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2002 DIGILAW 1232 (AP)

Renikindi Prakash v. State Of A. P.

2002-10-13

C.Y.SOMAYAJULU

body2002
C. Y. SOMAYAJULU, J. ( 1 ) THIS is an application to quash the FIR in crime No. 242/02-03 of Prohibition and excise Station, Jammikunta, Karimnager district, registered under Sections 13 (f) and section 34 (e) of A. P. Excise Act. ( 2 ) THE case of the prosecution is that on 26-9-2002 petitioners were illicitly transporting black jaggery weighing about 94. 65 quintals in the lorry bearing no. AAA. 7222 from Kamareddy to Parkal. First petitioner, a partner of the firm Renikindi dattaiah and Sons, 2nd petitioner, a clerk in the said firm, 5th petitioner who is the owner of the lorry AAA. 7222, 3rd and 4th petitioners, driver and cleaner respectively of the said lorry, have filed this petition to quash the proceedings against them on the ground that they did not commit any offence under the provisions of the Excise Act and even if the allegations in the FIR are all taken to be true, it would not amount to an offence under the Excise Act. ( 3 ) HEARD the learned counsel for the petitioners and the Additional Public prosecutor. ( 4 ) THE documents filed along with the petition show that Renikindi Dattiah and sons consigned 94. 65 quintals of black jaggery worth about Rs. 66,349. 65 ps. from the agricultural Market Committee, Kamareddy on 26-9-2002 by lorry bearing No. AA A. 7222 to Sri Siva Krishna Kiranam, Parkal by paying the necessary market fee under a permit issued by the Market Committee. Way bill issued by the Commercial Tax Department also shows that on 26-9-2002 black jaggery weighing about 650 quintals was being transported in the lorry bearing No. AAA. 7222 from Kamareddy to Parkal to be delivered to sri Siva Krishna Kiranam consigned by renikindi Dattiah and Sons. The bill dated 26-9-2002 shows that Sri Siva Krishna kiranam purchased the said stock. Renikindi dattiah and Sons has a licence, issued by the agricultural Market Committee, Kamareddy to carry on business and also has a Certificate of Registration issued under the A. P. General sales Tax Act. ( 5 ) THE provisions of the Excise Act do not prohibit possession and transport of black jaggery. Renikindi dattiah and Sons has a licence, issued by the agricultural Market Committee, Kamareddy to carry on business and also has a Certificate of Registration issued under the A. P. General sales Tax Act. ( 5 ) THE provisions of the Excise Act do not prohibit possession and transport of black jaggery. The fact that black jaggery is one of the ingredients that would be used in production of illicit arrack by itself is not and cannot be a ground for seizure of the same unless something concrete is established to show that the said black jaggery is or about to be used for preparation of illicit arrack. It is no doubt true that Section 13 (f) of A. P. Excise Act lays down that a person shall not use, keep or be in possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy except under the authority and subject to the terms and conditions of a licence granted by such Officer not below the rank of Excise Superintendent, as may be prescribed, and as per Sec. 34 (e) of excise Act no person should use, keep or be in possession of any material, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy. The fact that the black jaggery is one of the ingredients to be used in the preparation of illicit arrack does not empower the Excise officials seizing the same from the possession of anybody, unless it is specifically known or shown that it is about to be used for preparation of illicit arrack. It should be kept in view that, using or keeping of a material for preparation of or for the purpose of manufacturing intoxicant only is prohibited by Sees. 19 (f) and 34 (e) of Excise act. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. Even assuming that all or some or one of the petitioners had an intention to prepare illicit arrack by making use of the black jaggery being transported, it does not constitute an offence, because mere intention to commit an offence, not followed by any act, cannot constitute an offence. Even assuming that all or some or one of the petitioners had an intention to prepare illicit arrack by making use of the black jaggery being transported, it does not constitute an offence, because mere intention to commit an offence, not followed by any act, cannot constitute an offence. Therefore unless there is some material to show that the black jaggery being transported is about to be used for preparation of illicit arrack, question of petitioners committing an offence empowering the Excise officials seizing the same does not arise. If it is not so since sections 19 (f) and 34 (e) of Excise Actprohibits possession of utensils also for manufacturing of illicit arrack, Excise officials can raid any house or shops selling utensils and seize all the utensils alleging that they can be used in preparation of illicit arrack. That is not the intention of the Legislature. Before the Excise officials seize any of the articles referred to and mentioned in Sections 19 (f) and 34 (e) of excise Act they should be satisfied that they are either being or about to be used in preparation of an intoxicant. They cannot seize stock or material on the assumption that the person from whose possession the stock or material is seized is harbouring an intention to use the same in preparation of an intoxicant. ( 6 ) A reading of the FIR shows that the petitioners, stated that they are unauthorisedly transporting the black jaggery in the lorry without any permit or way bill, which primafacie is incorrect because petitioners produced the way bill and receipts issued by the Agricultural Market Committee and the bills to show the purchase of the stock on 26-9-2002 from the Market committee. Therefore, the theory of unauthorized transport is incorrect. It is not the case of the prosecution that petitioners are habitual offenders and had earlier indulged themselves in preparation of illicit arrack. ( 7 ) HAVING noticed that the Excise officials havebeenharassing the traders and misusing the powers of seizure given to them, the commissioner of Excise issued instructions to his subordinate officials not to seize the black jaggery being transported under avalid permit and way bill. ( 7 ) HAVING noticed that the Excise officials havebeenharassing the traders and misusing the powers of seizure given to them, the commissioner of Excise issued instructions to his subordinate officials not to seize the black jaggery being transported under avalid permit and way bill. Ignoring those instructions, in spite of the petitioners being in possession of all the relevant and necessary documents, the Excise officials, for reasons best known to them, seized the stock and lorry from the petitioners, which clearly indicates the abuse of the power vested in them. This Court in Chenna Balaraju v. State of a. P. throughp. P. Highcourt of Andhrapradesh (Crl. P. No. 3137 of 1998, dated 23-7-1998) and pusala Venkateswara Rao v. State of A. P. through p. P. High Court of Andhra Pradesh (Crl. P. No. 1633 of 2002, dated 23-4-2002),in similar circumstances, quashed the complaint (2002 (2) ALT (Crl.) 176 (A. P.) ). Yet the Excise officials do not seem to have been following the instructions of the Commissioner of excise, and are continuing their harassment of black jaggery traders. ( 8 ) IN view of the ratio in the above two decisions, the FIR against the petitioners is liable to be and is quashed. The black jaggery seized shall be returned to the first petitioner and the lorry bearing No. AAA. 7222 shall be returned to the 5th petitioner. The petition is ordered accordingly.