Point of law: 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.

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. 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 grant