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2001 DIGILAW 1531 (AP)

G. Nagaraj v. State Of A. P.

2001-11-23

V.ESWARAIAH

body2001
V. ESWARAIAH, J. ( 1 ) THE petitioner filed this criminal petition under Ss. 451 and 482 of Criminal Procedure Code to set aside the order dated 20-8-2001 in Crl. M. P. No. 2191/2001 in Crime No. 137/2001 on the file of the P. S. Shahinayathgunj made by the learned Metropolitan Magistrate, Hyderabad, and also to modify the order made in Criminal Revision Petition No. 321/2001 dated 15-11-2001, made by the learned Additional Metropolitan Sessions Judge, directing the P. S. Shahinayathgunj, Hyderabad, to release the vehicle in favour of the petitioner. ( 2 ) THE petitioner submits that he is the registered owner of the auto bearing No. AP-10-U-1248 and the said vehicle has been seized while the auto driver and two other members were found carrying ID liquor sachets in the said vehicle and a case has been registered in Crime No. 137/2000 for the offence under S. 8 (b) of A. P. Prohibition Act. Though the petitioner is not directly involved in the alleged crime, his name was arrayed as accused No. 3. ( 3 ) THE petitioner filed petition in Crl. P. No. 2191/2001 on the file of the IIIrd Metropolitan Magistrate, Hyderabad, stating that he is the registered owner of the said vehicle and the same may be released in his favour. But the learned Magistrate dismissed the said petition on 20-8-2000. Being aggrieved by the said order, the petitioner filed Criminal Revision Petition No. 321/2001 on the file of the learned VIIth Additional Metropolitan Sessions Judge, Hyderabad, and the learned Sessions Judge ordered for the release of the said vehicle in favour of the petitioner on his furnishing a bank guarantee for the value of the vehicle i. e. , Rs. 56,213/- as shown in the Insurance Policy as value of the vehicle and also an undertaking from him to produce the vehicle as and when required by the Court without tampering its physical features in a personal bound of like sum of value of the vehicle to the satisfaction of the IIIrd Metropolitan Magistrate, Hyderabad. It is further directed that the original RC book of the vehicle shall be furnished by the petitioner to be retained by the IIIrd Metropolitan Magistrate till the disposal of the case and also intimate the said fact to the original Transport Authority concerned and State Bank of India, Lallaguda, Secunderabad with whom the said vehicle is hypothecated. It is further directed that the original RC book of the vehicle shall be furnished by the petitioner to be retained by the IIIrd Metropolitan Magistrate till the disposal of the case and also intimate the said fact to the original Transport Authority concerned and State Bank of India, Lallaguda, Secunderabad with whom the said vehicle is hypothecated. Aggrieved by the said order, the petitioner filed this petition stating that the conditions imposed by the learned Metropolitan Sessions Judge to furnish the bank guarantee for the value of Rs. 56,213/- as shown in the insurance policy is onerous and the said condition is as good as not releasing the vehicle and the vehicle is in the custody of the police for the last 41/2 months which is being exposed to the sun and rain and apart from that its value is being diminished day by day and the petitioner is suffering serious and irreparble loss and he cannot fulfill the said conditions and requested to release the vehicle on his executing a personal bond alone without insisting for the bank guarantee. ( 4 ) THE question that arises for consideration is whether the learned IIIrd Metropolitan Magistrate and the learned VIIth Additional Metropolitan Sessons Judge, have any powers to order for release of the vehicle in question. ( 5 ) THE vehicle has been seized in connection with the offence under S. 8 (b) of the A. P. Prohibition Act, 1995. According to the said section, whoever possesses, collects, buys, sells,transports, produces or manufactures any liquor shall be punished. Where the liquor is involving in the offence is less than 5 liters, the punishment shall not be less than six months but which may extent to 3 years or, with fine which shall not be less than Rs. 10,000/ -. Where the liquor is involved in the offence is more than 5 litres, the punishment shall be less than the period of one year but which may extend up to 5 years. Under S. 12 of the Act,in any case in which the 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. Under S. 12 of the Act,in any case in which the 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. In the instant case, the illicit liquor is found while it was being transported by means of a vehicle i. e. , auto in question. Therefore, the said vehicle shall be liable for confiscation under S. 12 of A. P. Prohibition Act. In respect of the vehicles under the A. P. Prohibition Act, the confiscation proceedings have to be made in accordance with S. 13 of the Act. Under S. 13 of the Act, where anything liable for confiscation under S. 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. On production of such property, the Deputy Commissioner, Prohibition and Excise, may confiscate the vehicle or collect the value of the vehicle in lieu of such vehicle and release the same. The Deputy Commissioner of Prohibition and Excise concerned has also got an incidental or ancillary power to grant interim custodfy of the vehicle pending the confiscation proceedings. That being the law, Shahinayathgunj P. S. , Hyderabad appears to have not been produced the said vehicle before the Deputy Commissioner of Prohibition and Excise, Hyderabad, and the petitioner also without knowing the aforesaid legal procedure, approached the wrong forum i. e. , IIIrd Metropolitan Magistrate, Hyderabad for release of the vehicle and the Magistrate also without considering the objections as raised by the learned Assistant Public Prosecutor that the Court has no jurisdiction to release the vehicle and the Excise Officials are alone competent authority to do so, simply dismissed the application on the ground that the vehicle is being used by the petitioner for the illegal purpose and if the interim custody of the auto is given to him there is every possibility of misusing the vehicle by him and again and again and accordingly petition was dismissed. On an appeal, the learned Additional Metropolitan Sessions Judge for Trial of the communal Offence cases, Hyderabad, and the learned VIIth Additional Sessions Judge also without considering the question that whether the Criminal Courts have got any power to release the vehicle or not and simply considered certain judgments which do not relate to the vehicles involved in the Prohibition and Excise cases and ordered for the release of the vehicle on fulfillment of certain conditions. ( 6 ) NEITHER IIIrd Metropolitan Magistrate, Hyderabad, nor the VIIth Additional Metropolitan Sessions Judge, Hyderabad have got any power or jurisdiction to entertain the application to release the vehicle as the vehicle is liable for confiscation under S. 12 of the A. P. Prohibition Act the competent authority to release the vehicle is the Deputy Commissioner i. e. , the Deputy Commissioner of Prohibition, Hyderabad Division, Hyderabad, and therefore, the orders in question are set aside and the Shahinaya-thgunj P. S. , Hyderabad, is directed to produce the said vehicle before the Deputy Commissioner, Prohibition and Excise, Hyderabad immediately without any further delay and it is open for the petitioner to file application for release of the vehicle pending disposal of the confiscation proceedings before the Deputy Commissioner of Prohibition and Excise. With the aforesaid directions, the criminal petition is disposed of. Petition partly allowed.