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2020 DIGILAW 704 (TS)

Kore Raju v. State of Telangana

2020-09-29

P.NAVEEN RAO

body2020
ORDER : P. Naveen Rao, J. 1. Heard learned Counsel for the petitioner and learned Assistant Government Pleader for Prohibition and Excise. 2. Petitioner claims to be the owner of JCB vehicle bearing Registration No. TS-07-GG-2851 having purchased the same in the year 2018 and has a hire purchase agreement with the private finance company. According to petitioner, his vehicle was hired by person, by name, Goundla Manikyam Goud @ Ediga Manikyam, who is the owner of land in Survey No. 224 of Yettla Erravelly Village, Shabad Mandal, to level his land. Accordingly, vehicle was sent with his driver to the fields for excavation/cleaning of agricultural land on 18.5.2020. According to petitioner, even before the vehicle entered the land of Mr. Manikyam, it appears, the toddy trees were already uprooted and a galata was taking place and the petitioner's vehicle was not allowed to enter into the land. However, brother of pattedar and his children filed a complaint with the Sub-Inspector, Prohibition and Excise Station, Chevella, alleging that four Shendi Trees were uprooted by using the JCB Vehicle. Accordingly, Crime No. 29 of 2020 was registered on 18.5.2020 under Section 27 read with 40 of the Telangana Excise Act, 1968 (for short, 'the Act') by respondent No. 5. Confiscation proceedings initiated against the petitioner resulted in order of confiscation of the vehicle of the petitioner dated 14.9.2020. In this writ petition, petitioner challenges the said order of confiscation. 3. When the writ petition is taken up for consideration, learned Assistant Government Pleader representing the Excise Department raised preliminary objection on the maintainability of the writ petition on the ground that against the order of confiscation made by the Deputy Commissioner, Prohibition and Excise, remedy of appeal is available before the Commissioner of Prohibition and Excise and without availing the said remedy, this writ petition is not maintainable. 4. 4. In response to this objection, learned Counsel for the petitioner made three-fold submissions to contend that petitioner need not be compelled to avail the remedy of appeal as the order under challenge is ex facie illegal: (i) Firstly, he contended that Section 46(6) of the Act requires that procedure envisaged in Civil Procedure Code, 1908 to hear a civil case should be observed in full in the confiscation proceedings, whereas except issuance of show-cause notice and calling for explanation that procedure was not followed and therefore the entire proceedings are vitiated on that ground. (ii) Secondly, he submits that Section 27 of the Act prohibits cutting down or destroying excise trees. Section 40 of the Act prescribes imposing penalty if Section 27 of the Act is violated. He submits that a reading of Sections 27 and 40 of the Act would make it clear that punishments that can be imposed are in personam to the individuals and these provisions do not deal with the seizure and confiscation of the vehicles. Therefore, confiscation of the vehicle is ex facie illegal. (iii) Thirdly, learned Counsel for the petitioner further submits that earlier petitioner filed W.P. No. 8406 of 2020 against the notice issued on 11.6.2020 directing the petitioner to produce/surrender his JCB Vehicle. This Court disposed of the said writ petition by order dated 18.6.2020 directing the Deputy Commissioner to release JCB Vehicle on petitioner furnishing fixed deposit receipt for a sum of Rs. 25,000/-. In compliance of the said directions, petitioner has obtained fixed deposit for a sum of Rs. 25,000/- and produced the same before the competent authority. After the directions of this Court, possession of the vehicle was sought to be taken and then realizing that the vehicle cannot be kept in custody in view of the orders of the Court, orders are passed on 12.9.2020 to release the vehicle. However, by the time the proceedings were served, confiscation orders were passed, thereby subverting the orders of this Court. Without granting interim custody, it is illegal to order confiscation of the vehicle. 5. Learned Assistant Government Pleader submits that Section 45 of the Act deals with liability of certain things to confiscation. According to this section, if an offence is committed, things mentioned in the section are liable for confiscation. One of the items mentioned is "materials". Without granting interim custody, it is illegal to order confiscation of the vehicle. 5. Learned Assistant Government Pleader submits that Section 45 of the Act deals with liability of certain things to confiscation. According to this section, if an offence is committed, things mentioned in the section are liable for confiscation. One of the items mentioned is "materials". The word "materials" has a very wide connotation and includes a, motor vehicle. Where motor vehicle is used for committing an office, it is liable for confiscation. In the instant case, vehicle of the petitioner was used to destroy excise trees and therefore the vehicle is liable for confiscation. 6. It is not in dispute that Section 46-C of the Act provides remedy of appeal against the order of confiscation made under Section 46 of the Act by the Deputy Commissioner of Prohibition. It is not the case of the petitioner that such remedy is not efficacious/effective. Thus, ordinarily writ Court does not entertain the writ petition when an efficacious/effective remedy is available to an aggrieved person and subjects such person to avail the remedy. 7. Therefore, it is necessary to test whether the order of the Deputy Commissioner confiscating the vehicle is ex facie illegal so as to entertain the writ petition without relegating the petitioner to avail remedy of appeal. 8. The excise trees from where toddy is harvested are also grown in lands owned by individuals, in addition to Government lands. Toddy tapping and sale of toddy is the main source of livelihood for Gouda Community. Having noticed that the excise trees standing on private lands are felled indiscriminately, affecting the lives of the Gouda Community, cutting of excise trees is prohibited even in private lands. Section 27 of the Act imposes such prohibition. Section 40 of the Act prescribes penalties for cutting down and destroying excise trees. To make the penal provisions more stringent, under Section 45 of the Act the material used to violate the prohibition imposed by the Act is made liable for confiscation. Thus, if a thing is used to cut excise tree, that material is liable for confiscation. In the instant case, the allegation is JCB machinery was used to cut excise trees. Thus, in addition to penal action against persons involved in cutting excise trees, the machinery used to remove the excise trees is liable for confiscation. 9. Thus, if a thing is used to cut excise tree, that material is liable for confiscation. In the instant case, the allegation is JCB machinery was used to cut excise trees. Thus, in addition to penal action against persons involved in cutting excise trees, the machinery used to remove the excise trees is liable for confiscation. 9. Having regard to the provisions contained in Section 45 of the Act, noted hereinabove, it is no more open to contend that petitioner's vehicle cannot be subjected to confiscation proceedings in addition to the persons involved in committing crime. The provision in Section 45 of the Act is explicit. The confiscation proceedings initiated against the petitioner's vehicle are not vitiated on the ground urged by learned Counsel for the petitioner. 10. Section 46 of the Act provides for mechanism for undertaking confiscation proceedings and passing orders for confiscation. In the process of exercising powers to confiscate a vehicle involved in the offence prescribed in the Act, it is open to the Deputy Commissioner of Prohibition and Excise to follow the procedure envisaged by the Code of Civil Procedure, 1908 to receive evidence on affidavits, summon and enforce the attendance, examine him on oath and compel the production of documents. From the plain reading of Section 46(6) of the Act and in the overall scheme of the Act, it is clear that in the process of conducting confiscation proceedings, it enables the Deputy Commissioner to adopt the procedure prescribed in the Code of Civil Procedure, whenever required, on matters mentioned therein. It is an enabling provision and it is for the Deputy Commissioner to adopt appropriate procedure as required in a given case. Further, it is apparent from Section 46 of the Act that what is required by the Deputy Commissioner is to follow the rule of audi alteram partem. These are summary proceedings. Petitioner seeks to elevate the status of those proceedings to that of regular civil Court proceedings. 11. Herein, it is not the case of the petitioner that he was not given reasonable opportunity. Petitioner was served show-cause notice, he responded to the same and filed his explanation and on due consideration of the explanation offered by the petitioner, a reasoned order was passed confiscating the vehicle. The rule of audi alteram partem was observed before passing the order. Petitioner was served show-cause notice, he responded to the same and filed his explanation and on due consideration of the explanation offered by the petitioner, a reasoned order was passed confiscating the vehicle. The rule of audi alteram partem was observed before passing the order. Petitioner cannot say that a procedural provision which vests discretion in the competent authority is to be mandatorily applied and non-observance of that procedure vitiated the order. Further, petitioner miserably failed in satisfying the Court as to how prejudice was caused to him. Thus, the said contention is rejected. 12. This leaves consideration of the last submission. It is not disputed by learned Counsel for the petitioner that by the time petitioner instituted WP No. 8406 of 2020 his vehicle was not confiscated. However, it appears from the reading of operative portion of the order that the Court assumed that the vehicle was already seized and issued direction to release the vehicle on furnishing the fixed deposit for a sum of Rs. 25,000/-. Petitioner has not taken steps to bring to the notice of the Court that by the time the order was passed by this Court the vehicle was not seized and was in his custody only. Since there was a direction to release the vehicle, the respondent authorities directed the petitioner to surrender the vehicle and agreed to release the vehicle on furnishing the fixed deposit for a sum of Rs. 25,000/-. Accordingly, orders were passed granting interim custody after petitioner furnished the fixed deposit receipt. Learned Counsel for petitioner sought to contend that as order granting interim custody was actually served on the same day when confiscation order was made, the confiscation is vitiated. 13. Issue of interim custody of vehicle pending confiscation proceedings has no bearing on confiscation proceedings. Order granting interim custody is valid till the confiscation proceedings are finalized. In the case on hand simultaneously, the confiscation proceedings were taken up. The show-cause notice was issued on 25.8.2020. On 31.8.2020, petitioner submitted his explanation and on 14.9.2020, confiscation orders were passed. Assuming that there were lapses in granting interim custody of the vehicle, it has no bearing on the confiscation proceedings. 14. Thus, all the three objections raised by learned Counsel for the petitioner are not sustainable and do not come to the rescue of the petitioner to circumvent the remedy of appeal and to institute this writ petition. Assuming that there were lapses in granting interim custody of the vehicle, it has no bearing on the confiscation proceedings. 14. Thus, all the three objections raised by learned Counsel for the petitioner are not sustainable and do not come to the rescue of the petitioner to circumvent the remedy of appeal and to institute this writ petition. 15. Against order of confiscation, petitioner has statutorily engrafted remedy of appeal before the Commissioner of Prohibition and Excise under Section 46-C. Since the said remedy is an efficacious and effective remedy, the Court is not inclined to entertain the writ petition filed without availing the said remedy. Thus, the writ petition is dismissed leaving it open to the petitioner to avail the remedy of appeal, if so advised. It is made clear that there is no expression of opinion on merits. Pending miscellaneous petitions shall stand closed.