Hero Honda Motor Cycle bearing R.T.O. Registration No. AP 9C 2803 be released in favour of the petitioner herein on proper identification on his furnishing two sureties to the extent of Rs. 20,000/- (Rs. Twenty thousand only) and personal bond for the like amount to the satisfaction IV Metropolitan Magistrate, Hyderabad with an undertaking that he would not dispose of the vehicle, would not change the nature of the vehicle and further would not create any third party interest and he would produce the said vehicle as and when directed by the Court.
19. With these directions, this petition stands allowed.
20. Petition allowed.