T D M Durai vs The State Of Ap
2021 Latest Caselaw 1696 AP

           THE HONOURABLE SRI JUSTICE D.RAMESH

                 WRIT PETITION No.22736 of 2020

ORDER:

The Writ Petition is filed under Article 226 of Constitution of

India seeking to declare the order passed by the 2nd respondent

Cr.No.491/2020/SEB/C1 dated 04.11.2020 confirming the order of

the 3rd respondent passed in Rc.No.813/2020/B2 dated 19.8.2020 as

illegal, arbitrary and consequently to set aside the orders passed by

the respondents 2 and 3.

2. Heard Sri P.Gangarami Reddy, learned Counsel for the

petitioners and learned Government Pleader of Prohibition & Excise for

respondents.

3. As per the averments in the affidavit, the 1st petitioner is the

owner of the lorry bearing registration no.TN 33 AS 4896 and doing

transport business. The 2nd petitioner is a registered trader doing

business in the name and style as 'Shree Shastika Traders' with

TSTIN:33AYTPN8678CIZT. On 25.5.2020 at about 05.30pm the 4th

respondent has intercepted the vehicle bearing registration no.TN 33

AS 4896 and seized the vehicle and jaggery of 500 bags each bag

containing 30kgs of jaggery, on the ground that the jaggery being

transporting for ID distillation purpose and registered a crime no.92 of

2020 for the offence u/s.34(e), 50, 34 (2) of A.P.Excise Act 1968 and

section 7(A) r/w 8(e) of A.P.Prohibition Act 1995 and section 3 of the

GUR (regulation of use) Order 1968. Basing on the report submitted

by the 4th respondent, the 3rd respondent has initiated proceedings to

confiscate the seized lorry as well as stock. 3rd respondent has issued

show cause notice on 07.7.2020 to the 1st petitioner to submit his

explanation as to why the seized property should not be confiscated

DR,J W.P.No.22736 of 2020

to the Government u/s.45(3) and 46-A of A.P.Excise Act 1968. The

1st petitioner was suffering with severe pain on left leg and fever and

he was admitted in a hospital at Puttaparthi. The said show cause

notice was served on the petitioner when he was in hospital. The 1st

petitioner underwent an operation and due to pandemic, the Doctor

advised him not to go outside. Due to the same, the 1st petitioner has

not submitted his explanation and attended for enquiry before the 3rd

respondent subsequent to the notice dated 07.7.2020. It is not out of

place to mention that the 3rd respondent has not issued any notice to

the 2nd petitioner who is the owner of the seized stock. The 3rd

respondent after show cause notice to the petitioner, has obtained

medical analysis report from the competent authorities and without

supplying the same to the petitioners and without following the

procedure contemplated under section 46(6) of A.P.Excise Act 1968,

the 3rd respondent has passed order without conducting any enquiry.

The 3rd respondent passed the said order mainly on the ground that

for not submitting explanation by the 1st petitioner, he has concluded

saying that left with no option he has passed confiscation orders

dated 19.8.2020.

4. Aggrieved by the said proceedings of the 3rd respondent, 1st

petitioner herein filed an appeal before the 2nd respondent. The

appeal filed by the 1st petitioner before the 2nd respondent, the 1st

petitioner has produced medical report and photos of his left leg

position and also other relevant material to support his contentions.

Apart from that, the seized stock is covered by way bill and tax

invoice. The tax invoice clearly shows the ownership of the seized

stock in the name of the 2nd petitioner. It is also stated that tax

invoice no.0043 dated 24.5.2020 is in the name of Nitisha Traders,

DR,J W.P.No.22736 of 2020

product, quantity and vehicle number were also shown. The 2nd

respondent while deciding the appeal filed by the petitioners without

appreciating the evidence placed before him along with the appeal in

a perspective manner has rejected on flimsy grounds.

5. The jaggery was seized on movement transporting it to

Santhinagar, Gadwal, Telangana State and it is not found with any

intoxicant material. As decided by the Hon'ble High Court in various

writ petitions that the possession and transportation of jaggery is not

an offence under section 34 of the Excise Act. Infact the jaggery is

not an intoxicant within the meaning of section 2(19). No other

material was found along with the jaggery. Hence it cannot be

concluded that the property seized can be used as an intoxicant of

illicit manufacturing under section 52 of A.P.Excise Act. Without

considering the grounds raised by the petitioner in the appeal, the 2nd

respondent has rejected the appeal in his order dated 04.11.2020.

Hence the writ petition.

6. 2nd respondent has filed counter denying the allegations made

in the writ petition. During the pandemic, as per the guidelines issued

by the Central Government during total lockdown, police authorities

have regularly conducting checking to the vehicles movement to

control ingress and egress of entry into the District jurisdiction. At

that point of time on 25.5.2020 at about 7.30 p.m., on receipt of

credible information, the 4th respondent and his staff were conducting

regular checking on National Highway 44 at Somadevapalli within the

limits of 4th respondent and found a vehicle Ashok Leyland make lorry

bearing no.TN 33 AS 4896 coming from Bangalore high way and on

noticing police personnel in uniform, the driver of the lorry

accelerated speed of the vehicle to escape from police. However, the

DR,J W.P.No.22736 of 2020

4th respondent succeeded to intercept the vehicle and on enquiry who

is the sole person in the lorry revealed that the lorry containing

jaggery of 500 polythene bags each bag containing nearly 30kgs

which comes to total 15,000 kgs. On further enquiry, the driver of

the vehicle revealed that the details of the owner of the vehicle and

he could not produce any way bill or transport permits in respect of

the jaggery which is being transported in the said vehicle. On further

enquiry, the driver of the vehicle has revealed that the jaggery was

gathered from unknown people at Pilakayalapalem, Namakal Distrcit

of Tamilnadu state and he has instructions from the owner of the

vehicle that the jaggery should be delivered at Jogulamba Gadwal

District of Telangana State for distillation of ID liquor. Basing on the

confession of the driver, the 4th respondent has seized the lorry and

contraband under cover of mediators report and registered Crime

No.925 of 2020 dated 25.5.2020 for the offences punishable

u/s.34(e), 50, 34(2) of A.P.Excise Act 1968 and sec.7(a) r/w 8(e) of

A.P.Excise Act 1995 and Sec.3 of GUR Regulation of use order 1968.

Subsequent to the registration of the crime, 4th respondent has

submitted the proposal for confiscation of the vehicle and contraband

before the 3rd respondent u/s.46(2) of the Act. In pursuance to the

proposal submitted by the 4th respondent, the 3rd respondent has

issued show cause notice dated 07.7.2020 u/s.46(A) of the Act to the

1st petitioner on 10.7.2020. Despite the notice, when the petitioner

has not submitted any explanation after completing the statutory

period, left with no option, the 3rd respondent has confiscated the

stock as well as vehicle to the State as per the provisions of the Act.

The question of carrying of jaggery being legal or illegal, cannot be

decided at this stage and moreover he is not questioning the

DR,J W.P.No.22736 of 2020

registration of crime and hence his contention will not stand to

scrutiny and it may be true that if the jaggery is found in personal

possession and may be useful to the human consumption it may not

be an offence but in the present instance, contraband was seized and

sent for chemical analysis wherein the analysis report clearly reveals

that the same is not useful for the human consumption. Therefore, it

may be construed that the jaggery which is not useful for human

consumption will be used for distillation of ID liquor. Hence the

contention of the petitioner is not tenable. It is further submitted that

the 1st petitioner has filed an appeal u/s.46(c) of the Act before the

2nd respondent. Having relinquished his right at the stage of

confiscation proceedings, 1st petitioner has filed an appeal before the

2nd respondent which is not at all maintainable. Reply to the

contention of the 1st petitioner that the 3rd respondent has not given

fair opportunity to the petitioner to submit his explanation is wholly

wrong and the fact remains that the 3rd respondent gave 15 days

period statutory notice to the petitioner and waited for almost 40

days. But the 1st petitioner did not choose to file his explanation and

now he cannot claim that the 3rd respondent has not given any

reasonable opportunity and passed confiscation orders as per rules.

7. Basing on the above pleadings, the learned counsel for the

petitioners has assailed the impugned orders of the 2nd respondent

dated 04.11.2020 mainly on two grounds. First one is initially the 3rd

respondent has not followed the principles of natural justice and also

the procedure contemplated under section 46(6) of A.P.Excise Act

1968. Secondly, the order passed by the respondent is contrary to

the ratio decided by the High Court of Andhra Pradesh at Hyderabad

in Chindura Muthaiah and Co. Vs. Deputy Commissioner of

DR,J W.P.No.22736 of 2020

Prohibition and Excise and Ors.1 in W.P.No.16379 and 16389 of

2005 dated 07.12.2005.

8. Learned Counsel for the petitioner has argued that as per clause

19, 20 and 21 of Section 2 of the Act defines intoxicant, intoxicating

drug and liquor. Section 34 deals with penalties for illegal import etc.

Section 34(e) says uses, keeps, or has in his possession any

materials, stills, utensils, implements or apparatus whatsoever for the

purpose of manufacturing any intoxicant other than toddy. Section 45

deals with Liability of certain things to confiscation. Section 46 deals

with Confiscation by Excise Officers in certain cases. In view of clause

19, 20 and 21 of section 2 of the Act, jaggery is not an intoxicant,

intoxicating drug or liquor. Hence the authorities invoking section

34(e) and passing orders under section 46(6) is bad in law. Hence

the orders passed by the 3rd respondent under section 46(e) is totally

non-application of mind. The orders passed by the 3rd respondent in

proceedings dated 19.8.2020 clearly establishes that without issuing

any notice to the 2nd petitioner, he has issued notice only to the 1st

petitioner on 07.7.2020 and for not submitting the explanation by the

1st petitioner, the 3rd respondent has passed orders confiscating the

lorry as well as the stock under section 46(c) of the Act. As against,

the petitioner has preferred an appeal with all relevant material, but

without considering the same, the 2nd respondent has passed order

rejecting the appeal filed by the petitioner.

9. Learned counsel further stated that while filing an appeal, the

petitioners have raised a ground that the 1st petitioner has been

admitted in hospital due to severe diabetes and other problems and

he has submitted that he had underwent surgery and as advised by

2006(2) ALD 367

DR,J W.P.No.22736 of 2020

Doctor, he could not be able to move out side inview of pandemic.

Without considering that aspect, the respondent has rejected the

contention saying as per the documents submitted by the 1st

petitioner, the 1st petitioner was in hospital from 27.7.2020 to

06.8.2020. Hence even before admitting into the hospital or after

discharging from hospital they may submit their explanation. Hence

the ground of admitting into the hospital was rejected saying that the

orders were passed by the 3rd respondent after waiting longer period

than the period prescribed in the statute. The counsel for the

petitioners submits that the 2nd respondent has not considered the

way bill as well as tax invoice filed along with the appeal. The 2nd

respondent has rejected the contention of the petitioner only on the

ground that the tax invoice and way bills were taken at 00.45 a.m. on

26.5.2020. But the instant crime is occurred on 25.5.2020 at 7.30

a.m. Hence the print out of the way bills as well as the invoice was

taken by the petitioners after the crime. Hence the same is not taken

into consideration and rejected. But it is not in dispute that the tax

invoice is dated 24.5.2020 and in the e-way bill it is clearly mentioned

that invoice 43/24.5.2020 and they have also mentioned the vehicle

details in the e-way bill i.e. vehicle no.TN 33 AS 4896 and the date

entered from Enlared, Entered date 25.5.2020/0-6.45 AM and the tax

invoice filed along with the appeal clearly indicates that it is in the

name of Nitisha traders, Santhi Nagar, Telangana and the name of the

stock is cane jaggery 30 kg bags 500 bags and the vehicle number is

TN 33 AS 4896 dated 24.5.2020. Hence without considering the

dates entered in the tax invoice as well as e-way bill, the 2nd

respondent has taken the date of the print out of the said document

DR,J W.P.No.22736 of 2020

into consideration and rejected that the said documents were

obtained subsequent to the crime, is baseless and illegal.

10. Learned Counsel for the petitioners further submitted that the

2nd respondent has rejected the appeal on the other ground that the

analysis report of the Government Regional Prohibition & Excise

Laboratory, Chittoor that the jaggery/stock is not useful for human

consumption and hence presumed that the jaggery which is not useful

for human consumption will be used only for distillation of ID liquor.

But fact remains is that the analysis report clearly stipulate that the

sample numbers 10.772 and 10.773 are contains reducing sugars. It

is jaggery which can be used as raw material in the manufacturing of

illicitly distilled liquor. When the report says that it can be used as

raw material and there is no specific observation in the analysis report

that it is not useful for human consumption, the authorities cannot

presume and assume the report and pass the impugned orders by

rejecting the appeal filed by the petitioner. Finally in an identical case

of the Hon'ble High Court it was clearly held that since admittedly, the

petitioners were only transporting black jaggery, but did not indulge

in manufacture of an intoxicant. Merely because the vehicle was

found in a different route and the same was intercepted and the

respondents cannot presume that the petitioners had indulged in

manufacture of an intoxicant within the meaning of section 34(e) of

the Act and held that the respondents failed to appreciate the facts in

a perspective manner and passed confiscation orders mechanically

and the same was set aside. Even in the instant case also, the

authorities have seized the stock as well as the vehicle only on the

ground that the petitioners are transporting the jaggery for ID liquor

DR,J W.P.No.22736 of 2020

and passed confiscation orders under section 46(6) is wholly

misconceived and the same may be set aside.

11. Learned Government Pleader appearing on behalf of the

respondents has submitted that the 3rd respondent has no knowledge

about the owner of the stock. Hence he has issued notice only to the

owner of the vehicle i.e. 1st petitioner herein. It is not in dispute that

the notice was served on the 1st petitioner but he has not chosen to

submit his explanation within the time despite that the 3rd respondent

has waited for 40 days and passed the impugned orders. Hence there

is no illegality in the orders. As against the same, the 1st petitioner

alone has filed an appeal and even in the appeal was also considered

all the facts and grounds raised by the 1st petitioner was considered

by the 2nd respondent and disposed of on merits in accordance with

Rules. Further stated that here the petitioners have not challenged

the crime. Hence the ratio decided by the High Court is not applicable

to the present case and requested to dismiss the writ petition.

12. Having heard both sides and considering the material placed on

record, it is not in dispute that the 3rd respondent while passing

orders under section 46 has not conducted any enquiry contemplated

under section 46(6). On perusal of the orders of the 3rd respondent

dated 19.8.2020 it clearly reveals that only on the ground of non-

submitting the explanation by the petitioner, he has passed the

confiscation orders under section 46 of A.P.Excise Act 1968. On

perusal of the orders passed by the 2nd respondent on 04.11.2020

when there is a specific ground raised by the 1st petitioner with regard

to submission of medical documents, instead of considering the

documents in perspective manner, the 2nd respondent has only taken

the dates into consideration and rejected the claim of the petitioner

DR,J W.P.No.22736 of 2020

and secondly though the petitioner has filed e-way bill as well as tax

invoice without considering the merits of the documents, the date of

print of the document is taken into consideration and rejected that the

print outs are taken subsequent to the crime and rejected the claim.

13. In view of the above and also considering the judgment relied

on by the petitioners, the impugned orders passed by the 2nd

respondent in Cr.No.491/2020/SEB/C1 dated 04.11.2020 confirming

the order of the 3rd respondent passed in Rc.No.813/2020/B2 dated

19.8.2020 are set aside and the matter is remanded back to the 3rd

respondent. Petitioners are given liberty to submit their explanation

along with all other material and relevant judgment copies and on

submitting the same by the petitioners to the 3rd respondent, the 3rd

respondent is directed to consider the same and pass appropriate

orders on merits and as per Rules.

14. Accordingly, the writ petition is disposed of. No costs.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this Writ Petition shall stand closed.

________________ JUSTICE D. RAMESH Date:23.3.2021 RD

DR,J W.P.No.22736 of 2020

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION No.22736 of 2020

Dated 23.3.2021

RD