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Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
S.Kareemulla - Appellant
Versus
Prohibition and Excise Sub-Inspector, Nandyal - Respondent
Decided On : 11-01-95
CRIMINAL PROCEDURE CODE - SECTION 451 - EXCISE ACT - SECTION 46-E - PROHIBITION ACT - SECTIONS 12, 13, 14, 31 - INTERPRETATION - VEHICLES SEIZED FOR OFFENCES - RELEASE PENDING ENQUIRY, INVESTIGATION OR TRIAL - POWERS OF MAGISTRATE, COURT AND EXCISE AUTHORITIES - CONDITIONS FOR RELEASE - EXERCISE OF POWERS UNDER ARTICLE 226 OF THE CONSTITUTION.
Fact of the Case:
Batch of writ petitions challenging the seizure of vehicles by the Excise authorities for an alleged offence under Section 34(a) of the Andhra Pradesh Excise Act, seeking release of the vehicles pending prosecution and confiscation proceedings.
Finding of the Court:
1. Magistrate or Court has the power to release the vehicle seized for an offence under Section 34 of the Excise Act or any other law, including the Prohibition Act, pending enquiry, investigation or trial, by virtue of Section 451 Cr.P.C., unless barred by any specific provision. 2. Section 46-E of the Excise Act bars the jurisdiction of the Court to entertain any application in respect of excisable articles seized under the Act, but it does not bar the jurisdiction of the Magistrate to pass an order for interim custody under Section 451 Cr.P.C. 3. Under the Prohibition Act, both the Magistrate and the Prohibition Officer have concurrent powers to pass an order for the interim custody of vehicles seized for an offence, under Sections 13 and 14 of the Act. 4. The powers of the Magistrate or Court to release the vehicle are superior and primary as against the powers of the Prohibition Officer. 5. The Magistrate or Court should normally pass an order for interim custody of the vehicle seized, unless there are extraordinary circumstances or reasons to be recorded in writing. 6. The High Court has the power to release the vehicle under Article 226 of the Constitution, but it should not exercise this power in cases where other Courts and authorities have the power to grant such relief, unless there are special circumstances.
Issues: 1. Whether the vehicles seized for an offence under Section 34 of the Excise Act or any other law can be released pending enquiry, investigation or trial? 2. If so, by whom, the vehicle can be released viz. (a) by the High Court under Article 226 of the Constitution of India or under Section 482 Cr.P.C; (b) by the Court or the Magistrate having jurisdiction over the subject matter and to try the offence regarding which the vehicle is seized; (c) by the authorities dealing with confiscation proceedings either under the provisions of the Excise Act or the Prohibition Act? 3. If so, under what provision and on what terms?
Ratio Decidendi: 1. The powers of the Magistrate or Court to release the vehicle seized for an offence under Section 34 of the Excise Act or any other law, including the Prohibition Act, pending enquiry, investigation or trial, by virtue of Section 451 Cr.P.C., are not barred by Section 46-E of the Excise Act. 2. Under the Prohibition Act, both the Magistrate and the Prohibition Officer have concurrent powers to pass an order for the interim custody of vehicles seized for an offence, under Sections 13 and 14 of the Act. 3. The powers of the Magistrate or Court to release the vehicle are superior and primary as against the powers of the Prohibition Officer. 4. The Magistrate or Court should normally pass an order for interim custody of the vehicle seized, unless there are extraordinary circumstances or reasons to be recorded in writing. 5. The High Court has the power to release the vehicle under Article 226 of the Constitution, but it should not exercise this power in cases where other Courts and authorities have the power to grant such relief, unless there are special circumstances.
Final Decision: All the writ petitions were allowed. The petitioners were directed to make applications before the concerned Judicial Magistrates or the authorities concerned for release of the vehicles subject to the orders to be passed by such Courts or the authorities in accordance with law. The applications were to be disposed of within 15 days from the date of the application, after hearing the Government Pleader or the Public Prosecutors representing the State.
( 1 ) THIS batch of writ petitions, involving common questions of law and most of the facts having been admitted are heard on merits as proposed by the learned Advocates both for the petitioners and the respondents, and are being disposed of by means of this common judgment on merits.
( 2 ) THE vehicles, said to be belonging to the petitioners, were seized by the first respondent for an alleged offence under Section 34 (a) of the Andhra pradesh Excise Act and they are said to have been before the Deputy commissioner of Excise for initiating confiscation proceedings in accordance with law. Sec. 46 (2) of the A. P. Excise Act. The propriety of the seizure of the vehicles is being assailed on the grounds of illegality, arbitrariness and unjustifiable basis. The petitioners have also sought for release of the vehicles pending any prosecution for the alleged offences and the confiscation proceedings if initiated. The particulars of the vehicles seized in particular proceedings and lying before the particular authority for confiscation are as herein:
Sl. No.
W. P. No.
Vehicle No.
p. r. no.
Cr. No.
Name of the authority before whom the vehicle is produced for confiscation
(1)
(2)
(3)
(4)
(5)
1.
W. P. 23179 of 1995
AP 13 T 7192
16/95-96
Dy. Commissioner of Excise
2.
W. P. 23205 of 1995
Bajaj Chetak No. AP-23-4158
148/94-95
Dy. Commissioner of Excise
3.
WP. 23213 of 1995
Scooter A. P. 16-G-9143
145/94-95
4.
W. P. 23217 of 1995
Bajaj Chetak No. AES-54
112/94-95
5.
W. P. No. 23218 of 1995
AP28-B 8846 (Hero Honda)
111/94-95
6.
W. P. No. 23510 of 1995
Scooter No. AP 11-181
2/95-96
7.
W. P. No. 23652
Suzuku Regn. No. AP22-C-458
.
"
8.
W. P. No. 23684 of 1995
Vehicle Bearing No. APG-96-2569
.
"
9.
W. P. No. 23702 of 1995
MH. 02/j 5058 Zeep
317/94-95
"
10.
W. P. No. 23703 of 1995
Scooter AP 11 A-8593
150/94-95
"
11.
W. P. No. 23717 of 1995
Scooter AHX 2849
191/94-95
12.
W. P. No. 23349 of 1995
B. Chetak AP 238213
2/95-96
( 3 ) THE contention of the learned Counsels for the petitionersin all the cases is that no offence can be made out under Section 34 (a) of the Excise Act and actually it could be an offence under the provisions 7,8 and 11 of the Andhra pradesh Prohibition Act and that the case has been registered under Sec. 34 (a) of the Excise Act having due regard to certain serious implications flowing therefrom depriving the benefit to the petitioners in regard to the release of the vehicles, quantum of punishment and other consequences. It is also contended that having registered the case under Section 34 of the Excise Act, the Excise authorities are contemplating to deprive the petitioners of the release of the vehicles pending prosecution and confiscation in view of the bar under sec. 46-E of the Excise Act, although they have certain rights under the provisions of Prohibition Act in regard to the release of the vehicles. They have further contended that even assuming that the authorities, either under the excise Act or the Prohibition Act, are unable to release the vehicles for any reason, this Court has power to release the vehicles under Article 226 of the constitution of India. The learned Advocate for the petitioner in W. P. No. 23213 of 1995 has contended that the learned Magistrate before whom an application was filed for release of the vehicle of the petitioner was not right in dismissing the petition, although he had powers to release it and although the petitioner had merits to get his vehicle released. As a whole, the learned Advocates for the petitioners in all the cases seek a direction to the Excise authorities - Deputy commissioner of Excise, who is one of the respondents in all the cases to release the vehicles by imposing certainconditions which they are prepared to comply. The learned Government Pleader for Prhobition and Excise while opposing all the petitions very strongly, has contended that the Excise authorities have all the powers and discretion to register the offence under Section 34
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