Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 363 (AP)

Vemula Pitchaiah v. State of Andhra Pradesh

2020-05-19

NINALA JAYASURYA

body2020
ORDER : Ninala Jayasurya, J. 1. Heard and pronounced through Blue Jeans App (Virtual) mode, since this mode is adopted on account of prevalence of COVID-19 pandemic. 2. Heard Sri N.N. Somendra Reddy, learned Counsel for the petitioner and the learned Government Pleader for Home, appearing on behalf of respondents 1 to 4 and with their consent this writ petition is disposed of at the stage of admission. 3. This writ petition is filed, inter alia, seeking to declare the action of the respondents, especially respondent No. 4 in seizing the Tractor and Trailer bearing No. AP 16 BV 2676 and AP 27D 7670, in Crime No. 297/2020 of Kanchikacherla Police Station of Krishna District, without following any procedure known to law as arbitrary, illegal and violative of Articles 14, 19 and 21 of the Constitution of India and consequently to direct respondent No. 4 to release the same from his custody forthwith and to pass such other orders as may deem fit. 4. The petitioner claims that he is the owner of Tractor bearing No. AP 16 BV 2676 and he has been using the same for agricultural purpose and for other purposes by attaching Trailer bearing No. AP 27D 7670 as and when necessary. On 12.4.2020 the petitioner's tractor and trailer was seized by the 4th respondent on the allegation that the above tractor and trailer was ready to transport buska (soil mixed with sand). A Crime No. 297 of 2020 was registered by Kanchikacherla Police under Section 379 read with 34 of Indian Penal Code (IPC) and Sections 27 and 35 of the A.P. Water, Land and Trees Act, 2002 (for brevity 'A.P. WALTA Act'). 5. Learned Counsel for the petitioner states that the case was registered by the police for statistical purpose and that the petitioner did not indulge in any offence. He further contends that the vehicle was given for hire and the petitioner is depending on the income earned from the said vehicle and further the vehicle is required for carrying out agricultural operations by the petitioner and also for other purposes of hiring, more particularly, in view of the peak agricultural season. Learned Counsel also submits that if the vehicle remains in the custody of the 4th respondent, the same would be exposed to sun, air etc., and damaged. Learned Counsel also submits that if the vehicle remains in the custody of the 4th respondent, the same would be exposed to sun, air etc., and damaged. He further submits that as per Section 38 of A.P. WALTA Act, the custody of vehicle can as well be given to the petitioner on executing a bond undertaking to produce the property i.e., Tractor and Trailer before the Court or authorized officer as and when required. Learned Counsel further states that in view of the present situation of COVID-19, the petitioner approached the 4th respondent for grant of interim custody of the Tractor and Trailer, and asserts that since the Jurisdictional Court has not been functioning, but, the 4th respondent has not released the Tractor and Trailer, as a result of which, the petitioner is put to irreparable loss and hardship. Learned Counsel also submits that under the aforementioned facts and circumstances, the petitioner is constrained to approach this Court seeking appropriate orders for release of the vehicle seized by the 4th respondent. 6. Learned Government Pleader for Home, on the other hand, submits that the petitioner has a remedy as per the provisions of the Criminal Procedure Code for release of the vehicle in question under Section 451 of Criminal Procedure Code. He further submits that even as per G.O. Ms. No. 71, dated 4.9.2019, the petitioner can as well seek release of vehicle on payment of penalty as contemplated under the said G.O. 7. The learned Counsel for the petitioner however, submits that buska is not a mineral and as such, the said G.O. is not applicable. He further submits that the Jurisdictional Court has not been functioning as per his instructions and in any event by virtue of Section 38(1) of A.P. WALTA Act, custody can be given to the petitioner by executing a bond as contemplated under the said section and as such he is entitled for the relief sought for. 8. In the light of the submissions made by Counsel for both the parties, the point to be considered is: Whether the vehicle in question can be ordered to be released in terms of Section 38 or by imposing any conditions, if so, on what conditions? 9. 8. In the light of the submissions made by Counsel for both the parties, the point to be considered is: Whether the vehicle in question can be ordered to be released in terms of Section 38 or by imposing any conditions, if so, on what conditions? 9. As per the contention of the learned Counsel for the petitioner, the custody of vehicle can be released on executing a bond as contemplated under Section 38(1) of A.P. WALTA Act, which is extracted for ready reference hereunder: 38. Seizure of property liable of confiscation.- (1) Where there is reason to believe that an offence has been committed in contravention of the provisions of this Act, any instrument, machinery or any other device, vehicles or other conveyance or any other moveable property used or involved in committing any such offence may be seized by an officer as authorised by the Government in this behalf and without any unreasonable delay either produce the property seized before the designated officer or any other officer authorised by the Government in this behalf by notification (hereinafter referred to as the authorised officer) or make a report of such seizure and produce the seizures before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made except where the offender agrees in writing forthwith to get the offence compounded under Section 37 of the Act. Where the property seized is such that it cannot be conveniently transported to the Court or authorised officer as the case may be, give custody thereof to any person on his executing a bond undertaking to produce the property before the Court or authorised officer as and when required and to give effect to the further orders of the Court or authorised officer, as the case may be, as to the disposal of the same. 10. A reading of the second limb of the said section would make it clear that where the property seized is such that it cannot be conveniently transported to the Court or authorized officer as the case may be, the custody of such property can be given to the petitioner on his executing a bond undertaking to produce the property before the Court or authorized officer in terms of the said section. However, such a situation in the considered view of this Court does not exist inasmuch as the property seized is Tractor and Trailer, which cannot be said to be conveniently transported to the Court or authorized officer as the case may be. Therefore, the submission of the learned Counsel with reference to release of vehicle on executing a bond undertaking to produce the property seized in terms of Section 38 of A.P. WALTA Act deserves no consideration. 11. Insofar as the contention of the learned Counsel for the petitioner that G.O. Ms. No. 71, dated 4.9.2019, is not applicable inasmuch as no offence in terms of the Mines and Minerals (Development and Regulation) Act, 1957 or Minerals Concession Rules, 2016, is registered, this Court deems it not appropriate to examine the same, in the absence of the concerned officials of Mines Department being arrayed as party respondents to the present writ petition. 12. Be that as it may, since it was specifically urged that the Jurisdictional Court is not functioning except for very urgent cases, in view of the pandemic, taking note of the same and also considering the submission that the Tractor and Trailer would be subjected to damage, this Court deems it appropriate that a direction can be issued to the 4th respondent to release the vehicle in question by imposing certain conditions. 13. Accordingly, the 4th respondent is directed to release the Tractor and Trailer bearing No. AP 16 BV 2676 and AP 27D 7670 respectively on condition of the petitioner furnishing personal bond for Rs. 1,00,000/- with two sureties for a like sum each to the satisfaction of the 4th respondent. Further the petitioner shall deposit the original R.C. book of the Tractor and Trailer with the 4th respondent and the petitioner shall produce the vehicle in question as and when required in connection with the trial of the offence. The petitioner shall not put the vehicle in question except for agricultural and other allied agricultural purposes. The petitioner shall not tamper with the vehicle in any manner and shall maintain the same in good condition. 14. With the above directions, the writ petition is disposed of As a sequel, all the pending miscellaneous applications, if any, shall stand closed.