HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.18802 OF 2011
ORDER:
The present Writ Petition is filed by the petitioner under Article
- 226 of the Constitution of India seeking the following relief:
"....pleased to issue an appropriate writ or order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to Cr.No.15828/2010/CPE/D4, dt.01.02.2011 and also order dt.10.06.2011 in C.R.No.15949/CPE/D4 issued by the 1st respondent herein whereby confirming the orders passed by the 2nd respondent dt.18.09.2010 in Cr.No.C6/B2/4423/2003/ DCRR in confiscating the DCM Van bearing No.AP 12U 4581 and quash the same by declaring the aforesaid orders as illegal, arbitrary and violative of principles of natural justice and pass such other order or orders....
2. Heard Mr. A. Prabhakar Rao, learned counsel for the petitioner and the learned Government Pleader for Prohibition and Excise appearing on behalf of respondents.
3. FACTS:
i) On credible information received by the Raidurgam Police Station that one DCM Vas was moving in suspicious manner, on 18.09.2003, Police Constable (PC 2953) proceeded to Nanakramguda and at about 4.30 P.M. on seeing him, C. Ashok Singh, Sayeed Yakub and Mahamood Ali tried to ran way by leaving the DCM Van bearing registration No.AP 27U 4581. However, the police apprehended the said persons and seized the property viz., (a) DCM Van bearing No.AP 12U 4581; (b) 510 Jaggery ingots; (c) 200 liters of ID Liquor;
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(d) One Thade Pathri; (e) Two Aluminum Vessels; (f) Partly burnt cooking wood; (g) One Plastic drum; and (h) Stones used for Oven;
ii) Pursuant to the seizure of aforesaid articles, Police, Raidurgam Police Station have registered a case vide FIR No.114 of 2003 on the same day under Section 7 (A) read with 8 (e) of Andhra Pradesh Prohibition Act, 1995 (for short 'Act, 1995') and submitted proposal for confiscation of the said seized property. Thus, accused persons viz., Mr. Ashok Singh, Sayeed Yakub and Mahamood Ali were committed the aforesaid offence. Thereafter, respondent initiated confiscation proceedings in respect of the seized vehicle.
4. CONTENTIONS ON BEHALF OF THE PETITIONER:
i) Learned counsel for the petitioner would submit that the petitioner herein is the owner of DCM Van and plying the same on hire. M/s. Yashoda Enterprises represented by Ashok Singh purchased 510 jaggery ingots from the shop of petitioner and engaged his vehicle for transportation of said jaggery from Begum Bazar to Nanakramguda for delivery of the said goods. He would further submit that respondent No.3 without any authority effected the seizure of said vehicle together with said jaggery under cover of panchanama and registered a case vide Crime No.114 of 2003 as if the said vehicle was used for transportation of 200 liters of I.D. Liquor. However, subsequently, the said vehicle was released on furnishing FDR for Rs.4,05,500/- as interim custody to the petitioner, while the seized stock to its owner on furnishing guarantee for Rs.28,000/-.
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ii) He would further submit that respondent No.2 without issuing show-cause notice and without calling for explanation passed final orders on 18.09.2010 in Proceedings Cr.No.C6/B2/4425/2003/ DCRR confiscating the aforesaid vehicle on the ground that it was used for transportation of 200 liters of I.D. Liquor. As against the said order, the petitioner filed appeal before respondent No.1 and respondent No.1 vide order dated 01.02.2011 in CR.No.15828/2010/CPE/D4 dismissed the appeal confirming the order passed by respondent No.1 without appreciating the material on record and contentions of the petitioner and without providing an opportunity of being heard. He would further submit that the learned Special Judicial Magistrate of First Class, Excise - cum - XII Metropolitan Magistrate, Cyberabad at L.B. Nagar vide judgment dated 22.04.2010, acquitted the aforesaid accused persons in C.C. No.439 of 2006 observing that there is no evidence against them. Even, respondent No.1 did not consider the said judgment while confirming the order of respondent No.2. Further, the appeal filed by M/s. Yashoda Enterprises vide CR.No.15949/10/CPE/D4 against the order of respondent No.2 was allowed ordering to release the seized stock of 510 jaggery ingots. Respondent No.1 failed to consider the fact and ignored the basic feature that the said stock as well as the vehicle was seized in the very same crime. The conduct of respondents in ordering for releasing stock and rejecting for release of vehicle in which such stock alleged to have transported is even against KL,J W.P. No.18802 of 2011 4 the principles of natural justice. Thus, both the orders are illegal and therefore he sought to set aside the same.
5. CONTENTIONS ON BEHALF OF RESPONDENTS:
i) On the other hand, the learned Government Pleader for Prohibition and Excise would submit that before initiation of action for confiscation, respondent No.2 has issued show-cause notice to the accused as well as the petitioner herein, but they failed to submit their explanation. He would further submit that result of criminal case either acquittal or conviction will not prevent the Authorities from initiating the proceedings for confiscation in respect of seized vehicle as per Section 46-D of the A.P. Excise Act.
ii) The learned Government Pleader would further submit that the vehicle of the petitioner was involved in illegal transportation of I.D. Liquor, and respondent No.2 in exercise of powers vested under Section 13 (2) of the Act, 1995 confiscated the said vehicle along with contraband vide proceedings dated 18.09.2010. As against the same, the petitioner filed appeal before respondent No.1 who in turn, after due enquiry, dismissed the said appeal confirming the order of respondent No.2. Thus, the entire process of confiscation is in accordance with rules. He would further submit that respondent No.2 has issued show cause notice for confiscation of seized vehicle to the petitioner vide office Cr.No.C6/44223/2003, dated 20.11.2003, which was served on the petitioner on 27.11.2003. Even respondent No.1 KL,J W.P. No.18802 of 2011 5 also after perusal of records and in exercise of powers conferred under Sections 7 and 12 of the Act, 1995, upheld the order of respondent No.2. Respondent No.1 also issued a notice to the petitioner to appear before him on 22.01.2011, but none could appear on his behalf. In view of the same, the learned Government Pleader sought to dismiss the present writ petition.
6. CONSIDERATION BY THE COURT In view of the above rival submissions, the only point that arises for consideration in the present writ petition is:
Whether respondent Nos.1 and 2 have given an opportunity of being heard before passing the orders which are impugned in this writ petition or not?
7. It is not in dispute that the seized vehicle viz., DCM Van bearing Registration No.AP 12U 4581 was seized by the police, Raidurgam Police Station on 18.09.2003 along with contraband and that a case in Crime No.114 of 2003 was registered against the accused persons viz., Ashok Singh, Sayeed Yakub and Mahamood Ali. It is also not in dispute that the petitioner is the owner of the said seized vehicle. It is also not in dispute that the said accused persons were acquitted by the learned Magistrate vide judgment dated 22.04.2010 in C.C. No.439 of 2006. The seized stock was also released to its owner.
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8. In this writ petition, the contentions raised by the petitioner are two-fold. Firstly, he was not given an opportunity of producing evidence, both oral and documentary and advancing his arguments before passing impugned orders by respondent Nos.1 and 2. Secondly, in view of acquitting the accused persons by the learned Magistrate Court vide judgment 22.04.2010 in C.C. No.439 of 2006 arising out of Cr.No.114 of 2003, in which the aforesaid vehicle was seized, confiscation proceedings cannot be maintainable. The same were refuted by the learned Government Pleader contending that before passing the final orders of confiscation of vehicle, the respondents have issued show-cause notice to the petitioner vide Cr.No.C6/44223/2003, dated 20.11.2003 and the same was served on the petitioner on 27.11.2003. As per Section 46-D of A.P. Excise Act, result of criminal proceedings either acquittal or conviction will have no bearing on the orders of confiscation.
9. In view of the said submissions, this court called for original record from the respondents. A perusal of the record called from respondents would reveal that in the appeal filed by the petitioner, respondent No.1 authority said to have issued a notice dated 15.11.2010 in Cr.No.15828/10/CPE/D4 by registered post with acknowledgment due informing him to appear before respondent No.1 authority on 18.12.2010 at 11.30 A.M. Another notice dated 24.12.2010 said to have issued by respondent No.1 authority informing him to appear on 22.01.2021 at 11.30 A.M. Though both KL,J W.P. No.18802 of 2011 7 the notices appear to have been issued by respondent No.1 in the appeal before passing the order dated 01.02.2011, the respondents have not filed any acknowledgment or any material in proof of service of such notices on the petitioner. Even the docket proceedings of respondent No.1 do not disclose about service of notices on the petitioner before passing orders except mentioning the draft summons are placed for approval. Thus, there is force in the contention of the learned counsel for the petitioner that before passing orders by respondent No.1, no opportunity of producing the evidence as well as arguments was given to the petitioner. Further, in the counter filed by the respondents, it has been specifically mentioned that show cause notice for confiscation of seized vehicle was given to the petitioner vide office Cr.No.C6/44223/2003, dated 20.11.2003 and the same was served on 27.11.2003. But, respondent No.2 has not even filed the acknowledgment in proof of service of such show cause notice on 27.11.2003. Even otherwise, the petitioner by referring to the order dated 18.09.2010 passed by respondent No.2 vide proceedings Cr.No.C6/B2/4423/2003/DCRR as against which the petitioner filed appeal before respondent No.1 would contend that no opportunity was given to him before passing the final orders dated 18.09.2010. The respondents have not filed any material to prove that respondent No.1 has given opportunity to the petitioner before passing the order dated 18.09.2010.
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10. The record would further reveal that the Raidurgam Police has filed a petition under Section 13 of the Act, 1995 before respondent No.2 for issue of confiscation order for the contraband along with DCM vehicle. Pursuant to the same, respondent No.2 passed the order dated 18.09.2010. In the said order, it is mentioned by respondent No.2 that show cause notice was issued to the petitioner as well as owner of seized stock on 20.10.2003 and 20.11.2003 respectively giving an opportunity to defend their case, but none could submit their explanation. Except mentioning therein, no proof has been filed by the respondents to show that such show cause notices were served on the petitioner. Even assuming that show cause notices were served, the same were in the year 2003, whereas the final order was passed on 18.09.2010. Before passing such order on 18.09.2010, respondent No.2 should have issued notice to the petitioner affording an opportunity of making his submission of evidence as well as hearing. Respondent No.2 did not do so, which is a lapse on his part. Similarly, respondent No.1 has not given any opportunity of being heard etc. as it has not filed any document to prove that before passing the order on 01.02.2011, any notice was served on the petitioner. Thus, there are lapses on the part of respondent No.1 in passing the order dated 01.02.2011.
11. In this regard, it is apt to refer to Section 13A of the Act, 1995, which is as under:
KL,J W.P. No.18802 of 2011 9 "13A. Issue of show cause notice. - No order of confiscation of any property shall be made under Section 13 unless the persons from whom the said property is seized,-
(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property; and
(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice."
12. As per the above provision, it is clear that before passing the orders dated 18.09.2010 and 01.02.2011 by respondent Nos.2 and 1 respectively, they have not given any notice / show cause notice to the petitioner to make a representation in writing with such reasonable time etc.
13. A perusal of the order dated 01.02.2011 passed by the 1st respondent would reveal that there is no reference and consideration of the contentions raised by the petitioner in the appeal. The 1st respondent has not even assigned any reasons. Any order without reasons is an order without application of mind.
14. Similarly in the order dated 18.09.2010 passed by the 2nd respondent, there is no reference and consideration of the contentions raised by the petitioner. He has simply referred order in W.P.No.7164 of 2005 and passed the said order. Thus, any order without reasons is an order without application of mind. Therefore, both the orders are liable to be set aside.
15. In view of the above discussion, respondent Nos.2 and 1 have passed the orders dated 18.09.2010 and 01.02.2011 respectively without giving an opportunity of adducing evidence, both oral and documentary, and also hearing and, therefore, the matter requires to be remitted to respondent No.1 for consideration afresh.
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16. CONCLUSION:
The present Writ Petition is accordingly allowed setting aside the order dated 01.02.2011 passed by respondent No.1 in Cr.No.15828/2010/CPE/D4 and also order dated 18.09.2010 passed by respondent No.2 in proceedings Cr.No.C6/B2/4423/2003/DCRR, and the matter is remitted to respondent No.2 for consideration afresh in accordance with law and by giving an opportunity of being heard to the petitioner after making a representation, and pass appropriate orders in accordance with law. However, keeping in view that the vehicle was seized in 2003 and the present writ petition is of 2011, respondent No.2 shall conclude the proceedings as expeditiously as possible, preferably within a period of two months from the date of receipt of a copy of this order. In the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J 1st June, 2021 Mgr