ORDER:

Accused Nos.1, 3 and 4 in Crime No.81 of 2022 of Bangarupalem Police Station, Chittoor District, filed this Criminal Petition under Section

438 of Criminal Procedure Code.

2. The case of the prosecution, in brief, is that the accused involved in transporting banned Gutka products and 192 Silver Cup VSOP Indian Brandy from Karnataka, illegally, without valid documents. The incident said to have occurred on 24.04.2022 at 04.00 p.m. at Paleru flyover under bridge on Palamaner to Chittoor NH 69 Road, Bangarupalem Mandal, Chittoor District. The Sub-Inspector of Police, Bangarupalem Police Station arrested A2, A5 and A6 and seized tobacco products along with two boxes of Silver Cup VSOP Indian Brandy of 180 ml., total 96 tetra packets from their custody. As per confession statements of the Accused, A2, A5 and A6, with the active assistance and abatement of A1, A3 and A4, are transporting Karnataka State liquor and tobacco products. In the present incident, they were caught by the Police while they were transporting the said products in Bolero Maxi Truck Plus KA 13 B 8051 and Bolero Pik-Up FBKA 51 AD1716, in carton boxes, accompanied by fake bills. Hence, police registered above crime for the offences punishable under Section 468, 471 & 420 r/w 34 of Indian Penal Code, Section 34(1)(i) r/w 34(a), 11, 42(a) of Andhra Pradesh Excise Act AND Section 24(1) r/w COTP Act.

3. Heard learned counsel for the petitioners Sri Raja Reddy Koneti and Sri Soora Venkata Sainath, the learned Special Assistant Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioners would contend that transportation of liquor shall not constitute the offence under Section 34 of Andhra Pradesh Excise Act. He also would contend that confession of the accused cannot be relied upon. The very procedure is contrary to Section 55 of Andhra Pradesh Excise Act. He also would contend that the prosecution did not mention the Serial Numbers of the stocks seized. Hence, he seeks for granting of anticipatory bail.

5. Learned Special Assistant Public Prosecutor while opposing the petition would contend that A2, A5 and A6 are instrumental in transporting liquor and tobacco products, with fake bills, at the instance of A1, A3 and A4 and hence, they are not entitled for anticipatory bail. Hence, prayed to dismiss the petition.

6. I have perused the entire record and given anxious consideration to the material therein and to the contentions of the both the counsel.

7. It is contended by the learned counsel for the petitioners that provisions of Section 34(a) of the Andhra Pradesh Excise Act, 1968 would not apply to the facts of this case. Section 34 (a) of the Andhra Pradesh Excise Act, reads as under:

“34. Penalties for illegal import etc. - Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,-

(a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; …..”

8. In this case on hand, as per the prosecution, A1 is personally transporting the contraband to A3 and A4 through the Drivers with fake bills and hence the contention of the learned counsel for the petitioners that Section 34 of the Andhra Pradesh Excise Act does not apply falls to ground.

9. It is also contended by the learned counsel for the petitioner that seizure of the material the Police is contrary to Section 55 of the Andhra Pradesh Excise Act. The said Section reads as under:

“55. Power to search without warrant. - Whenever the Commissioner or a Collector [or Executive Magistrate] or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without