THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.6717 of 2014
ORDER:
This Writ Petition is filed to declare the action of the 2nd respondent in passing order dt.22.01.2014 in Crime No.8472/2013/CPE/D4, rejecting the appeal filed by the petitioner, against the order dt.04.02.2013 of the 3rd respondent, in proceedings Cr.No.B/188/2012/DCM confiscating the petitioner's vehicle, i.e. Mahindra Scorpio, bearing No.MH-45A-8313 in connection with alleged offences under Section 7(A) read with 8(e) of the Telangana Prohibition Act, 1995 (for short, 'the Act') in COR No.505/2012-13 registered on 14.12.2012, as illegal and arbitrary.
2. Heard Sri K.Laxmaiah, learned counsel for the petitioner, and learned Government Pleader for Prohibition and Excise appearing for the respondents, and perused the material available on record of this Court.
3. The main ground, on which challenge is made to the confiscation proceedings dt.04.02.2013, as confirmed in appeal, is that the said proceeding having not been served on the petitioner, on 14.02.2013, as being claimed by the respondents, and thus, the rejection of appeal by the 2nd respondent on the ground of lack of power to condone the delay in filing, is erroneous.
4. The brief facts of the case are that the petitioner is the owner of Scorpio bearing No.MH-45A-8313; that the 4th respondent, while conducting a watch at Kashipur X road, seized the subject vehicle, alleging that it was 2 transporting 100 litres of ID Liquor and 275 Kgs of white Sandalwood pieces illegally without any permit; and that a case vide COR No.505 of 2012-13 dt.14.12.2013 was registered on the file of Prohibition and Excise Station, Sanga Reddy, Medak District, for the offence under Section 7(A) read with 8(e) of the Act and is being enquired into by the 3rd respondent.
5. It is further contended that upon registration of crime and seizure of the vehicle effected, the petitioner filed Crl.M.P.No.299 of 2013 before the learned Special Judicial First Class Magistrate for Prohibition and Excise Offences at Sanga Reddy, (for short, 'the JFCM'), seeking interim custody of the subject vehicle; that the said petition was rejected by the JFCM vide order dt.13.02.2013; that aggrieved by the said order, the petitioner filed Crl.R.C.No.355 of 2013 before this Court, seeking release of the subject vehicle; that this Court allowed the said Crl.R.C., vide order dt.19.02.2013 directing release of the subject vehicle by imposing conditions; that as the 4th respondent, in spite of the order of this Court and execution of personal bond and sureties before the JFCM, as directed by the Hon'ble High Court and the JFCM directing release, vide proceeding dt.27.02.2013, did not release the vehicle; that aggrieved thereby, the petitioner filed C.C.No.591 of 2013 to punish the 4th respondent for willful disobedience of the order of this Court dt.19.02.2013; that in Crl.R.C.No.355 of 2013, which was disposed of on 19.02.2013, the respondents filed an interim application numbered as I.A.No.1 of 2013 (CRL.R.C.M.P.No.916 of 2013) for listing matter under the caption 'for 3 being mentioned', on 19.03.2013, wherein the respondents claimed that the subject vehicle was confiscated on 04.02.2013 itself, i.e. before this Court passing the order of release; that the order dt.04.02.2013 is ante-dated, as no show cause notice and confiscation order were served on the petitioner; and that the 3rd respondent apparently by using his signatures obtained in connection with and for the purpose of release of the vehicle pursuant to the release order of the JFCM, are claiming to have served the show cause notice and order of confiscation.
6. It is also contended that on coming to know of the claim of the respondents of having passed confiscation order, as no notice was issued nor the order was served, the petitioner approached the 3rd respondent and made an application through counsel on 31.07.2013 seeking interim custody of the subject vehicle, which was rejected by the 3rd respondent, vide his order dt.05.08.2013, by stating that an appeal ought to have been filed before the 2nd respondent, since confiscation order has already been passed and served on the petitioner on 14.02.2013.
7. Petitioner also contends that though the 3rd respondent in his order dt.05.08.2013 mentioned about the order dt.04.02.2013, as the copy thereof was not provided, the petitioner immediately took steps by filing an application before the 3rd respondent through his counsel on 06.09.2013 requesting to furnishing the confiscation order dt.04.02.2013; and that it is only after making an application on 06.09.2013, the copy of the order dt.04.02.2013 was 4 furnished to the counsel for the petitioner on 16.09.2013 under the cover of letter of the 3rd respondent dt.12.09.2013.
8. Petitioner asserts that at no point of time, prior to furnishing the confiscation order to his counsel on 16.09.2013, he was served with the confiscation order, nor any explanation was called for from him and no opportunity of being heard was granted by the 3rd respondent before the alleged confiscation order was passed on 04.02.2013.
9. Petitioner further contends that upon receipt of the confiscation order dt.04.02.2013, as furnished to him under the cover of letter of the 3rd respondent dt.12.09.2013, the petitioner had filed an appeal, before the 2nd respondent. The 2nd respondent by his order dt.22.01.2014, rejected the appeal filed by the petitioner, as time barred, holding that there is a delay of 157 days in filing and there is no provision in the Telangana Excise Act, 1968 (for short, 'the Excise Act') to condone the delay.
10. Aggrieved by the said order of rejection of appeal on the ground of delay, the present Writ Petition is filed, inter alia, contending non-receipt of the order of confiscation alleged to have been passed on 04.02.2013, and served on the petitioner on 14.02.2013 and the consequential rejection of appeal.
11. A counter-affidavit on behalf of the respondents is filed. 5
12. By the said counter, the respondents contend that the subject vehicle of the petitioner was seized on 14.12.2012, while illegally transporting 100 litres of ID and 275 kgs of white sandalwood pieces, whereupon a case was registered in COR No.505/2012-13 dt.14.12.2012 under Section 7A read with 8(e) of the Act with the 4th respondent.
13. The respondents by their counter-affidavit also contend that upon effecting the seizure, the samples of the contraband of ID liquor was taken and sent for chemical analysis and a report dt.19.12.2012 was obtained, which indicated that the sample is of illicitly distilled liquor, unfit for human consumption and is injurious to health; that upon receipt of the said report, a show cause notice dt.03.01.2013 was issued to the petitioner, i.e. the owner of the vehicle, calling upon him to show cause as to why the vehicle should not be confiscated for having involved in transportation of ID liquor; that the said show cause notice was served on the petitioner on 13.01.2013 under acknowledgement; and that even though the petitioner had received the show cause notice, no reply was filed within the stipulated 15 days.
14. It is also contended that since the petitioner did not choose to file any reply to the show cause notice issued, confiscation orders were passed, vide office proceedings in Cr.No.B/188/2012/DCM dt.04.02.2013 and that the said confiscation order was served by hand on the petitioner on 14.02.2013, under acknowledgment.
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15. By the counter-affidavit, the respondents would further contend that the petitioner had initially filed Crl.M.P.No.299 of 2013 for interim custody of the subject vehicle before the JFCM, which was rejected on 13.02.2013; that suppressing the fact of passing of confiscation order dt.04.02.2013 duly served on him on 14.02.2013, the petitioner filed Crl.R.C.No.355 of 2013 against the order in Crl.M.P.No.299 of 2013 dt.13.02.2013 before this Court seeking interim custody of the subject vehicle.
16. The respondents would further contend that upon the petitioner filing criminal revision case, this Court directed the JFCM to obtain personal bond and sureties for release of the vehicle.
17. By the counter-affidavit, the respondents also contend that Crl.R.C.No.355 of 2013 was filed by the petitioner before this Court by concealing the fact of service of the confiscation order on 14.02.2013 and obtained order for release of the vehicle, wherein this Court directed the concerned JFCM to obtain personal bond and sureties for releasing the vehicle.
18. By the counter-affidavit, the respondents contend that the 3rd respondent herein had filed counter-affidavit in Crl.R.C.No.355 of 2013 on 06.03.2013 pending before the High Court bringing all the above facts on record and that the orders in criminal revision case are still awaited. By the counter-affidavit, the respondents denied the averments made by the petitioner and the grounds taken therein in toto.
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19. In the light of the above contentions urged before this Court, the only question that falls for consideration in this Writ Petition is as to whether the confiscation order dt.04.02.2013, said to have been passed by the 3rd respondent, was, in fact, served on the petitioner, on 14.02.2013, as being claimed by the respondents, or that the same was served on the petitioner through counsel, on 16.09.2013, and not any time before, as being claimed by the petitioner, and thereby, the rejection of appeal filed by the petitioner by the 2nd respondent holding the same to have been filed with the delay of 157 days, is vitiated and unsustainable.
20. Before adverting to the respective contentions urged, it is an admitted fact of petitioner filing an application in Crl.M.P.No.299 of 2013 before the JFCM, seeking interim custody of the seized vehicle, and the said application filed by the petitioner being dismissed by the JFCM, on 13.02.2013 holding that 'according to Sections 45 and 46 of the Act, that the vehicle was confiscated by the Deputy Commissioner of Excise. Hence, this Court has no power to release the vehicle. The petitioner is at liberty to appear before the Deputy Commissioner of Excise. Hence, this petition is dismissed''.
21. On the basis of the above order passed by the JFCM, on 13.02.2013, the respondents contended that the petitioner was aware of the confiscation order passed on 04.02.2013. However, it is the admitted case of the respondents that the confiscation order dt.04.02.2013 was served on the petitioner on 14.02.2013, a day after the JFCM dismissed Crl.M.P.No.299 of 8 2013 directing the petitioner to approach the 3rd respondent. If the contention of the respondents is that the petitioner was aware of passing of confiscation order, nothing prevented them from stating the same before the JFCM. The respondents are only trying to take advantage of use of the word "confiscation" in the order of the JFCM to bolster their case. However, mere use of the word "confiscation" in the order cannot be looked in isolation. The use of the said word in the order of the JFCM with the other part of the order i.e. reference to Sections 45 and 46 of the Excise Act and further direction to approach the Deputy Commissioner of Excise would only go to show that the reference is to the seizure of the vehicle effected by the 3rd respondent subsequent to the 4th respondent detaining the vehicle and registering a case against the petitioner, against which action the petitioner can only approach the 3rd respondent under Section 46 of the Act, seeking interim custody of the vehicle. If only the 3rd respondent had initiated steps for confiscation of the subject vehicle by issuing a notice to the petitioner and passing the order of confiscation dt. 04.02.2013, the same should have been stated before the JFCM and the petitioner should have directed to approach Commissioner by availing the remedy of appeal provided under the Act.
22. Further, it is also not in dispute that against the order of dismissal of criminal miscellaneous petition, the petitioner had filed a revision before this Court, numbered as Crl.R.C.No.355 of 2013. The said Crl.R.C. came to be disposed of by this Court by its order dt.19.02.2013, wherein this Court while 9 allowing the Crl.R.C., directed interim custody of the vehicle to the petitioner subject to conditions mentioned therein.
23. Further, a perusal of the order passed by this Court in Criminal Revision Case No.355 of 2013 dt.19.02.2013 would show that the respondents did not bring to the notice of this Court of the subject vehicle having been confiscated, vide proceedings dt.04.02.2013 and the said proceeding having been served on the petitioner, in person, on 14.02.2013. If only a confiscation order was passed on 04.02.2013 by the 3rd respondent, nothing prevented the respondents from stating so before this Court in the criminal revision case as by that time as per the respondents even the service was effected on the petitioner. On the other hand, the respondents allowed this Court to dispose of the criminal revision case by passing an order directing grant of interim custody of the subject vehicle on the conditions specified therein.
24. Further, the fallacy of the contention of the respondents in the counter- affidavit, that the petitioner obtained order in Crl.R.C.No.355 of 2013 by suppressing the passing of confiscation order dt.04.02.2013, is borne out from the contents of the counter filed herein, wherein, it is stated that the 3rd respondent had filed counter-affidavit on 06.03.2013 in Crl.R.C.No.355 of 2013 bringing all the above facts to the notice of this Court. The said claim of the respondents that the above facts have been brought to the notice of this Court by filing a counter-affidavit on 06.03.2013 subsequent to the disposal of the criminal revision case, on the face of it, cannot be accepted. It is not known as 10 to how and in what manner and context the respondents filed counter in Crl.R.C. after it is disposed off on 19.02.2013 itself. If only the said statement of the respondents is to be accepted as correct, the proper course for the respondents would be to file a petition seeking review of the order passed in the criminal revision case by bringing the fact of passing of confiscation order dt.04.02.2013 and service of the same on the petitioner on 14.02.2013 on record and not by filing an I.A. for listing the matter under the caption "for being mentioned".
25. Further, in order to verify the statement made by the 3rd respondent in its counter affidavit as to filing counter in Criminal Revision Case, this Court has called for the record of Crl.R.C.No.355 of 2013 from the registry.
26. A perusal of the record in Crl.R.C. No. 355 of 2013 shows that no counter affidavit deposed to on 06.03.2013 is filed therein. The only affidavit filed therein affirmed to on oath is dt.18.03.2013 'for being mentioned'. Further, even along with the affidavit filed for being mentioned in Crl.R.C.No.355 of 2013, the respondents did not choose to enclose the copy of the confiscation order dt.04.02.2013 stated to have been served on the petitioner on 14.02.2013 in person. On the other hand, the emphasis in the affidavit filed for 'for being mentioned' relates as to the requirement of 'mens rea' by placing reliance and enclosing the judgment of Hon'ble Supreme Court in Civil Appeal No.539 of 2006 and batch.
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27. Further, it is also to be seen that the Magistrate vide proceedings No.98 of 2013 dt.27.02.2013 addressed to the 4th respondent directed interim custody of the subject vehicle to the petitioner as per the directions of this Court in Crl.R.C.No.355 of 2013. Even at this stage, there has been no objection from the respondents for release of the vehicle on the ground that confiscation orders have been passed and served on the petitioner, thereby disentitling him from being granted interim custody of the vehicle. Even at this stage the respondents did not file a copy of the confiscation order dt. 04.02.2013 before the JFCM.
28. Further, the claim of the respondents in their counter affidavit that the order in Criminal Revision Case is still awaited, is contrary to record, inasmuch as criminal revision case was disposed of on 19.02.2013 and that the application filed in I.A.No.1 of 2013 is only an application for listing the matter under the caption 'for being mentioned'.
29. Further, another aspect of the matter which also needs to be taken note of is that the respondents by their counter affidavit claim that the said confiscation order was served on the petitioner in person on 14.02.2013. If the statement made in the counter-affidavit is to be taken as correct, since the petitioner is a resident of Sholapur in the State of Maharashtra, the respondents ought to have deputed a person by obtaining necessary permission from superior authority to travel to Sholapur, in the State of Maharashtra. However, curiously no details as to the permission granted for 12 person/officer to travel to Sholapur to affect service, are mentioned in the counter. It is also to be noted that the above writ petition was admitted on 07.03.2014 and even after more than 8 years having passed by, no record has been placed before the Court to substantiate the claims made in the counter.
30. All the above facts would go to show that the counter-affidavit filed by the 3rd respondent under oath, does not disclose the true and correct events that have taken place and on the other hand, the 3rd respondent by making statements contrary to record, has sought to create prejudice against the petitioner in the mind of the Court. The said action of the 3rd respondent in the view of this Court amounts to interfering in the administration of justice and cannot be countenanced. Thus, the counter filed by the respondent is liable to be rejected and accordingly, I do so.
31. Having regard to the findings arrived at as above as to the claim of the 3rd respondent having passed confiscation order dt.04.02.2013, served on the petitioner on 14.02.2013, it is imperative for this Court to come to an inevitable conclusion that the alleged confiscation order dt.04.02.2013 stated to have been served on the petitioner on 14.02.2013 was not passed, nor served on the petitioner on the dates as claimed.
32. Now, turning to the order of the 2nd respondent rejecting the appeal preferred by the petitioner against the order of confiscation of the 3rd respondent dt.04.02.2013 vide his order dt. 05.08.2013, in the light of the finding recorded above, though would be academic, the same is being 13 considered since the appeals filed against such high handed actions of the respondent authorities are being disposed in a mechanical manner without properly considering the powers conferred on them under the Act. Section 63 of the Excise Act read with Rule 7 of the Telangana Excise (Appeal and Revision) Rules, 1969, deal with the manner and method of disposal of the appeal by the Commissioner acting as an appellate authority. A conjoint reading of the Section with the Rule would clearly indicate the requirement of granting of personal hearing before rejecting the appeal. However, in the facts of the present case, the order of the 2nd respondent does not indicate of petitioner being afforded with opportunity of personal hearing. Thus, the rejection of the appeal filed by the 2nd respondent is also in violation of principles of natural justice and contrary to the scheme of the Act and Rules. That apart, the 2nd respondent did not give due consideration to all the aspects pleaded, while rejecting the appeal filed by the petitioner.
33. For the foregoing reasons, the Writ Petition is allowed; the impugned confiscation order dt.04.02.2013 passed by the 3rd respondent and the order dt.22.01.2014 of the 2nd respondent rejecting the appeal filed thereagainst, are accordingly set aside. However, it is open for the respondents, if they so desire, to initiate proceedings afresh by following due process of law and pass order thereon after granting an opportunity of personal hearing to the petitioner.
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34. Since, the 3rd respondent by counter-affidavit has made misstatement, this Court is of the view that the 3rd respondent is to be directed to pay costs quantified at Rs.10,000/- (Rupees Ten Thousand only) to the Telangana State Legal Services Authority, within a period of two (2) weeks from the date of receipt of a copy of this order, and report compliance to this Court.
35. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
_________________ T. VINOD KUMAR, J Dt:23.08.2022 GJ 15 THE HON'BLE SRI JUSTICE T. VINOD KUMAR Writ Petition No.6717 of 2014 __.08.2022 GJ