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Andhra HC (Pre-Telangana)

K. Sasi Kumar vs The State Of A.P, Rep. By Its Public ... on 24 September, 2014

Author: U. Durga Prasad Rao

Bench: U. Durga Prasad Rao

       

  

  

 
 
 THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO           

Criminal Petition No.10825 of 2014

24-09-2014 

K. Sasi Kumar.... Petitioner

The State of A.P, Rep. by its Public Prosecutor,High Court at Hyderabad. .
Respondent  

Counsel for Petitioner  : Sri Suresh Kumar Reddy 

Counsel for Respondent  : Public Prosecutor for State

<Gist:

>Head Note: 

? Cases referred:
1)      1995(3) ALD 1090 
2)      Crl.R.C.No.991 of 2014 dated 29.04.2014 
3)      Crl.R.C.No.2484 of 2012 dated 11.12.2012 
4)      2007 (1) ALD (Cri) 311
5)      1996 (1) ALD (Cri) 943
6)      1997 (2) ALT (Cri) 663


HONBLE SRI JUSTICE U. DURGA PRASAD RAO          
Criminal Petition No.10825 of 2014

ORDER:

The petitioner/owner of the vehicle seeks direction to the S.H.O, Prohibition and Excise Station, Karvetinagaram, Chittoor District to release Bajaj Pulsar motorcycle bearing No.AP 03 AW 9121 seized in Crime No.619/2013-14 of the said P.S. 2 a) The Prohibition and Excise Inspector, Karvetinagaram P.S, Chittoor District laid charge-sheet against A.1 to A.3 under Section 7-A r/w 8(e) of A.P. Prohibition Act, 1995 in Crime No.619/13-14 alleging that on 03.03.2014 at about 5:00pm, the excise officials found A.1 coming on Bajaj Pulsar motorcycle bearing No.AP 03 AW 9121 with one urea bag on petrol tank near Basivireddipalli cross on Puttur-Chittoor bus road and on suspicion they intercepted him and on verification, they found the urea bag containing 50 ID liquor sachets of each 100 ml and on enquiry he revealed that A.3 supplied those sachets and he was carrying them to supply to A.2. A.1 further stated that the vehicle belongs to the friend of his brother. On that the excise officials seized the I.D liquor, vehicle and arrested the accused and after completion of investigation laid charge-sheet against them. The seized property was deposited before the Deputy Commissioner of Prohibition and Excise for confiscation.

b) Then the present petitioner claiming himself as owner of the Bajaj pulsar motorcycle filed petition unnumbered Crl.M.P.No._____of 2014 under Section 451 Cr.P.C. before Additional Judicial First Class Magistrate, Puttur seeking interim custody of the vehicle. The said Court returned petition with the endorsement that the property was not produced before it and hence, the petition is not maintainable.

Hence the present petition.

3)      Heard.
4 a)    Learned counsel for petitioner relying upon the decision of the

b)      He also relied upon the decision of Single Judge of this High Court
in Chengata Chinnakannu Vasu vs. State of A.P. 
5)      The point for determination is:

Whether there are merits in this petition to allow?

6) POINT: The charge-sheet would show that the offences alleged are under Section 7-A r/w 8(e) of A.P Prohibition Act, 1995. As such, the relevant provisions dealing with confiscation, release of the vehicles and particularly, the jurisdiction of the Criminal Court as laid down in the said Act, have to be studied. In this context, Sections 12 and 13 of A.P. Prohibition Act, 1995 are pertinent. Section 12 reads thus:

Section 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.

So as per this provision, among others, a vehicle which is used for commission of the offence under A.P. Prohibition Act, 1995 shall also be liable for confiscation.

a) Then Section 13 is a consequential provision, describing the method and manner of dealing with the things liable for confiscation under Section

12. Section 13 which was amended and brought into force by amendment Act 35 of 1995 w.e.f. 12.10.1995 reads thus:

Section 13Confiscation of things by Prohibition and Excise Officers in certain cases:

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where anything liable for confiscation under Section 12 is seized and detained under the provisions of this Act, the officer seizing and detaining such property shall, without any unreasonable delay, produce the said seized property before the Deputy Commissioner of Prohibition and Excise who has jurisdiction over the area.

(2) On production of the said seized property under sub-section (1), the Deputy Commissioner of Prohibition and Excise if satisfied that an offence under this Act has been committed, may whether or not a prosecution is instituted for the commission of such an offence, order confiscation of such property:

[Provided that the Deputy Commissioner of Prohibition and Excise specially empowered in that behalf may accept such sum of money as may be prescribed in lieu of confiscation and release the animals or vessels or carts or other vehicles reasonably suspected of involvement in any offence falling under sub-clause(i) of clause

(b) of section 8 of this Act].

(3) While making an order of confiscation under sub-section (2), the Deputy Commissioner of Prohibition and Excise may also order that such of the properties to which the order of confiscation relates which in his opinion need not be preserved; or are not fit for human consumption be destroyed.

(4) Where the Deputy Commissioner of Prohibition and Excise after passing an order of confiscation under sub-section (2) is of the opinion that it is expedient in public interest so to do, he may order the confiscated property or any part thereof to be sold by public auction or dispose of departmentally.

(5) The Deputy Commissioner of Prohibition and Excise shall submit a full report of all particulars of confiscation to the Commissioner of Prohibition and Excise within twenty-four hours of such confiscation.

(6) The Deputy Commissioner of Prohibition and Excise shall, for the purposes of this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), when making enquiries under this section in respect of the following matters, namely.--

(a) receiving evidence on affidavits;

(b) summoning and enforcing the attendance of any person and examining him on oath; and

(c) compelling the production of documents.

Section 13-A. Issue of show cause notice No order of confiscation of any property shall be made under Section 13 unless the person from whom the said property is seized,-

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property; and

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice.

Section 13-B. Order of confiscation in the absence of offender xx xx Section 13C. Appeal Any person aggrieved by an order passed by the Deputy Commissioner of Prohibition and Excise under Section 13 may, within sixty days from the date of passing such order, appeal to the Commissioner of Prohibition and Excise, who may after giving reasonable opportunity to the appellant pass such orders as he deems fit.

Section 13D - Order of confiscation not to interfere with other punishments xx xx Section 13E. Bar of Jurisdiction Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act II of 1974), when the Deputy Commissioner of Prohibition and Excise or the appellate authority is seized with the matter under this Act, no court shall entertain any application in respect of liquor, any receptacle, package, covering, any animal, cart, vehicle or other conveyance used in carrying such liquor as far as its release, or confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the appellate authority with regard to the disposal of the same shall be exclusive. Section 13F - Property confiscated when to vest in Government xxxx So when Section 13 is intensely studied, we can understand that the officer who seized the property liable for confiscation shall produce the said seized property before the Deputy Commissioner of Prohibition and Excise who has jurisdiction over that area without unnecessary delay and upon such production, the Deputy Commissioner if satisfied that an offence under this Act has been committed may, whether or not a prosecution is instituted for the commission of such an offence, order confiscation of such property. Then Section 13-A lays down that a show-cause notice has to be served on the person from whom the said property was seized and he shall be given an opportunity of making representation in writing within a reasonable time before ordering of confiscation. Then Section 13C lays down the provision for appeal against the order of the Deputy Commissioner passed under Section 13. Such an appeal lies within 60 days from the date of the order to the Commissioner of Prohibition and Excise. Then most importantly Section 13-E ousts the jurisdiction of the Courts when the Deputy Commissioner or the appellate authority seized with the matter under the Act. In the present context, Section 13-E clearly lays down that no Court shall entertain an application for release of the vehicle and jurisdiction of the Deputy Commissioner and the Appellate authority in that regard is exclusive.

b) So when the scheme of the Act with reference to Sections 12 and 13 is perused, it is clear that the Deputy Commissioner and the Appellate Authority exercise jurisdiction in the matter of confiscation of the things/ property subject to confiscation under Section 12 of the Act and to that extent, the jurisdiction of the Court under Criminal Procedure Code, 1973 is barred. In that view of the matter, the order passed by learned Additional Judicial First Class Magistrate, Puttur in unnumbered Crl.M.P.No._____ of 2014 is impeccable.

7) Coming to the decision in P. Swarupas case (1 supra) relied upon by the petitioner, no doubt the Division Bench of this High Court laid down the following principles in that decision:

Para 18: Accordingly, we hold as under:

(1) Where the crime is registered under the provisions of the Andhra Pradesh Prohibition Act, the Magistrate has got power to consider the petition filed under the provisions of Criminal Procedure Code viz, Section 451 Cr.P.C., for release of the vehicle involved in the offence.

(2) Where the crime is registered only under the provisions of the Andhra Pradesh Excise Act, 1968, the Deputy Commissioner of Excise alone is competent to pass orders of confiscation in respect of seized articles or vehicles and the Court will have no jurisdiction to exercise under Section 451 Cr.P.C., to order release of the vehicle seized.

(3) Where the crime is registered both under the provisions of the Andhra Pradesh Excise Act, 1968 as well as the provisions of the Andhra Pradesh Prohibition Act, 1995, a petition filed under provisions of Cr.P.C., viz., Section 451 Cr.P.C., for release of vehicle seized and it is contended that the offence exclusively falls under the A.P. Excise Act, the concerned Court has to first decide whether the offence committed is punishable under the A.P. Excise Act or the A.P. Prohibition Act. In case, the Court comes to the conclusion that the offence committed is punishable under the A.P. Excise Act then it cannot exercise power under Section 451 Cr.P.C. for order release of the vehicle. However, in case the Court comes to conclusion that the offence committed is punishable under the A.P. Prohibition Act, then the Court has got power under Section 451 Cr.P.C., to order release of the vehicle. (4) Where the crime is registered under the provisions of the A.P. Excise Act, 1968 and the provisions of the A.P. Prohibition Act, 1995, and when there is no plea that the offence exclusively falls under the A.P. Excise Act, then the Court has got power under Section 451 Cr.P.C., to order release of the vehicle inasmuch as the A.P. Prohibition Act has got overriding effect over the A.P. Excise Act.

However, it must be noted that sofaras principle No.1 is concerned, the Division Bench laid down the said principle with reference to Sections 13 and 14 of A.P. Prohibition Act, as they stood by then i.e, old Sections. Section 13 as it stood prior to amendment w.e.f. 12.10.1995 is as follows:

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 enquired into and determined by the Collector or the Prohibition Officer in charge of the District or by any other officer authorized 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.

However, Section 13 was substituted with a new Section 13 along with 13-A to 13-F w.e.f 12-10-1995.

So a comparative study of Section 13 now and then would show that the express bar of the jurisdiction of the Court as is in existence now was not there earlier. So the ratio in the above decision will not come to the aid of the petitioner.

8) Sofaras the decision in Chengata Chinnakannu Vasus case (2 supra) relied upon by the petitioner is concerned, it must be said that the said decision also has no application to the present case. In that decision, the offence alleged was under Section 34-A of A.P Excise Act, 1968 but not the offence under A.P. Prohibition Act, 1995. In that decision, learned Single Judge of this High Court in Para 7 of his judgment has observed as follows:

Para 7: Albeit it was observed in P.Swarupas case (1 supra) that the Court has no jurisdiction when the offence involved is under the provisions of the A.P. Excise Act, a different view was taken by this Court in M/s. Amruthavarshini Dairy Farms Pvt. Ltd. v. The State (Crl.R.C.No.2484 of 2012, dated 11-12-2012). In view of M/s.Amruthavarshini Dairy Farms Pvt. Ltd. vs. The State (Crl.R.C.No.2484 of 2012, dated 11-12-2012), I consider that the Criminal Court has got jurisdiction to pass orders regarding the disposal of property, more so by way of interim custody.

Thus, learned Judge opined that though in P.Swarupas case (1 supra), the Division Bench held that the Court has no jurisdiction when the offence involved is under the A.P. Excise Act (vide principle No.2 in Para 7), a different view was taken by this Court in M/s.Amruthavarshini Dairy Farms Pvt. Ltd. vs. The State . Basing on the latter decision, learned Judge held that criminal Court has got jurisdiction to pass orders regarding disposal of property, more so by way of interim custody.

a) So, when Criminal Revision Case No.2484 of 2012 is perused, another learned Single Judge of this High Court therein was dealing with a Criminal Revision Case filed against the order passed by learned Additional Judicial First Class Magistrate, Jaggaiahpet in a petition filed under Section 457 Cr.P.C. seeking return of the vehicle involved in an offence under Section 7-A r/w 8(e) of A.P. Prohibition Act. Learned Magistrate refused granting interim custody of the vehicle on the ground that he had no power to return the vehicle. In the revision, learned Single Judge relying upon P.Swarupas case (1 supra) ordered interim custody of the vehicle to its owner. M/s. Amruthavarshini Dairy Farms Pvt. Ltds case (3 supra) is concerned, the offence in that case is no doubt under Section 7-A r/w 8(e) of A.P. Prohibition Act. However, unlike in P.Swarupas case (1 supra), the offence in M/s.Amruthavarshini Dairy Farms Pvt. Ltds case (3 supra) was committed subsequent to the amendment of Sections 13 and 14 of A.P. Prohibition Act, 1995. So principle No.1 laid down in P. Swarupas case (1 supra), in fact had no application to M/s. Amruthavarshini Dairy Farms Pvt. Ltds case(3 supra) as barring of the jurisdiction of the Courts under Section 13E of A.P. Prohibition Act already came into existence by then. In that view of the matter, I am constrained to hold that the decision in M/s. Amruthavarshini Dairy Farms Pvt. Ltds case (3 supra) is per incuriam since it is against the statutory provision under Section 13-E of A.P. Prohibition Act.

b) Then coming to Chengata Chinnakannu Vasus case (2 supra), it must be said that in that case as already stated supra, interim custody was ordered basing on M/s. Amruthavarshini Dairy Farms Pvt. Ltds case (3 supra). I am constrained to hold that this decision is also per incuriam for two reasons. Firstly, because M/s.Amruthavarshini Dairy Farms Pvt.

Ltds case (3 supra), was rendered without noticing the change in law and further, the offence in M/s.Amruthavarshini Dairy Farms Pvt. Ltds case (3 supra) was under A.P. Prohibition Act, 1995 whereas in this case, the offence was under Section 34 (a) of A.P. excise Act, 1968. Secondly, in A.P. Excise Act, 1968 a provision under Section 46-E akin to Section 13(e) of A.P. Prohibition Act was enacted barring the jurisdiction of the Courts, by virtue of which, in offences under A.P Excise Act also, the jurisdiction of the Courts is barred to entertain applications for release and confiscation of the vehicles, when the matter was seized by Deputy Commissioner of Prohibition and Excise or the Appellate Authority. Hence, the decision in Chengata Chinnakannu Vasus case (2 supra) is also per incuriam.

9) It may be noted that a Division Bench of this High Court in Shaik Ghani vs. State of A.P has, while resolving the conflict between the two decisions i.e, S. Kareemulla vs. Prohibition and Excise Sub-Inspector, Nandyal and Basha vs. The State , succinctly delineated the effect of the bar of the jurisdiction of the Courts provided under Section 13-E of A.P. Prohibition Act, 1995. The Division Bench of this Court observed thus:

Para 11: This Court in S.Kareemulla (supra) has not noticed the amendment brought to A.P. Prohibition Act No.35/95 with effect from 12-10-1995 adding Sections 13-A to 13-F, though judgment was delivered on 1-11-1995. Section 13-E starts with non-obstante clause will have the effect of overriding the provisions of law or of the law in which the said clause is inserted. Normally, a non- obstante clause is always expressed in a negative form, that is to say, by using the words "notwithstanding anything contained" or "anything contained in a previous law shall not affect the provisions of a particular act" and so on. In the instant case, in Section 13-E, it is clearly mentioned that "notwithstanding anything contained in the Code of Criminal Procedure, 1973 when the Deputy Commissioner of Prohibition and Excise or the appellate authority is seized with the matter under the Act, no Court shall entertain any application in respect of release of vehicle or other conveyance used in carrying such liquor as far as its release or confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the appellate authority with regard to disposal of the same is exclusive." Para 12: Accordingly, we hold that the view expressed by this Court in S. Kareemullah (supra) is not a good law and it was rendered without noticing the statutory provisions added at Act 35 of 1995 and the same is per incuriam. We, further hold that the view expressed by this Court in M. Basha (supra) is inconformity with the law declared by this Court and the Supreme Court that the criminal courts will not have jurisdiction to release the vehicle for interim custody when the matter is seized by the confiscating authority.

So, in essence, the Division Bench decision in Shaik Ghanis case(4 supra) is applicable to the case on hand.

In view of above discussion, I find no merits in the petition.

10) In the result, this petition is dismissed with a direction to the petitioner to seek his remedy before the Deputy Commissioner of Prohibition and Excise.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.

_________________________ U.DURGA PRASAD RAO, J Date: 24-09-2014