M/S. Waltair Club, vs The State Of Andhra Pradesh,
2022 Latest Caselaw 1563 AP

                                 1


      THE HON'BLE SRI JUSTICE BATTU DEVANAND


                      W.P.NO.18141 of 2021
ORDER:

This Writ Petition has been filed to issue a "Writ of

Mandamus" or any other appropriate writ, with the following

order or direction:

A. To declare the action of the Respondent No.6, in registering Crime No.134/2021 dated 11.08.2021 for alleged violation of Rules 10, 20, 35, 36, 37, 42 & 45 of the Andhra Pradesh Excise (Grant of license of selling by in-house and condition of license) Rules, 2005 ( for short "Rules, 2005), r/w Section 31(1)(b) of AP Excise Act, 1968, as being illegal, arbitrary, ulterior motives, contrary to provisions of A.P. Excise Act, 1968, and in violation of Articles 14, 19, 21 and 300-A of the Constitution of India,

B. To declare the proceedings Rc.No.349/2021/A4 dated 13.08.2021 issued by the Respondent No.4 authorizing and directing the Respondent No.5 to obtain (i) Bye-laws of Petitioner Club, (ii) Working Committee Tenure Particulars,

(iii) list of existing club members and their details & (iv) copy of resolution, under garb of investigation in Cr.No.134/2021 dated 11.08.2021 on the file of Respondent No.6 as being illegal, arbitrary and wholly without jurisdiction and in gross violation of the provisions of AP Excise Act, 1968, and in violation of Articles 14, 19 and 21 of the Constitution of India,

C. To declare the action of the Respondents in seizing/sealing the restaurants in the premises of the Petitioner Club under guise of investigation in Cr.No.134/2021 dated 11.08.2021 on the file of Respondent No.6 as being

illegal, arbitrary, wholly without jurisdiction, without authority of law and highhanded, and in gross violation of the provisions of AP Excise Act, 1968 and in violation of Article 19(1)(g) and 300A of the Constitution of India,

D. Consequently to quash Cr.No.134/2021 dated 11.08.2021 on the file of the Respondent No.6, and

E. Consequential direction to set aside the impugned proceedings Rc.No.349/2021/A4 dated 13.08.2021 issued by the Respondent No.4 authorizing and directing the Respondent No.5 to obtain (i) Bye-laws of Petitioner Club, (ii) Working Committee Tenure Particulars, (iii) list of existing club members and their details & (iv) copy of resolution of the Petitioner Club.

2) The Respondent No.4 filed counter-affidavit.

3) The case of the petitioner is that the petitioner

Club was established in the year 1883 for providing

recreational and other facilities to Europeans who were

working in East Coast Railways and East Coast Battalion and

for other Civilian Officers staying in Visakhapatnam and

constructed halls, auditoria, beauty parlour, library, gym,

dining hall, restaurant, pub, etc. As a part of its recreational

facilities, the petitioner Club intended to make available liquor

to its members, in a designated consumption area, within the

Club premises, for which the petitioner obtained license under

Andhra Pradesh Excise Act, 1968, r/w Andhra Pradesh Excise

(Grant of Licence of Selling by in-house and Conditions of

Licence) Rules, 2005 in Form C-1.

4) The learned counsel for the petitioner submitted

that the Petitioner Club run a bar "1883" (seating room of 35

persons for service and consumption of Liquor) and three (3)

restaurants namely (where no liquor is served), "1883

restaurant" (seating of 60 persons), "AC dining Hall" (seating

of 60 persons) and "Waltair Lounge" (seating of 40 persons),

situated in the premises of the Petitioner Club. On an

application, the Petitioner was granted in-house club license

to sell/service liquor, in the designated consumption area i.e.,

"1883"in Form C-1 (License No.02/2020-21 dated

15.10.2020, issued as under Rule 4(iii) of Rules, 2005), by

the Respondent No.3 after payment of Rs.6,00,000/- as

license fee, for the lease year commencing from 01.07.2020

to 30.06.2021.

5) It is further submitted that on expiry of the above

said license, the Secretary of the Petitioner Club applied for

in-house Club license in Form C-1 for the license period 2021-

22. The Respondent No.2 examined the said application in

detail and after due enquiry, granted C-1 license vide

proceedings C.R.No.3147/2021/CPE/E2 dated 08.08.2021 in

favour of the Petitioner Club with a permission to allow

consumption of liquor in the club premises as was permitted

for the year 2020-21 and further requested the Respondent

No.4 to take necessary action for issuance of license in form

C-1 for the years 2021-22. The issuance of license in Form

C-1 for the lease year commencing from 01.07.2021 to

30.06.2022 was mere formality for the Respondent No.4.

6) It is further submitted that on 10.08.2021 the

Respondent No.6 visited the premises of the Petitioner Club

and proceed to the Bar which is called "1883" for inspection.

During the course of inspection, he alleged that "old stock" is

being sold and due to that reason he sealed the Bar along

with three other restaurants i.e., "1883 restaurant (seating of

60 persons), "AC dining Hall (seating of 60 persons) and

"Waltair Lounge" (seating of 40 persons), which do not serve

or permit consumption of liquor. The representatives of the

Petitioner Club requested the Respondent No.6 that the liquor

store room and bar can be sealed irrespective of the

untenable and baseless allegations, but the other three

restaurants may be permitted to operate as elderly and

families visit daily for lunch and dinner. But, the Respondent

No.6 refused the said request.

7) It is further submitted that the Respondent No.4

served proceedings in Rc.No.349/2021/A4 dated 13.08.2021

upon the petitioner club wherein it is stated that the

Respondent No.4 instructed the Respondent No.5 to obtain (i)

Bye-laws of petitioner club, (ii) Working Committee Tenure

Particulars, (iii) list of existing club members and their details

and (iv) copy of resolution for the purpose of investigation in

FIR.No.134/2021 dated 11.08.2021 on the file of the Special

Enforcement Bureau Station, Visakhapatnam.

8) It is further submitted that from the impugned

proceedings, it was revealed that FIR.No.134/2021 dated

11.08.2021 on the file of Respondent No.6 was registered

against the petitioner club for alleged violation of Rule 10, 20,

35, 36, 37, 42 and 45 of AP Excise (Grant of license of selling

by in-house and condition of license) Rules, 2005, r/w Section

31(1)(b) of A.P. Excise Act, 1968. But, the petitioner is not

aware of the same and only after receipt of the impugned

proceedings, the petitioner club came to know about the said

crime.Even after representations to the Respondents to

provide copy of the FIR, they did not provide the same to the

petitioner club. Thereafter, after much persuasion, it was

informed that the said criminal case was registered for alleged

offence of selling of "old liquor" stock under the new renewed

license.

9) It is contended by the learned counsel for the

petitioner that the Respondent Nos.4 & 5 under the guise of

investigation in FIR.No.134/2021 had visited the petitioner

club premises and sealed four different halls/restaurants in

the club premises. The Respondent No.4 vide proceedings,

dated 13.08.2021 directed the Respondent No.5 to obtain (i)

Bye-laws of petitioner club, (ii) Working Committee Tenure

Particulars, (iii) list of existing club members and their details

and (iv) copy of resolution, which goes to show that under the

garb of investigation, the Respondents are trying to interfere

with the internal affairs of the club members. The said

documents are irrelevant for the purpose of the alleged

enquiry.

10) It is further contended that the licensed premises

is clearly demarcated, which is a consumption area of 278.25

sq. mts. in the premises of the club located in D.No.26/27,

Waltair Uplands, Visakhapatnam, with the boundaries set out

in the License Form C-1. He also contended that the

Respondents have no power or jurisdiction under the A.P

Excise Act, 1968, to seize premises. The Respondent

authorities at best can seize or detain anything liable for

confiscation under Section 45 and licensed premises are not

something that can be confiscated.

11) It is further contended that there is no order of

confiscation of any property, except seizing of premises of the

petitioner club, and therefore, the registration and

continuation of Crime No.134 of 2021 dated 11.08.2021 by

the Respondent No.6, is ex-facie illegal. Except the allegation

that the petitioner club selling old stock, no confiscation

proceedings were made.

12) It is contended that the State of Andhra Pradesh

constituted a SIT (Special Investigation Team) vide

G.O.Rt.No.2313 dated 17.10.2019 and issued a notice dated

27.12.2020 to the petitioner club to produce documents

pertaining to the land of the club and after exchange of

notices and correspondence between Waltair Club and SIT,

another notice dated 06.01.2021 was issued to the petitioner

club directing its office bearers to file a reply and to appear on

12.01.2021 and later on 20.01.2021. Aggrieved by the same,

the petitioner filed W.P.No.1479 of 2021 before this Hon'ble

Court and obtained interim orders. It is contended that in one

way or other, the State of Andhra Pradesh, through its

instrumentalities, has been trying to interfere with the smooth

functioning of the Club with ulterior motives and to achieve its

goal of closing down the petitioner club. To overreach the

interim orders in W.P.No.1479/2021 of this Court, the

FIR.No.134/2021 dated 11.08.2021 is registered and the

proceedings in Rc.No.349/2021/A4 dated 13.08.2021 are

issued against the petitioner's club.

13) The learned counsel for the petitioner further

submitted that the Respondents have illegally and without any

authority of law have seized/sealed the restaurants of the

Petitioner Club under the guise of investigation and as such

the Petitioner Club is incurring huge loss on account of the

closure of restaurants and also that substantial amounts were

already paid to the Respondents towards license fee for the

current year. Therefore, unless and until this Hon'ble Court

intervenes and directs the Respondents to permit the

Petitioner Club to operate the Restaurants within the premises

by setting aside the FIR.No.134/2021 dated 11.08.2021

registered by the Respondent No.6 including investigation and

the proceedings dated 13.08.2021 issued by the Respondent

No.4, the petitioner will be put to irreparable loss and injury

and grave injustice.

14) In the counter-affidavit, the Respondent No.4

submitted that the petitioner club has not filed the copy of

mediators report or the FIR, dated 11.08.2021. It is

submitted that in fact, on the date of recording the mediators

report, dated 10.08.2021, one Mr. T. Nagender, who was

present there, a self-claimed nowkarnama at the Bar and in

his presence only mediators recorded Panchanama and

immediately after completion of record of the same, the

Respondent No.5 has furnished a copy of the said mediators

report to the said person and released him on furnishing self

bond. Thereafter, the Respondent No.5 handed over the file

to the Respondent No.6, who has registered the said crime on

11.08.2021 and immediately after registration of the crime,

Respondent No.6 has produced case dairy before the

concerned Magistrate Court. Though the petitioner has the

ample time to obtain the copy of FIR, he filed the present writ

petition without filing the same.

15) It is further contended that the Respondent No.5

obtained CC TV Footage from one P. Srinivasa Rao, the

Manager of the Club for the investigation purpose. As seen

from the CC TV Footage, it revealed that the petitioner has

continuously selling the liquor in the club premises without

any valid license and stock permit which is an offence.

16) The Respondent No.4 submitted that due to

Corona lock down, the licensees of C-1, TD1 and 2b bars were

not get renewed/obtained the licenses as per the Rules and

hence, in view of the prevailing special circumstances, the 1st

Respondent has issued a circular vide C.R. e-file No.REV04-

15023/22/2020, dated 04.09.2020 to open the bars and

in-house licenses after unlock No.4 of COVID-19 lockdown

and also issued directions giving liberty to make the

applications beyond the cutoff date to obtain/renew licenses

and then the petitioner has again made its application for

grant of C-1 license in the month of October and hence, the

2nd Respondent had issued the C-1 license on 15.10.2020. It

was made clear that irrespective of the issuance date of

license, it will expire by 30th June of the following year i.e.,

30.06.2021.

17) It is further submitted that the petitioner has made

an application for grant of C-1 license on 08.07.2021 and the

Respondent No.4 has recommended to issue license to the

petitioner and sent proposals to the Respondent No.2 through

the Respondent No.3 and in turn the Respondent No.2 has

issued proceedings dated 08.08.2021. The said proceedings

was received by the Respondent No.4 on 11.08.2021. The 2nd

Respondent has categorically directed the Respondent No.3 to

take necessary action for issuance of license in Form C-1 for

the years 2021-22. As seen from the mediators report, it is

very clear that at the time of detecting the crime, the

representative of the petitioner, who was present during sale

of the illegal liquor, failed to produce the copy of the license

issued for the years 2021-22, But he has shown the expired

license copy which is per se illegal and they are not entitled to

sell the liquor under the guise of the expired license.

18) The 4th Respondent further contended that the

petitioner has sold the liquor without obtaining any

transport/import permits and without seeking any supply of

the liquor by the competent authority and this itself shows the

petitioner has allowed the persons to consume the old stocks

which were stored in unauthorized place which was not shown

in the blue print of the licensed premises of the club. In

contravention of the Rules 15, 16, 19 and 20, the petitioner

has stored the liquor stocks in unauthorized place and allowed

to consume the illegally in the restaurants and with a view to

curtail the further commission of offences, the bar, authorized

store room and other restaurants were sealed under the cover

of panchanama.

19) It is further contended that the proceedings dated

13.08.2021 issued to the 5th Respondent to collect some

documents relating to the petitioner club which is purely

internal proceedings and the same intended to obtain certain

information as part of the further investigation of the Crime

No.134 of 2021. The Rule 4 (iii) says the Holder of the Form

C-1 shall be permitted to sell Indian Made Foreign Liquor and

foreign liquor in glasses or pegs for consumption within the

licensed premises of the club by the boanfide members.

Therefore, it is necessitating as part of enquiry whether the

petitioner club has been selling the liquor to the bonafide

members or not.

20) The 4th respondent submitted that the petitioner

has committed grave offence that without any valid license

sold the liquor in the club premises and possession of liquor

without permit is also an offence under Section 34 of the AP

Excise Act, 1968 and the 5th Respondent is only the

detecting/inspecting authority and due to the reasons only, he

entrusted the case to the 6th Respondent, who is investigating

authority under the Act. Therefore, in the above said facts

and circumstances, the writ petition is liable to be dismissed.

21) The petitioner filed reply to the counter-affidavit of

the 4th Respondent denying the counter averments and

reiterating the averments made in the affidavit filed along

with the writ petition. He contended that immediately after

service of copy of FIR along with relevant papers on the

accused, the petitioner filed the copy of FIR and Panchanama

as additional material papers in I.A.No.6 of 2021 in this writ

petition on 31.08.2021. It is contended that, the Respondent

No.6 without any reason closed and seized the restaurants

and dining halls in Petitioner club and drew up a panchanama

and forcibly obtained the signature of the said Nagender on

the dotted lines in the panchanama, as per dictation of the

Respondent No.6. The said Nagender is willing to give an

affidavit to that effect.

22) It is further contended in the reply that it is not the

case of the Respondents that the petitioner club is selling

liquor outside the consumption area and stocking the same

outside the designated area. The case of the Respondents

appears to be that the petitioner club is selling liquor without

a license. The petitioner club has been scrupulously following

all the Rules, including confining to the designated area of

sale and consumption, as also by exhibiting the blue print of

the licensed premises in a conspicuous place.

23) It is further contended that as per Rule 5 (1) of

Andhra Pradesh Excise (Grant of License of Selling by in-

house and Conditions of License) Rules, 2005, the 4th

Respondent is the competent authority to receive application

along with fee for grant of Form C-1 license to the petitioner

club and the 2nd Respondent is the competent authority to

cause enquiry. As can be seen from the proceedings dated

08.08.2021 issued by the 2nd Respondent, refers to grant of

license and the Respondent Nos.3 and 4 have caused

enquiries and sent reports to the 2nd Respondent for grant of

license. The 2nd Respondent in terms of Rule 5(3) granted

license to the petitioner club. As such, after granting of

license by the 2nd Respondent, levelled criminal charges

against the petitioner on 10.08.2021, is arbitrary and only

with malafide intention and continuance of criminal

proceedings would be a gross abuse of process of criminal

law.

24) It is further contended that Section 45 only

empowers the Respondents to confiscate intoxicants,

materials, utensils, apparatus among other things and entire

premises cannot be confiscated. While the petitioner is

questioning the very registration of crime as being illegal,

pending adjudication of the W.P.1479 of 2021, Respondents

cannot be asked for information under the guise of

investigation. Even as per the 6th Respondent, the petitioner

had valid license as on the date of registration of the crime

and therefore, the alleged offences registered under Section

31 of the Act is untenable. He further contended that any

confiscation can be ordered only in terms of Sections 45 and

46 of the A.P Excise Act, 1968 and the Respondents have no

jurisdiction to seize the premises. Therefore, he prays to

allow the writ petition.

25) To substantiate their contentions, both the counsel

placed reliance on the following judgments:

Learned counsel for the petitioner:

1) YeduruSreenivasulu Reddy v. The state of A.P.,1

2) Sai Krishna Pidathala v. The State of A.P. and others2

3) Yakub Abdul Razak Memon & others v State of Maharashtra through CBI, Bombay3

Learned counsel for the respondents;

1) Kaptan Singh v. State of Uttar Pradesh and others4; and

2) Gian Chand and others v. State of Haryana5; and

3) State of Punjab v. Balbir Singh6; and

4) Balbir Singh v. State7.

2001 ALD (Crl) 347 = Manu/AP/1238/2001

Manu/AP/0805/2021

(2013) 13 SCC 1

2021 SCC Online SC 580

(2013) 14 SCC 420

(1994) 3 SCC 299

(1996) 11 SCC 139

26) Heard Sri D.V.Sitharam Murthy, learned Senior

Counsel appearing on behalf of Sri N. Ashwani Kumar, learned

counsel for the petitioner on record and the learned

Government Pleader for Prohibition and Excise appearing on

behalf of the respondents and perused the material available

on record.

27) After hearing the learned counsel and on

examination of the entire record, in our view, the following

two Points are to be considered for adjudication:

i) Whether the petitioner is running bar in the premises

of the petitioner's club with a valid license required

under the Andhra Pradesh Excise (Grant of license of

selling by in-house and condition of license) Rules,

2005, or not?, and

ii) Whether the respondents followed the procedure

prescribed under law for seizure of in-house bar and

restaurants situated in the premises of the petitioner's

club and registering a case in FIR No. 134/2021 against

the Petitioner or not ?

28) To deal with Point No.1, in our view, it is appropriate

to extract the relevant rules of the Andhra Pradesh Excise

(Grant of License of selling by in-house and condition of

license) Rules, 2005, as extracted hereinunder:

4. Licences and permits

(i) xxxxxxxxxx

(ii)xxxxxxxxxxxx

(iii) In-house Club licence (in Form C-1): The holder of the licence in Form C-1 shall be permitted to sell Indian Made Foreign Liquor and Foreign Liquor in glasses or pegs for consumption within the licensed premises of the club by the bonafide members but he shall not sell Indian Made Foreign Liquor and Foreign Liquor for removing it out of the licensed premises of the club.

Provided that the licence holder shall not purchase or stock Indian Made Foreign Liquor and Foreign Liquor in bottles of sizes less than 750 ml except beer, wine and Ready to Drink Varieties.

5. Application for licence and procedure for grant of Licence:

(1) The application for the grant of a licence shall be in Form IHA-1 for Licenses in Forms TD-1, TD-2, CS-1, CS- 2, CS-3, AL-1 and EP-1 and in Form IHA-2 for licence in Form C-1 respectively and may be submitted to the Prohibition and Excise Superintendent of the district where the applicant's premises is to be licensed or other authority competent to grant licence.

(2) The Prohibition and Excise Superintendent, after making such enquiry as he may think necessary, to ascertain the bonafides of the applicant and verifying the particulars furnished in the application grant the licence if he is competent to grant. In case he is not competent to grant the licence applied for, examine the suitability of the premises for granting License and forward the same to the Commissioner of Prohibition and Excise along with his report through the Deputy Commissioner of Prohibition and Excise.

(3) The Commissioner of Prohibition and Excise may grant the licence after causing such enquiry as he may deem fit.

(4) The applicant before issue of the licence shall execute a counterpart agreement in Form CG-1 on the Stamp paper of requisite value as per provisions of the Indian Stamp Act, 1899.

8. Licensing authorities:- The Commissioner of Prohibition and Excise shall be competent to grant the Licenses specified under Rule 4 except in the case of In- house sale in Military Canteen (Licence in Form CS-2) and Event Permit (in Form EP-1) which shall be granted by the Prohibition and Excise Superintendent concerned.

29) A perusal of the above rules, the Commissioner of

the Prohibition and Excise is the competent authority to grant

C-1 (in-house) license. In the present case, on consideration

of the application made by the petitioner for C-1 license for

the sale of Indian made Foreign Liquor and Foreign Liquor in

the name of M/s Waltair Club at D.No.1050-26 &27, Waltair

Uplands, Visakhapatnam District, and the report of the

Superintendent, Prohibition and Excise, Visakhapatnam, dated

22.07.2021 and the report of the Deputy Commissioner of

Prohibition and Excise, Visakhapatnam, dated 24.07.2021, the

Commissioner of Prohibition and Excise, after examining the

same in detail and after due enquiry, granted in-house license

in Form C-1 in favour of the petitioner, vide proceedings in

C.R.No.3147/2021/CPE/E2 dated 08.08.2021, under Rule 8 of

the Andhra Pradesh Excise (Grant of license of selling by in-

house and condition of license) Rules, 2005, with a permission

to allow consumption area (278.25 sq. mts) as was permitted

for 2020-2021. In the Proceedings dated 08.08.2021, while

granting in-house license in favour of the petitioner, the

Superintendent, Prohibition and Excise, Visakhapatnam, is

requested to take necessary action for issuance of license in

Form-C1 for the year 2021-2022. On careful examination of

the Proceedings of the Commissioner of the Prohibition and

Excise, dated 08.08.2021, in-house license was granted in

favour of the petitioner. Then, the Superintendent, Prohibition

and Excise, Visakhapatnam, has to issue license in Form-C1

for the year 2021-2022 to the petitioner.

30) It is to be noted that for the year 2020-2021 also,

the petitioner was granted in-house license by the

Commissioner of Prohibition and Excise and License in Form-

C1 was also issued by the Superintendent, Prohibition and

Excise, Visakhapatnam, in favour of the petitioner and in view

of the said license, the petitioner is running bar in the

premises of the petitioner's club. As and when the

Commissioner of Prohibition and Excise, who is the competent

authority, granted an in-house license under Rule 8 of the

Rules, 2005, issuing the licence in the prescribed format i.e.,

Form-C1 by the Superintendent, Prohibition and Excise,

Visakhapatnam, is a mere consequential action. The

Superintendent, Prohibition and Excise, Visakhapatnam,

would not have any authority to refuse license in Form-C1 to

the petitioner, in the light of the Order dated 08.08.2021 of

the Commissioner of Prohibition and Excise. As the petitioner

is having in-house license for 2020-2021, which is valid up to

30.06-2021, and by making application for in-house license

for the year 2021-2022 and in view of the proceedings issued

by Respondent No.2, dated 8.08.2021, the petitioner

commenced the business and run the bar, subject to issuance

of license in Form-C1 by the Superintendent, Prohibition and

Excise, Visakhapatnam. As such, in the present case, the

respondents ought not to have come to a conclusion that the

petitioner running the bar in the club premises without a valid

license as already in-house license was granted by the

competent authority on 08.08.2021 and issuing the license in

the prescribed format by the concerned Superintendent,

Prohibition and Excise, is an empty formality though the

petitioner has to submit a counter part agreement as

submitting a counter part agreement is also a just formality.

31) In view of the above discussion, Point No.1 is

answered in favour of the Petitioner and against the

Respondents.

32) To deal with Point No.2, in our view, it is expedient

to have a glance of Sections 53 and 59 of the A.P. Excise Act,

Rule 40 of the Andhra Pradesh Excise (Grant of license of

selling by in-house and condition of license) Rules, 2005, and

Section 100(4) of the Code of Criminal Procedure for better

appreciation of the facts involved in this case:

Section 53 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 on 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.

Section 59 of A.P. Excise Act:

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 40 of the Andhra Pradesh Excise (Grant of license of selling by in-house and condition of license) Rules, 2005:

Officers authorized to inspect premises: Any officer not below the rank of a Prohibition and Excise Sub Inspector may enter and inspect the licensed premises during the working hours and inspect and verify all the accounts, registers and stocks. It shall be competent for such inspecting officer to take such samples as might be necessary, or to take charge of such records and registers as might be necessary, and it shall be incumbent on the license to offer reasonable assistance for such inspecting officers to inspect, verify and to take samples. For any records removed from the premises, the Prohibition and Excise officer should give a receipt or in the alternative make an entry in the inspection book in this regard.

Section 100 (4) of the Code of Criminal Procedure:

"...PERSONS IN CHARGE OF CLOSED PLACE TO ALLOW SEARCH:

(1).........

(2).........

(3).........

(4) before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do..."

33) On careful perusal of the above provisions of law, it

is established that the respondents have to follow the

procedure prescribed under the Andhra Pradesh Excise Act,

and the Rules made thereunder and the procedure provided

under Section 100 (4) of the Code of Criminal Procedure. In

the present case, the basis for registering a criminal case in

FIR No.134 of 2021 on the file of Respondent No.6 is the

"Panchanama Report" dated 10.08.2021 drafted between

06.30 pm to 09.35 pm at in-house bar situated in the

petitioner's club.

34) On careful examination of the Panchanama's Report

dated 10.08.2021, it contains the signatures of the Prohibition

and Excise Department Officials only along with one

T. Nagendra Babu, who claimed as Nowkarnama of the

petitioner. It appears, no independent panchas/mediators are

present at the time of conducting Panchanaama by

respondent No.6. As per the procedure provided under

Section 100 (4) of the Code of Criminal Procedure, before

making a search, the concerned Officer shall call upon two or

more independent and respectable inhabitants of the locality

in which the place to be searched is situate or any other

locality if no such inhabitant of the said locality is available or

is willing to be a witness to the search. In the present case, it

appears, no such attempt was made by the 6th Respondent to

follow the procedure prescribed under Section 100 (4) of the

Code of Criminal Procedure while conducting search of the

petitioner's in-house bar on 10.08.2021 to secure

independent persons to act as Panchas/Mediators.

35) For the aforesaid reasons, in our view, the

inspection and seizure made pursuant to the Panchanama

Report dated 10.08.2021, which is the basis for registering

the FIR No.134 of 2021 by the 6th respondent is vitiated and

contrary to the procedure contemplated under law.

Accordingly, in the considered opinion of this Court,

registering a case against the petitioner by the 6th respondent

in FIR No.134 of 2021 is nothing but abuse of process of law,

and accordingly, it has to be quashed.

36) The opinion of this Court on this aspect is fortified

by the decisions of this Court in Yeduru Sreenivasulu

Reddy's case (1st Supra) and Sai Krishna Pidathala's case

(2nd Supra), wherein it is held that at the time of seizure, they

have to conduct Panchanama/Mediators Report in the

presence of the independent mediators by following the

procedure prescribed under Section 100 (4) of the Code of

Criminal Procedure.

37) Though this Court has fully agreeing with the

proposition of law laid down in the judgments relied on by the

learned Government Pleader, in our view, those judgments

are not applicable to the facts and circumstances of the

present case.

38) In view of the above discussion, Point No.2 is

answered in favour of the Petitioner and against the

Respondents.

39) For the aforementioned reasons, this Writ Petition is

allowed with the following directions:

i) The FIR No.134 of 2021, dated 11.08.2021 on the

file of the 6th respondent is quashed;

ii) Consequently, the Proceedings in

RC.No.349/2021/A4, dated 13.08.2021, issued by the

4th respondent is set aside.

40) There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, in

this case shall stand closed.

______________________________ JUSTICE BATTU DEVANAND Date: 29.03.2022 PGR/eha

HON'BLE SRI JUSTICE BATTU DEVANAND

W.P.No.18141 OF 2021

Dt: 29.03.2022

eha

.