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2020 DIGILAW 589 (AP)

Shaik Anwar Basha v. State Of Andhra Pradesh

2020-09-08

M.SATYANARAYANA MURTHY

body2020
JUDGMENT M.Satyanarayana Murthy, J. - This writ petition is filed under Article 226 of the Constitution of India, questioning the direction issued by the third respondent/Superintendent of Police, Kurnool, vide proceedings Rc.No.35/2020 dated 11.08.2020 demanding this petitioner to deposit Fixed Deposit Receipt (FDR) for an amount of Rs.13,00,000/- taken in the name of the third respondent to release the seized vehicle bearing No.AP 21 TZ 8829 and declare the same as illegal, arbitrary and consequently, direct the third respondent to release the seized vehicle without insisting any security. 2. The petitioner is the owner of the lorry bearing No.AP 21 TZ 8829. On 11.07.2016, the petitioner purchased the lorry by taking loan from Sriram Transport Finance Company Limited. He hired one lorry driver by name Ediga Ramesh and a cleaner one Nagipogu Venkata Swamy for maintaining the vehicle and for transporting the goods from one place to another place. While the matter stood thus, on 08.06.2020 at 6:30 a.m, while the driver and cleaner were carrying iron rods in lorry from Medchal to Nandyal, the fourth respondent/Station House Officer, Nandyal Taluk Police Station intercepted the vehicle and on inspection, found MacDowell 1/2 bottle (375 ML), Two bottles of Imperial Blue and two bottles of Mansion House in a black plastic cover. Immediately, the fourth respondent seized the vehicle along with the bottles and without affording any opportunity to the driver and cleaner of the vehicle to explain the same. On the basis of police proceedings, registered a case in Crime No.431 of 2020 on 08.06.2020 for the offences punishable under Section 34A of Andhra Pradesh Excise Act (for short 'Excise Act'), 1968 and Section 8(b)(1) of Andhra Pradesh Prohibition Act, 1995 (for short 'Prohibition Act') and issued F.I.R. 3. It is further contended that the police proceedings dated 08.06.2020 and the F.I.R. are frivolous and contrary to the principles of natural justice. Seizure of the vehicle under police proceedings is a serious illegality. However, the petitioner filed W.P.No.10462 of 2020 before this Court for issue of direction to the third respondent to release the vehicle bearing No.AP 21 TZ 8829 in Crime No.431 of 2020 of Nandyal Taluq Police Station. Seizure of the vehicle under police proceedings is a serious illegality. However, the petitioner filed W.P.No.10462 of 2020 before this Court for issue of direction to the third respondent to release the vehicle bearing No.AP 21 TZ 8829 in Crime No.431 of 2020 of Nandyal Taluq Police Station. W.P.No.10462 of 2020 was disposed of directing the petitioner to approach the statutory authority in terms of the law as it exists and seek release of the vehicle, and the statutory authority shall, within seven days, deal with the matter by passing a speaking order from the date of receipt of the order. On receipt of the order, the third respondent issued notice to the petitioner vide proceedings in Rc.No.35/2020 dated 11.08.2020 insisting the petitioner to produce various documents furnishing bank guarantee by deposit of F.D.R worth Rs.13,00,000/- drawn on any nationalized bank i favour of the third respondent. It is contended that the value of the seized vehicle is only Rs.10,00,000/- as on date and the stock seized from the vehicle is worth Rs.8,850/-, thereby, insisting the petitioner to furnish security for Rs.13,00,000/- for deposit of FDR with the third respondent is unjust and illegal. It is further contended that the petitioner obtained loan from Sriram Finance Private Limited and the petitioner has to discharge monthly instalments of loan by running the vehicle while carrying on transport business. On account of seizure of the vehicle, it is lying in the custody of the police and the petitioner is struggling to eke-out his livelihood, besides failure to pay the loan dues to the finance company. Hence, the petitioner requested this Court to setaside the condition to deposit the FDR worth Rs.13,00,000/- drawn on any nationalized bank with the third respondent as illegal, arbitrary and consequently direct the third respondent to release the vehicle as interim custody. 4. During hearing, learned Assistant Government Pleader for Prohibition & Excise appearing on behalf of the third respondent, did not file any counter, but advanced arguments. 5. During hearing, Smt. Elipe Shanthasree, learned counsel for the petitioner contended that, imposing such restriction to deposit FDR worth Rs.13,00,000/- is penal in nature and that too, the value of the seized vehicle is only Rs.10,00,000/-. 5. During hearing, Smt. Elipe Shanthasree, learned counsel for the petitioner contended that, imposing such restriction to deposit FDR worth Rs.13,00,000/- is penal in nature and that too, the value of the seized vehicle is only Rs.10,00,000/-. Therefore, insisting to deposit FDR for Rs.13,00,000/- is an arbitrary exercise of power by the third respondent and such arbitrary exercise virtually amounts to denial of relief i.e. return of the vehicle or interim custody of the vehicle during pendency of the criminal proceedings. Hence, requested to issue a direction to the third respondent to release the vehicle, setting-aside the condition referred above. 6. Whereas, learned Assistant Government Pleader for Prohibition & Excise contended that, the Deputy Superintendent of Police, Prohibition & Excise is the competent officer to issue direction, as the third respondent has got power to confiscate the property to the State either under Excise Act or Prohibition Act. Though no power is conferred on the Superintendent of Police/third respondent for grant of interim custody of the vehicle, the Deputy Commissioner granted relief. In case, the accused are found guilty, the property is to be confiscated to the State. If the interim custody of the vehicle is given to this petitioner without insisting security for production of the vehicle for ordering confiscation to the State, there is no possibility of producing the vehicle in future and release the amount to the State and such power would remain as a provision in the Statute without any effective implementation and placed reliance on P. Swarupa vs. State of Andhra Pradesh, (1995) 3 ALD 1090 (DB) and requested to dismiss the writ petition. 7. There is no dispute regarding registration of crime for the offence punishable under Section 34A of the Excise Act and Section 8(b)(1) of the Prohibition Act in Crime No.431 of 2020 on the file of Nandyal Taluq Police Station. Seizure of both vehicle and contraband i.e. MacDowell 1/2 bottle (375 ML), Two bottles of Imperial Blue and two bottles of Mansion House in a black plastic cover from the cabin of the vehicle, during inspection of the vehicle. Further, the vehicle was driven by lorry driver by name Ediga Ramesh and a cleaner one Nagipogu Venkata Swamy. The same is evident from the police proceedings which is the basis for registration of a crime and issue of F.I.R against lorry driver Ediga Ramesh and cleaner Nagipogu Venkata Swamy. Further, the vehicle was driven by lorry driver by name Ediga Ramesh and a cleaner one Nagipogu Venkata Swamy. The same is evident from the police proceedings which is the basis for registration of a crime and issue of F.I.R against lorry driver Ediga Ramesh and cleaner Nagipogu Venkata Swamy. Similarly, W.P.No.10462 of 2020 was disposed of by this Court on 17.07.2020 directing the third respondent as follows: "the writ petition is disposed of directing the petitioner to approach the statutory authority in terms of the law as it exists and seek release of the vehicle, and the statutory authority shall, within seven days, deal with the matter by passing a speaking order." 8. In pursuance of the direction referred above issued by this Court, the impugned notice in Rc.No.35/2020 dated 11.08.2020 was issued. The petitioner is not disputing Condition Nos. 1 to 5, but challenging Condition No.6 of the impugned notice, which reads as follows: "Fixed Deposit Receipt for an amount of Rs.13,00,000/- (Rupees Thirteen Lakhs Only) from any National Bank in the name of Superintendent of Police, Kurnool for the value of seized Goods Carriage, as assessed by the Motor Vehicle Inspector, Nandyal." 9. The main contention of the petitioner is that, imposing such onerous condition virtually amounts to denial of relief to this petitioner and if, for any reason, the case is ended in acquittal after full-fledged trial after some time, if the vehicle is allowed to expose to sun and rain, it will become derelict and useless, since the third respondent is not taking care of the vehicle for its preservation in good condition, thereby, substantial damage will be caused to this petitioner in case the vehicle is allowed to be in the custody of the third respondent and requested to set-aside Condition No.6 in the impugned notice and release the vehicle. 10. Whereas, learned Assistant Government Pleader for Prohibition & Excise contended that, the Deputy Commissioner shall get the vehicle valued and insist for security for release of the vehicle or granting interim custody of the vehicle under Andhra Pradesh Prohibition and Excise Act under the relevant laws. Simply the third respondent followed the procedure laid down by the Full Bench and Division Bench of this Court and insisted for furnishing security in Condition No.6 of the notice impugned in the writ petition and it is in accordance with law. 11. Simply the third respondent followed the procedure laid down by the Full Bench and Division Bench of this Court and insisted for furnishing security in Condition No.6 of the notice impugned in the writ petition and it is in accordance with law. 11. On a bare look at the provisions of Prohibition Act and Excise Act, though Deputy Commissioner is competent to order confiscation of the property seized in connection with the cases under the Act after concluding criminal proceedings, no power appears to have been given to the petitioner for grant of interim custody of the vehicle. 12. In a similar situation, the Apex Court in State (NCT of Delhi) v. Narender (Criminal Appeal No.25 Of 2014 dated 06.01.2014) while dealing with the provisions of Delhi Excise Act and Delhi Prohibition Act, held as follows: ".......On production of the seized property, the Deputy Commissioner, if satisfied that the offence under the Act has been committed, may order confiscation of such property. Therefore, under the scheme of the Act any vehicle used for carrying the intoxicant is liable to be confiscated and on seizure of the vehicle transporting the intoxicant, the same is required to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation. 23..........The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under CrPC has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided. 24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate." 13. The provisions of Delhi Excise Act, 2009 are almost identical to the Andhra Pradesh Excise Act. If, the principle laid down in the above judgment is applied to the present facts of the case, ordering to release the vehicle by the third respondent is in accordance with law. The petitioner only questioned Condition No.6 of the notice impugned in this writ petition, which is extracted above, since it is an onerous condition. 14. No doubt, it appears to be an onerous condition, but when such power is conferred on the third respondent to order confiscation of the vehicle after termination of the criminal proceedings, if for any reason, the vehicle is not produced, the ultimate loser is the State and this power conferred on the third respondent will remain only on the statute book which cannot be enforced effectively by the third respondent conferment of such power by provisions will become redundant or otiose. In those circumstances, the third respondent may insist security for production of the vehicle after termination of the criminal proceedings against the accused, if the Trial Court found them guilty for the offences, so as to enable the third respondent to order confiscation of the property to the State. Therefore, insisting security for grant of interim custody of the vehicle or release of the vehicle as interim custody during pendency of the investigation or calendar case before the competent court is not an illegality. On the other hand, it is only to protect the interest of the State. Hence, I find that insistence of security from the petitioner is not an illegality. 15. On the other hand, it is only to protect the interest of the State. Hence, I find that insistence of security from the petitioner is not an illegality. 15. Condition No.6 imposed to deposit FDR worth Rs.13,00,000/- appears to be unjust and unreasonable, since it is difficult to furnish the security amid Covid-19 by a small transport operator. Therefore, to meet the ends of justice, Condition No.6 imposed by the third respondent is modified as follows: "The petitioner shall furnish immovable property security by executing a bond in favour of the third respondent/Superintendent of Police, Kurnool or for the value of the vehicle, as estimated by the Motor Vehicle Inspector, Nandyal." 16. The third respondent is directed to get the vehicle valued by Motor Vehicle Inspector, Nandyal in the presence of the petitioner after serving a notice to the petitioner and on fixing value of the vehicle by the Motor Vehicle Inspector, the petitioner is directed to furnish immovable property security by executing a bond in favour of the third respondent, strictly adhering to the Stamp and Registration laws, as per the value fixed by the Motor Vehicle Inspector and on production of such immovable property as security, the third respondent/Superintendent of Police, Kurnool is directed to release vehicle No.AP 21 TZ 8829 as interim custody. 17. With the above direction, writ petition is disposed of. No costs. 18. Consequently, miscellaneous applications pending if any, shall stand closed.