Vasava Srisailam vs The State Of A.P., Another
2022 Latest Caselaw 442 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

              CRIMINAL PETITION No.5024 of 2014
ORDER:

This petition is filed by the petitioner/owner of the property

under Section 482 read with 457(1) Cr.P.C. to set aside the order in

Cr.MP No.572 of 2014 in CrimeNo.47 of 2014 passed by the Special

Judicial Magistrate of First Class (Prohibition and Excise cases),

Khammam dated 25-2-2014.

2. The case of the petitioner in brief was that on 9-2-2014 at

5:00 PM, the ASI of PS Khanapuram Haveli stopped a TATA Ace

vehicle bearing no AP 24 TA 5651 at Raghunadhapalem Petrol Bunk

on Illendu, Khammam High way and seized 30 bags of jaggery of 15

quintals and 5 bags of alum of 2 quintals under the cover of

panchanama in the presence of panch- witnesses and lodged a report

in the PS at 6:30 PM. Basing on the same a case was registered vide

Cr.No 47 of 2014 u/S 34(e) of AP Excise Act.

3. The petitioner/owner of the property/A1 filed a petition

under Section 457(1) Cr.P.C. before the Special Judicial Magistrate of

First Class (Prohibition and Excise cases), Khammam for interim

custody of 30 bags of black jaggery and 5 bags of alum. The learned

JFCM dismissed the petition on the ground that the court had no

jurisdiction to pass the order relating to the seized property.

4. Aggrieved by the said order of the learned Magistrate, the

petitioner filed this petition contending that he was the owner of the

seized property, he was running business with valid license to sell the Dr.GRR,J

seized property, the court ought to have granted interim custody of the

seized property instead of directing to file the same before the Deputy

Commissioner of Prohibition and Excise. The sale, purchase and

transportation of black jaggery was not an offence, consequently the

possession of black jaggery would not constitute an offence

punishable under A.P. Prohibition Act. Black jaggery was an

agricultural produce, further the agricultural market committee was

collecting the market fee, the commercial tax authorities were

charging 4% of sale price for issuing way bills for transportation of

black jaggery, thus the black jaggery was neither an intoxicant nor a

prohibited commodity. The Commissioner of Prohibition and Excise

vide circular dated 22-12-2001 clarified directing the law enforcing

authorities not to harass the business people doing business in black

jaggery purchasing the same under valid bills. Even the Govt. of AP

issued Memo No 47802/Ex.III.1/2006-13 dated 20-12-2010 holding

that black jaggery or rotten jaggery or any other form of jaggery were

viewed as agriculture produce or its bi-products and inclusion of the

same in the list of the materials used in the manufacture of ID Liquor

might have adverse affect on the interest of genuine ryots and traders

and therefore directed not to impose restrictions on any agriculture

produce, particularly on jaggery, black jaggery or rotten jaggery. He

further submitted that for no fault of him, his stocks had been seized

and were lying in the premises of SHO Khanapuram Haveli PS,

Khammam. They were exposed to atmospheric calamities and if the

stocks were kept idle there was every chance of getting damaged due Dr.GRR,J

to which he would suffer irreparable loss and prayed to set aside the

order of the JFCM Khammam, in Cr.MP No 572 of 2014 in Cr.No 47

of 2014 dated 25-2-2014.

5. Heard the learned counsel for the petitioner and the learned

Assistant Public Prosecutor.

6. The learned counsel for the petitioner submitted that the

order of the court below was illegal, unjust and vitiated by material

irregularities, the reasons given by the court below were unsustainable

and argued on the same lines as raised in the grounds of the petition.

7. The learned Assistant Public Prosecutor when asked to

verify whether the property was still lying in Khanapuram Haveli

Police Station and whether it was damaged or in a position to return,

submitted that the case was transferred to Excise Department on the

point of jurisdiction but could not state about the condition of the

property. The learned Assistant Public Prosecutor submitted that it

was the Deputy Commissioner of Prohibition and Excise who was

having jurisdiction to pass orders for release or confiscation of the

material seized under Section 46 of AP Excise Act 1968 and the

appeal would lie before the Commissioner of Prohibition and Excise

and the Magistrate courts had no jurisdiction to pass orders under

Section 457(1) CrPC.

8. Perused the record. The confession cum seizure panchanama

and the FIR issued by the Police would disclose that the Police had

seized the material on reasonable apprehension that it would be used

for preparation of liquor. Though the petitioner contended that he was Dr.GRR,J

having license to sell the seized property failed to file the same before

Special Judicial Magistrate of First Class (Prohibition and Excise

cases), Khammam, as seen from the order of the court. He also failed

to file the way bills for transportation though filed the circular issued

by the Commissioner of Prohibition and Excise, AP Hyderabad vide

CR No 4294/DPF/2001/C5 dated 22-12-2001 and the Memo issued by

the Govt. Revenue (Ex.III) Department vide Memo No. 47802/Ex.III.

1/2006-13 dated 20-12-2010.

9. As per Section 46 of the Excise Act, it reads as follows:

"46. Confiscation by Excise Officers in certain cases. - (1) Notwithstanding anything contained in this Act or any other law for the time being in force, where anything liable for confiscation under Section 45 is seized or detained under the provisions of this Act, the Officer seizing and detaining such property shall, without any unreasonable delay, produce the said seized property before the Deputy Commissioner of Prohibition and Excise [and/or the Deputy Commissioner of Special Enforcement Bureau and/or the Superintendent of Police/or the Executive Magistrate] who has jurisdiction over the area.

(2) On production of the said seized property under sub- section (1) the Deputy Commissioner of Prohibition and Excise [and/or the Deputy Commissioner of Special Enforcement Bureau and/or the Superintendent of Police/or the Executive Magistrate] if satisfied that an offence under this Act has been committed, may, whether or not a prosecution is instituted for the commission of such an offence, order confiscation of such property. (3) While making an order of confiscation under sub- section (2), the Deputy Commissioner of Prohibition and Excise [and/or the Deputy Commissioner of Special Enforcement Bureau and/or the Superintendent of Police/or the Executive Magistrate] may also order that such of the properties to which the order of confiscation relates which in his opinion cannot be preserved or are not fit for human consumption be destroyed. (4) Where the Deputy Commissioner of Prohibition and Excise [and/or the Deputy Commissioner of Special Enforcement Bureau and/or the Superintendent of Police/or the Executive Magistrate] after passing an order of confiscation under sub-section (2) is of the opinion that it is expedient in the public interest so to do, he may order the confiscated property or any part thereof to be sold by public auction or dispose of departmentally.

Dr.GRR,J

(5) The Deputy Commissioner of Prohibition and Excise [and/or the Deputy Commissioner of Special Enforcement Bureau and or the Superintendent of Police/or the Executive Magistrate] shall submit a full report of all particulars of confiscation to the Commissioner of Prohibition and Excise [and/or to the Commissioner, Special Enforcement Bureau and/or District Magistrate as the case may be] within twenty-four hours of such confiscation.

(6) The [District Magistrate/Deputy Commissioner of Prohibition and Excise and/or the Deputy Commissioner of Special Enforcement Bureau and/or the Superintendent of Police/or the Executive Magistrate] shall, for the purposes of this Act have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when making enquiries under this section in respect of the following matters, namely :

(a) receiving evidence on affidavits;

(b) summoning and enforcing the attendance of any person and examining him on oath; and

(c) compelling the production of documents."

10. Section 46E is pertaining to Bar of Jurisdiction and the

same would read as follows:

46E. Bar of jurisdiction. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974) when the Deputy Commissioner of Prohibition and Excise or the Appellate Authority is siezed with the matter under this Act, no court shall entertain any application in respect of excisable articles any package, covering, receptacle, any animal, vehicle or other conveyance used in carrying such articles as far as its release, confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the Appellate Authority with regard to the disposal of the same shall be exclusive.

11. This court in several judgments held that under Section 46

of Excise Act, the party has to approach the Deputy Commissioner

of Prohibition and Excise for interim custody of the property

seized.

Dr.GRR,J

12. In Banavathu Babu v. Government of AP1, this Court

observed that:

"There is considerable amount of force in the submission made by the learned Government Pleader. It is appropriate to note that the A.P. Excise Act and A.P. Prohibition Act are special legislations. When a special piece of legislation confers power of confiscation and confers power upon a particular authority to deal with such property and further when that provision sets out that notwithstanding anything contained for the time being in force in any other law, the intention of the statute maker becomes explicitly clear. The power available to a Magistrate under Section 457 of the Code of Criminal Procedure shall be construed to have been taken away and corresponding power is conferred upon the notified agency by the statute maker (Emphasis supplied). Section 46 of the Act specifically dealt with the issues relating to confiscation of properties, which are seized in connection with the offences committed under the Act. Therefore, it is the Deputy Commissioner of Prohibition & Excise concerned, who has the exclusive authority and power to deal with all the aspects relating to confiscation of the property seized in relation to prohibition and excise offences."

13. In another unreported judgment in Azmeera Saraiah v.

State of AP and another in Crl.P.Nos.2512, 3123 & 3163 of 2013

dated 30.04.2013, similar view is expressed as follows:

"The crucial question which requires consideration in this case is that at what stage the petitioner has to approach this Court under Section 482 Cr.P.C. When the provisions of A.P. Excise Act clearly mandate that the Deputy Commissioner of Prohibition and Excise is seized of the matter and any property/vehicle is seized in connection with commission of offence under A.P. Excise Act, the Deputy Commissioner alone should be approached for interim custody of the property, the petitioners without approaching the Deputy Commissioner of Prohibition and Excise cannot approach this Court directly under Section 482 Cr.P.C. seeking interim custody of the vehicle. Further when the Deputy Commissioner of Prohibition of Excise alone is empowered to direct interim custody of the property/vehicle seized in connection with the commission of offence under A.P. Prohibition and Excise Act the petitioner cannot approach the Magistrate wrongly and thereafter, under the guise that the Magistrate returned the application cannot approach this Court under Section 482 Cr.P.C."

2014 6 ALD 380 Dr.GRR,J

14. Similar view is also expressed in an unreported judgment

in K.Sasi Kumar v. State of A.P., in Crl.P.No.10825 of 2014, dated

24.09.2014, where it was held that:

"In view of the authoritative precedential jurisprudence upholding the power of Deputy Commissioner of Prohibition and Excise, petitioners cannot by-pass the said authority and file petitions before the concerned Judicial Magistrate of First Class or before the High Court without exhausting remedy before the statutory authority"

15. Considering the above judgments of this court, the

petitioners cannot bypass the said authority and file petition before the

concerned Judicial Magistrate of First Class or before the High Court

without exhausting the remedy before the statutory authority. Hence,

the petition is found devoid of merit and is liable to be dismissed.

16. In the result, the Criminal Petition is dismissed.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J February 04, 2022 KTL