M/S. Ramchander Lakshminarayan ... vs The Commissioner,
2021 Latest Caselaw 1483 Tel

            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;

KL,J W.P. No.18802 of 2011

(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/-.

KL,J W.P. No.18802 of 2011

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

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

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.

KL,J W.P. No.18802 of 2011

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

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.

KL,J W.P. No.18802 of 2011

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:

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"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.

KL,J W.P. No.18802 of 2011

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

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