Research › Search › Judgment

Andhra High Court · body

2021 DIGILAW 540 (AP)

Sai Krishna Pidathala v. State of Andhra Pradesh

2021-08-12

BATTU DEVANAND

body2021
JUDGMENT Heard Sri R. Siva Sai Swaroop, learned counsel for the petitioner and the learned Government Pleader for Prohibition and Excise appearing for the respondents. Perused the material available on record. 2. This writ petition has been filed against the action of the respondents particularly 3rd respondent retaining the vehicle of the petitioner (i.e) Car M/s.RENAULT - KWID RXT 1.0 BS IV bearing registration No.TS 29 H 9863 in the police station without any crime nor any records officially to show the seizure of the vehicle by proper identification through a Registration Number/Chasis Number/Colour, Owner, etc., as illegal, arbitrary, unlawful, against the law and procedure and subsequently to direct the 3rd respondent to return the vehicle to the petitioner, in the interest of justice. 3. The learned counsel for the petitioner submits that the petitioner is the resident of Telangana State and he is doing a private job at Nalgonda District. He is having a motor car M/s.RENAULT - KWID RXT 1.0 BS IV bearing registration No.TS 29 H 9863. There is no any criminal case or any other cases as against the petitioner or against the vehicle of the petitioner. Recently, the Andhra Pradesh police people came to Telangana State and in the absence of the petitioner without having right, they taken away his car without his knowledge. Since then, the petitioner searching for the vehicle and recently he came to know that his vehicle is kept in the 3rd respondent police station. On enquiry, the petitioner came to know that in connection with a case registered under Section 34-A of A.P. Excise Act with regard to the possession of liquor bottles, that vehicle kept in the police station of the 3rd respondent. 4. The learned counsel for the petitioner would submit that 3rd respondent is not showing any document like FIR, mediators report, seizure report, etc., as required under Cr.P.C. to retain the vehicle of the petitioner. Nowhere it was mentioned anything about the vehicle of the petitioner particularly the Registration Number, Chasis Number or Engine Number or Colour or owner name, etc., except saying or mentioning about RENAULT - KWID CAR. In the mediators report the Registration Number of the vehicle or any other particulars of the vehicle are not mentioned. 5. Nowhere it was mentioned anything about the vehicle of the petitioner particularly the Registration Number, Chasis Number or Engine Number or Colour or owner name, etc., except saying or mentioning about RENAULT - KWID CAR. In the mediators report the Registration Number of the vehicle or any other particulars of the vehicle are not mentioned. 5. Learned counsel for the petitioner further submits that the action of the 3rd respondent in retaining the vehicle of the petitioner without any reason for nearly 50 days in the police station causes serious and irreparable loss to the petitioner. The vehicle is being damaged due to exposure to sun and rain for all these days. The vehicle being the personal vehicle and due to the reason that the vehicle is retained by the 3rd respondent, the petitioner is facing serious hardships. 6. Learned counsel for the petitioner relied on a decision of this High Court in K. Veeraprasad Rao and another vs. Commissioner of Prohibition and Excise and another, 2008(1) ALD 740 , 2008(1) ALT 218 to substantiate his contentions. 7. Finally, the learned counsel for the petitioner prays to direct the 3rd respondent to return the car M/s.RENAULT - KWID RXT 1.0 BS IV bearing registration No.TS 29 H 9863 of the petitioner forthwith, in the interest of justice. 8. A counter-affidavit has been filed by the 3rd respondent. 9. Basing on the averments of the counter-affidavit, the learned Government Pleader submits that the petitioner’s vehicle was seized in Crime No.211 of 2021 registered for the offence U/Sec.34-A of A.P. Excise Act, on the file of the Penuganchiprolu Police Station, under the cover of mediators report. In the mediators report due to hurry the details or particulars of the vehicle could not mentioned except the vehicle model name i.e., “KWID Renault”. The car KWID Renault which was kept in the premises of the 3rd respondent was used by the accused for illegal transportation of liquor from Telangana State and the said car is the case property in Crime No.211 of 2021 of Penuganchiprolu Police Station. The learned Government Pleader denied the allegations made by the petitioner in his affidavit and in the submissions of the learned counsel for the petitioner. 10. The learned Government Pleader denied the allegations made by the petitioner in his affidavit and in the submissions of the learned counsel for the petitioner. 10. Learned Government Pleader further submits that while seizing the car, the 3rd respondent questioned the persons, who used the said car, about its ownership particulars and one Bhukya Nila stated that she is the owner of the vehicle. When she was asked about the documents of the car, she replied that papers are not with her and upon that they registered the crime against the persons involved in the crime as well seized the car on the spot with a view to obtain the particulars of the car during the course of investigation. Thereafter, the accused No.2 brought the copies of the vehicle record and then only they noticed other details of the car. 11. Learned Government Pleader finally submits that in Criminal Petition No.4191 of 2021 filed by the accused, this Court was pleased to grant stay of investigation and due to that reason, they could not proceed further in the investigation. The petitioner has filed the present case only on the ground of technical lapses and he never denied the offence and sought to dismiss the writ petition. 12. Having heard the submissions of both the counsel and upon perusal of the material available on record, in the opinion of this Court, it is appropriate to extract the following relevant provisions of law under A.P. Excise Act and the Code of Criminal Procedure, 1973 for proper adjudication of the case: Sections 53 and 59 of A.P. Excise Act: 53. Powers to arrest without warrant, to seize articles liable for confiscation and to make searches. Powers to arrest without warrant, to seize articles liable for confiscation and to make searches. - (1) Any officer of the Government employed in the Prohibition and Excise, Police or [Executive Magistrate or Special Enforcement Bureau] of the State subject to such restrictions as may be prescribed and any other person duly empowered, may,- (a) arrest without warrant any person for an offence punishable under Section 27 or Section 34 or Section 35 or Section 36 or Section 37 or Section 37-A or Section 40-A or Section 50 or Section 50-A; (b) seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act, or and other law for the time being in force, relating to Excise, revenue; and (c) detain and search any person upon whom and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be. 59. Arrest, search etc. how to be made. - Any person arrested under this Act, shall be informed, as soon as may be, of the grounds for such arrest and save as otherwise expressly provided in this Act, the provisions of the Code of Criminal Procedure, 1973 relating to arrests, detention in custody, searches, summonses, warrants of arrests, search warrants, the production of persons arrested and the disposal of things seized, shall apply, as far as may be, to all actions taken in these respects under this Act. Section 102 of the Code of Criminal Procedure: 102. Power of police officer to seize certain property.- (1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.] 13. On careful examination of the above provisions of A.P. Excise Act and the Code of Criminal Procedure, it is clear that any officer of the Prohibition and Excise, Police, Executive Magistrate or Special Enforcement Bureau of the State can detain and search any vehicle. Upon which, he may have reasonable cause to suspect or which may be found under circumstances which create suspicion of the commission of any offence. 14. But, at the time of seizure, they have to conduct Panchanama/mediators report in the presence of the independent mediators. The Panchanama/mediators report shall contain all particulars of the property, articles or vehicle seized in their presence. 15. It appears that in the mediators report drafted on 23.06.2021, which is a basis for registering the case in Crime No.211 of 2021 of Penuganchiprolu Police Station nowhere the particulars of the vehicle seized by them for the alleged violation of the Excise Act is mentioned. In the mediators report it is mentioned as “KWID Renault car”. The particulars of the car (i.e.) (1) Registration Number; (2) Colour of the car; (3) Chasis Number of the car; (4) Engine Number of the car, etc., are not mentioned in the mediators report. This Court noticed from the mediators report that the persons, who acted as mediators at the time of drafting the mediators report, are no other than the Village Revenue Officer and Village Revenue Assistant. As per the procedure provided for conducting the inspection and seizure and for drafting mediators report, the independent and respectable persons of that locality have to be taken as mediators. 16. In the counter filed by the 3rd respondent it is admitted that due to hurry, he could not mention the details or particulars of the vehicle involved in the crime. 16. In the counter filed by the 3rd respondent it is admitted that due to hurry, he could not mention the details or particulars of the vehicle involved in the crime. Without any identification of the vehicle which is involved in the alleged crime and in the absence of any incriminating material against the petitioner or his vehicle, retaining the vehicle of the petitioner in the 3rd respondent police station for nearly 50 days is illegal, unjust and against to the principles of natural justice and it violates the fundamental rights of the petitioner guaranteed under the Constitution of India. 17. In K. Veeraprasada Rao’s case (1 supra) relied by the learned counsel for the petitioner, this Court held that; “When no incriminating material is found in a vehicle it cannot be seized or confiscated on the basis that it was earlier used for transporting or carrying the contraband found elsewhere. Since the panchanama extracted above does not disclose that any incriminating material was found in the tractor or trailer at the time of search, even assuming that the tractor and trailer were used for transporting the articles found in the hut, where illicit transaction was being carried on by others, the tractor and trailer of the petitioners are not liable for seizure or confiscation inasmuch as Section 45 of the Act being a penal provision, it has to be strictly construed and the benefit should be given to the subject. So, the respondents erred in ordering confiscation of the tractor and trailer of the petitioners.” 18. Though there is no any different opinion about the ratio laid down in the said Judgment, in our opinion the facts and circumstances in the said case and in the present case are entirely different. 19. Accordingly, this writ petition is allowed directing the 3rd respondent to return the Car M/s.RENAULT - KWID RXT 1.0 BS IV bearing registration No.TS 29 H 9863 to the petitioner forthwith in running condition. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this case shall stand closed.