Andhra Pradesh High Court - Amravati

Sai Krishna Pidathala vs The State Of Andhra Pradesh on 12 August, 2021

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   THE HONOURABLE SRI JUSTICE BATTU DEVANAND

              WRIT PETITION No.15823 of 2021

O R D E R:-

      Heard Sri R. Siva Sai Swaroop, learned counsel for the

petitioner and the learned Government Pleader for Prohibition

and Excise appearing for the respondents. Perused the

material available on record.

2) This writ petition has been filed against the action

of the respondents particularly 3rd respondent retaining the

vehicle of the petitioner (i.e) Car M/s.RENAULT - KWID RXT

1.0 BS IV bearing registration No.TS 29 H 9863 in the police

station without any crime nor any records officially to show

the seizure of the vehicle by proper identification through a

Registration Number/Chasis Number/Colour, Owner, etc., as

illegal, arbitrary, unlawful, against the law and procedure and

subsequently to direct the 3rd respondent to return the vehicle

to the petitioner, in the interest of justice.

3) The learned counsel for the petitioner submits that

the petitioner is the resident of Telangana State and he is

doing a private job at Nalgonda District. He is having a motor

car M/s.RENAULT - KWID RXT 1.0 BS IV bearing registration

No.TS 29 H 9863. There is no any criminal case or any other

cases as against the petitioner or against the vehicle of the

petitioner. Recently, the Andhra Pradesh police people came

to Telangana State and in the absence of the petitioner

without having right, they taken away his car without his

knowledge. Since then, the petitioner searching for the

vehicle and recently he came to know that his vehicle is kept

in the 3rd respondent police station. On enquiry, the

petitioner came to know that in connection with a case

registered under Section 34-A of A.P. Excise Act with regard

to the possession of liquor bottles, that vehicle kept in the

police station of the 3rd respondent.

4) The learned counsel for the petitioner would

submit that 3rd respondent is not showing any document like

FIR, mediators report, seizure report, etc., as required under

Cr.P.C. to retain the vehicle of the petitioner. Nowhere it was

mentioned anything about the vehicle of the petitioner

particularly the Registration Number, Chasis Number or

Engine Number or Colour or owner name, etc., except saying

or mentioning about RENAULT - KWID CAR. In the mediators

report the Registration Number of the vehicle or any other

particulars of the vehicle are not mentioned.

5) Learned counsel for the petitioner further submits

that the action of the 3rd respondent in retaining the vehicle of

the petitioner without any reason for nearly 50 days in the

police station causes serious and irreparable loss to the

petitioner. The vehicle is being damaged due to exposure to

sun and rain for all these days. The vehicle being the

personal vehicle and due to the reason that the vehicle is

retained by the 3rd respondent, the petitioner is facing serious

hardships.

6) Learned counsel for the petitioner relied on a

decision of this High Court in K. Veeraprasad Rao and

another vs. Commissioner of Prohibition and Excise and

another1 to substantiate his contentions.

7) Finally, the learned counsel for the petitioner prays

to direct the 3rd respondent to return the car M/s.RENAULT -

KWID RXT 1.0 BS IV bearing registration No.TS 29 H 9863 of

the petitioner forthwith, in the interest of justice.

8) A counter-affidavit has been filed by the 3rd

respondent.

9) Basing on the averments of the counter-affidavit,

the learned Government Pleader submits that the petitioner's

vehicle was seized in Crime No.211 of 2021 registered for the

offence U/Sec.34-A of A.P. Excise Act, on the file of the

Penuganchiprolu Police Station, under the cover of mediators

2008(1) ALD 740, 2008(1) ALT 218

report. In the mediators report due to hurry the details or

particulars of the vehicle could not mentioned except the

vehicle model name i.e., "KWID Renault". The car KWID

Renault which was kept in the premises of the 3rd respondent

was used by the accused for illegal transportation of liquor

from Telangana State and the said car is the case property in

Crime No.211 of 2021 of Penuganchiprolu Police Station. The

learned Government Pleader denied the allegations made by

the petitioner in his affidavit and in the submissions of the

learned counsel for the petitioner.

10) Learned Government Pleader further submits that

while seizing the car, the 3rd respondent questioned the

persons, who used the said car, about its ownership

particulars and one Bhukya Nila stated that she is the owner

of the vehicle. When she was asked about the documents of

the car, she replied that papers are not with her and upon

that they registered the crime against the persons involved in

the crime as well seized the car on the spot with a view to

obtain the particulars of the car during the course of

investigation. Thereafter, the accused No.2 brought the copies

of the vehicle record and then only they noticed other details

of the car.

11) Learned Government Pleader finally submits that in

Criminal Petition No.4191 of 2021 filed by the accused, this

Court was pleased to grant stay of investigation and due to

that reason, they could not proceed further in the

investigation. The petitioner has filed the present case only

on the ground of technical lapses and he never denied the

offence and sought to dismiss the writ petition.

12) Having heard the submissions of both the counsel

and upon perusal of the material available on record, in the

opinion of this Court, it is appropriate to extract the following

relevant provisions of law under A.P. Excise Act and the Code

of Criminal Procedure, 1973 for proper adjudication of the

case:

Sections 53 and 59 of A.P. Excise Act:

53. Powers to arrest without warrant, to seize articles liable for confiscation and to make searches. - (1) Any officer of the Government employed in the Prohibition and Excise, Police or [Executive Magistrate or Special Enforcement Bureau] of the State subject to such restrictions as may be prescribed and any other person duly empowered, may,-

(a) arrest without warrant any person for an offence punishable under Section 27 or Section 34 or Section 35 or Section 36 or Section 37 or Section 37-A or Section 40-A or Section 50 or Section 50-A;

(b) seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act, or and other law for the time being in force, relating to Excise, revenue; and

(c) detain and search any person upon whom and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be.

59. Arrest, search etc. how to be made. - Any person arrested under this Act, shall be informed, as soon as may be, of the grounds for such arrest and save as otherwise expressly provided in this Act, the provisions of the Code of Criminal Procedure, 1973 relating to arrests, detention in custody, searches, summonses, warrants of arrests, search warrants, the production of persons arrested and the disposal of things seized, shall apply, as far as may be, to all actions taken in these respects under this Act.

Section 102 of the Code of Criminal Procedure:

102. Power of police officer to seize certain property.-

(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may

give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.]

13) On careful examination of the above provisions of

A.P. Excise Act and the Code of Criminal Procedure, it is clear

that any officer of the Prohibition and Excise, Police, Executive

Magistrate or Special Enforcement Bureau of the State can

detain and search any vehicle. Upon which, he may have

reasonable cause to suspect or which may be found under

circumstances which create suspicion of the commission of

any offence.

14) But, at the time of seizure, they have to conduct

Panchanama/mediators report in the presence of the

independent mediators. The Panchanama/mediators report

shall contain all particulars of the property, articles or vehicle

seized in their presence.

15) It appears that in the mediators report drafted on

23.06.2021, which is a basis for registering the case in Crime

No.211 of 2021 of Penuganchiprolu Police Station nowhere

the particulars of the vehicle seized by them for the alleged

violation of the Excise Act is mentioned. In the mediators

report it is mentioned as "KWID Renault car". The particulars

of the car (i.e.) (1) Registration Number; (2) Colour of the

car; (3) Chasis Number of the car; (4) Engine Number of the

car, etc., are not mentioned in the mediators report. This

Court noticed from the mediators report that the persons,

who acted as mediators at the time of drafting the mediators

report, are no other than the Village Revenue Officer and

Village Revenue Assistant. As per the procedure provided for

conducting the inspection and seizure and for drafting

mediators report, the independent and respectable persons of

that locality have to be taken as mediators.

16) In the counter filed by the 3rd respondent it is

admitted that due to hurry, he could not mention the details

or particulars of the vehicle involved in the crime. Without any

identification of the vehicle which is involved in the alleged

crime and in the absence of any incriminating material against

the petitioner or his vehicle, retaining the vehicle of the

petitioner in the 3rd respondent police station for nearly 50

days is illegal, unjust and against to the principles of natural

justice and it violates the fundamental rights of the petitioner

guaranteed under the Constitution of India.

17) In K. Veeraprasada Rao's case (1 supra) relied by

the learned counsel for the petitioner, this Court held that;

"When no incriminating material is found in a vehicle it cannot be seized or confiscated on the basis that it was earlier used for transporting or carrying the contraband

found elsewhere. Since the panchanama extracted above does not disclose that any incriminating material was found in the tractor or trailer at the time of search, even assuming that the tractor and trailer were used for transporting the articles found in the hut, where illicit transaction was being carried on by others, the tractor and trailer of the petitioners are not liable for seizure or confiscation inasmuch as Section 45 of the Act being a penal provision, it has to be strictly construed and the benefit should be given to the subject. So, the respondents erred in ordering confiscation of the tractor and trailer of the petitioners."

18) Though there is no any different opinion about the

ratio laid down in the said Judgment, in our opinion the facts

and circumstances in the said case and in the present case

are entirely different.

19) Accordingly, this writ petition is allowed directing

the 3rd respondent to return the Car M/s.RENAULT - KWID

RXT 1.0 BS IV bearing registration No.TS 29 H 9863 to the

petitioner forthwith in running condition.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, in this case shall

stand closed.

______________________________ JUSTICE BATTU DEVANAND