WP/24289/2020 of SMT. DAITHA SRAVANTHI AND ANOTHER Vs THE STATE OF TELANGANA AND 2 OTHERS on 31 December 2020

1. Smt. Daitha Sravanthi, W/o. Sampath Kumar, Aged about 30 years, Occ:Housewife, R/o. H.No. 3-2-76, Uppu Gadda, Vemuiawada, Karminagar - 505302.Housewife, R/o. H.No. 3-2-76, Uppu Gadda, Vemuiawada, Karminagar - 505302.2. Rabbari Ramlal, S/o. Rabbari Hemaji, Aged about 47 yearc, Occ: Business,R/o. H.No. 8-2-76, Subramanyam Nagar, Vemulawada, Karimnagar - 505302.R/o. H.No. 8-2-76, Subramanyam Nagar, Vemulawada, Karimnagar - 505302.

...PETITIONERSAND1. The State of Telangana, Rep. by its Principal Secretary, Revenue (Excise)Department, Secretariat, Hyderabad.1. The State of Telangana, Rep. by its Principal Secretary, Revenue (Excise)Department, Secretariat, Hyderabad.

2. The Deputy Commissioner of Prohibition and Excise, Karimnagar Division,Karinmagar.Karinmagar.

3. The Station House Officer, Vemulawada Prohibition and Excise Station,Vemulawada' Karminagar' ...RES'.NDENTSVemulawada' Karminagar' ...RES'.NDENTS

Petition under Article 226 of lhe Constitution of lndia praying that in thecircumstances stated in the affidavit filed therewith, the High Court may be pleasedto issue an appropriate Writ, Order or Direction, more particularly one in the natureof Writ of [\,4andamus declaring the in action of Respondent No.2 in not directing theRespondent No.3 to release the Activa 4G WEAS & KS & DRUIVC vehicle bearingRegistration Number TS 23 8946 and Hero Honda splendor vehicle bearingRegistration Number AP'1 5 AV 9830 seized in COR Dated 19.10.2020 with CORNo.66 of 2020, inspite of petitioners readiness to furnish the third [party ]surety, asbeing illegal, and arbitrary consequently direct the Respondent No.2 to order forrelease of the vehicles to the Petitioners.lA NO: 1 OF 2020

Petition under Section 151 CPC [praying ]that in the circumstances stated [in]the affidavit filed in support of the [petition, ]the High Court may be [pleased ]to directthe Respondent No.2 to release the Activa 4G WEAS & KS & DRUIVC vehiclebearing Registration Number TS 23 8946 and Hero Honda splendor vehicle bearingRegistration Number AP 15 AV 9830 seized in COR Dated 19.10.2020 [with ]CORNo.66 of 2020 pending disposal of the main Writ Petition.

Counsel for the Petitioner: SRI RAVINDER REDDY MUPPU

Counsel for the Respondents: AGP FOR PROHIBITION AND EXCISE

The Court made the following: ORDER

HONOURABLE SRI JUSTICE P.NAVEEN RAO

WRIT PETITION NO. 24289 of 2O2OORDER:

IHeard learned counsel for the petitioners and lJernedAssistant Government Pleader for prohibition and Excise. [I \]

2. This writ petition is filed praying to direct respondents torelease Activa 4G WEAS & KS & DRUMC bearing registrationNo.TS 23 8946 belonging to the 1sr petitioner r,r,hich r,r,asmanufactured in the year 2017 and Hero Honda Splender bearingregistration No.AP 15 AV 9830 belonging to the 2ncr petirionerw-hich was manufactured in the year 2O 1 I were seized on theallegation of illegai transportation oI .Jaggery and Alum.

3. According to State Government, producing illicit liquor andits distribution is prohibited. According to the State, consumptionof liquor is per se harmful to health of a person and consumptionof spurious liquor is more harmful and can result in instantaneousdeath. The officials in their endeavour to thwart any attempt tomanufacture illicit liquor, seize the commodities and vehicleinvolved in illegal transportation. After seizure of the vehicle,confiscation proceedings are taken up and if the allegations areproved, the vehicle can be confiscated.

4. The Telangana Prohibition Act, 1995 and The TelanganaExcise Act, 1968 regulate all aspects of liquor in the State ofTelangana, including manufacture, distribution and consumption.5. By placing reliance on several decisions of this Court,learned counsel for petitioners prayed to allow the writ petitiondirecting the respondents to release the vehicles subject on deposit of an amount of {.10,000/- and Rs.5000/_ respectively andcompliance of further directions issued by this court in severar writpet ition s.

6. The statement of learned counsel for petitioners that similarmatters are disposed of with conditions, including furnishing fixeddeposit/bank guarantee as the case may be, is not disputed by thelearned Assistant Government pleader. However, he . onlyemphasises that higher amount of fixed deposits should bedirected to be furnished by the petitioners before seeking to releasethe vehicles. He further submits that the competent authority todeal with confiscation proceedings is Deputy Commissioner and healone is competent to release the vehicles pending completion ofconfiscation proceedings. He therefore submits that direction begiven to the petitioners to file applications before the DeputyCommissioner praying to grant interim custody of the vehicle.

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7. iHaving regard .to the consistent view taken by this Court,.tthis Court on similar issue, passed detailed o.d"r" inW.P. Nos.14801 and 14811 ol 2O2O dated 8.g.2O2O. Following thesame, this writ petition is disposed of with following directions:

(i) Petitioners are granted liberty to lile applications to theDeputy Commissioner (2,d respondent) to grant interim custody ofthe vehicles.

(ii) If such applications are filed, pending hnal orders tobe passed in conliscation proceedings, 2"d respondent is directedto release Activa 4G WEAS & KS & DRUMC bearing registrationNo.TS 23 8946 belonging to the 1st petitioner and Hero HondaSplender bearing registration No.Ap 15 AV 9g3O belonging ro the 2nd petitioner, on petitioners furnishing fixed deposit receipts asproof of opening fixed deposit accounts for an amount of<.10,000/- (Rupees Ten Thousand only) and Rs.50OO/- (Rupeesproof of opening fixed deposit accounts for an amount of<.10,000/- (Rupees Ten Thousand only) and Rs.50OO/- (RupeesFive Thousand only) respectively.

(iii) Petitioners are further directed not to encash the lixeddeposit or creatc lien or mortgagc on the lixcd deposit till theconclusion of confiscation proceedings.

(iv) The petitioners shall produce original R.C. Book of thevehicles at the time of seeking release oI the vehicles.

(v) Petitioners shall furnish undertaking that they will nottransfer or alienate the sr-rbject vehicles to third party in anymanner and will maintain the vehicles in the same goodroadworthy condition without changing its major parts andfeatures.

(vi) Petitioners should produce the vehicles as and rvhendirected by the concerned Court or competent authority.

No costs. Miscellancous petitions, if anv pending, stand closed.

SD/.N.CHANDRA SEKHRAOASSISTANRSTRAR//TRUE COPY//SECTION OFFICER

To,1I!:-:lilglp?j. >ecretanal, Hyderabad.9_.1:lqrv, [Revenue ][(Excise) ][Department, ][State ][of ][Telansana,]2The Deputy commissioner of prohibition and Excise, Karimnagar Division,Karinmagar.Excise, Karimnagar Division,Karinmagar.r)The station House officer, vemulawada prohibition and Excise station,Vemulawada. Karminaoar.4One CC to Sri Ravindei Reddy Muppu, Advocate Vemulawada. Karminaoar.4One CC to Sri Ravindei Reddy Muppu, Advocate 6Two ccs to GP for Prohibitiori and Excise, Hign court foi tOpUClthe state of relanganaat Hyderabad. [OUT]at Hyderabad. [OUT]6Two CD Copies.

lto:S. ryitl'^^q [Copy ][of ][the ][Order dated ][08.09.2020 ][in ][W.p.No. ]14801 and14811 of 2020.IVP

HIGH COURT

DATED:31 11212020

ORDER

WP.No.24289 of 2020

THEs 14ko05 IAN 2021*{i--i€rD##-r*$-{

DISPOSING OF THE WRIT PETITIONWITHOUT COSTS

HONOURABLE SRI JUSTICE P.NAVEEN RAOWRIT PETITION NOs. 148()1 & 14I of 2O2O2O2O

I of 2O2O2O2O

COMMON ORDER:

Heard learned counsel for petitioners and learned GovernmentPleader for Prohibition and Excise.Pleader for Prohibition and Excise.

2. These two writ petitions are filed praying to directrespondents to release their motor vehicles, i.e., Auto Rikshaw bearingregistration No. TS 26 T 6451 in W P No. 14801 of 2O2O and GoodsCarriage vehicle bearing registration no. AP 03 TE 2277 in Writ PetitionNo. 14811 of 2O2O. These two vehicles were seized on the allegation thatthe said vehicles were carrying large quantity of jaggery and alumintended to make illicit liquor.

3. According to State Government, producing illicit liquor byusing jaggery and alum and other substances and its distribution isprohibited. According to the State consumption of liquor is per seharmful to health of a person and consumption of spurious liquor ismore harmful and can result in instantaneous death. Therefore,whenever the Police and Excise Officials come across transportation ofjaggery and alum, more particularly in large quantities, they suspect thatsuch transportation is intended to manufacture illicit liquor. In theirendeavour to thwart any attempt to manufacture illicit liquor, they seizethe commodities and vehicles involved in transportation. After seizure ofthe vehicles, confiscation proceedings are taken up and if the allegationsare proved, the vehicle can be confiscated.

4. The Telangana Prohibition Act, 1995 and The TelanganaExcise Act, 1968 regulate all aspects of liquor in the State of Telangana,including manufacture, distribution and consumption.

5. Section 7-Ar of the Act, 1995 prohibits selling, buying andconsumption of liquor otherwise than in accordance with the provisionsof the Act, 1995 and Act, 1968. Section 2 of the Act, 1995 definesvarious terms used in the Act. According to sub section I ,Afidck'means country liquor including arrack brewed, coloured, flavoured orspiced. According to Sub Section Z "Liquor,,inciudes (a) spirits of wine,denatured spirits methylated spirits and rectihed spirits Beer, toddy andevery liquid consisting of or containing alcohol and (b) any otherintoxicating substance which the Government may by, notification,declared to be liquor for the purpose of this Act. However, the word"Alcohot'is not defined in the Act, 1995 and in the Act, 196g.

6. Section 2 of the Act, 196g defines various words and termsused in the Act. According to clause- 1 , [.Arracl( ]includes all liquorproduced or manufactured in India and supplied by the Government,other than Foreign Liquor and Indian Made Foreign Liquor. According toclause-19 "lntoxlcant' means any liquor as defined in clause (21). InClause 2l " ltquo/ is delined. It includes,-(a) Spirits of wine, denaturedspirits, methylated spirits, rectified spirits, wine, beer, toddy and everyliquid consisting of or containing alcohol; and (b) Any other intoxicatingsubstance which the Government may by notification, declare to beliquor for the purposes of this Act. This definition is similar to thedefinition provided in Act, 1995.

7 . The Act, 1968 is comprehensive legislation on the subjectand deals with all aspects concerning Alcohol. chapter IV deals with'Manufacture, possession and sale,. According to Section 13, no person'Manufacture, possession and sale,. According to Section 13, no personshall (a) manufacture or collect an intoxicant; (b) cultivate hemp plant;(c) tap an excise tree or draw toddy from any such tree; (d) construct or(c) tap an excise tree or draw toddy from any such tree; (d) construct orwork distillery or brewery; (e) bottle liquor for sale; or (f) use, keep orhave in his possession, any materials, stills, utensils, implements orI Prohibltion of production ctc., of arrack. - The production, manufacture, storage, possessaon, colection, purchase,I Prohibltion of production ctc., of arrack. - The production, manufacture, storage, possessaon, colection, purchase,sale and kansporl o, arrack is hereby prohrbrled.

apparatus, whatsoever for the [purpose of ][manufacturing any ][intoxicant,]other than toddy, except under the authority and [subject ]to [the ][terms]and conditions of a licence. It is seen that [Sub-Section (f) ][has ][wider]import and encompasses various aspects of manufacture [and]possession of liquor.

8. Chapter VI of the Act, 1968 deals with 'Offences [and]Penalties'. For the purpose of this case, Sections [41, ][452, ][46 ][and ][46-A3]are relevant. Section 41 provides for imprisonment [for contravention of]any of the [provisions ]of Act, 1968, [or ][of ][rule, notification ][or order ][made,]issued or passed there under and not otherwise [provided ][for ][in ][the ][Act,]1968.

9. Section 45 provides that wheneveran offence has beencommitted, which is [punishable ]under [Act, ][1968]the things mentionedin Section 45 are iiable for confiscation. Section46 mandates theauthority competent to seize the items [mentioned ][in ][Section ][45 ][to]produce before the Deputy Commissioner of Prohibition and Excise. [On]production of the seized property, the Deputy Commissioner [is ][required]to conduct [proceedings ]for [confiscation ][and ][if ][he ][is ][satisfied ][that ][an]offence is committed under the [Act, ][he ][maSz ][order ][for ][confiscation of ][the]property seized. The Deputy Commissioner is also authorised [to ][conduct]public auction or dispose of the property so confiscated Against [the]order of confiscation, under Section [46-C4 ][remedy of appeal is provided.]

2 45.Whunere|. an otfence has been committed. whrch is punishable under this Act, the following things shall be liable toconfiscation, namety:-(1) any intoxicant. [materials, ][still, ][ulensil, implements, ][or ][apparatus ][in ][respect ][of,or by ][means]of,which, such offence has been committedt(2) [any intoxicant ][lalr.fully ][imported, transported, ][or ][manufactured. ][had ][in]possession, sotd or brought along with, or in addition to, any intoxicant liable to conflscation under [clause (1); and(3) any]receptacte, [package ]or covering in which anything [liable ][to ][confiscation under clause (1) ][or ][clause (2). is found, and the]other contents, if any, of such receptacle. [package ][or ][covering and any ][animal, ][vehicle, vessel, raft ][or ][other conveyance]used for carrying the same.45.Whunere|. an otfence has been committed. whrch is punishable under this Act, the following things shall be liable toconfiscation, namety:-(1) any intoxicant. [materials, ][still, ][ulensil, implements, ][or ][apparatus ][in ][respect ][of,or by ][means]of,which, such offence has been committedt(2) [any intoxicant ][lalr.fully ][imported, transported, ][or ][manufactured. ][had ][in]possession, sotd or brought along with, or in addition to, any intoxicant liable to conflscation under [clause (1); and(3) any]receptacte, [package ]or covering in which anything [liable ][to ][confiscation under clause (1) ][or ][clause (2). is found, and the]other contents, if any, of such receptacle. [package ][or ][covering and any ][animal, ][vehicle, vessel, raft ][or ][other conveyance]used for carrying the same.

3 46A.No order of confiscation of any property shall be made under section 46 unless the person from whom the saidproperty is seized,-(a) is given a notice in writing informing him of the [grounds on ][\,vhich ][it is proposed to confiscate such]properti: and (b) is given an opportunity of making a representation in writing wthin such [reasonable ][time as may ][be]specified in the notlceproperty is seized,-(a) is given a notice in writing informing him of the [grounds on ][\,vhich ][it is proposed to confiscate such]properti: and (b) is given an opportunity of making a representation in writing wthin such [reasonable ][time as may ][be]specified in the notlce o 46C.Any p"r"on rggrieved by an order passed by #lDeputy Commissioner of Prohibition and Excise]under section 46,may within sixty days from the date of [passing such order, appeal ][to ][#[Commissioner ][of ][Prohibition and Excise], who may]after giving reasonable opportunity [to ]the [appellant pass such order as he deems fil]may within sixty days from the date of [passing such order, appeal ][to ][#[Commissioner ][of ][Prohibition and Excise], who may]after giving reasonable opportunity [to ]the [appellant pass such order as he deems fil]

10. Thus, from the scheme of the Act noted above, if the officerof the Excise Department or police Department suspects that a person isfound to be in possession of any material 0r is transporting any materiarwhich is meant for use to manufacture illicit liquor, he can seize thevehicle and / or goods and thereafter confiscation proceedings would beconducted. However, the Act has not provided mechanism to ventilatethe grievances against the alleged seizure of vehicle or goods and to seekrelease of the vehicle or goods pending confiscation proceedings.

11. The stark reality is no sufficient number of warehouses/stock yards are availabre, where vehicles can be parked and protectedfrom the extreme weather conditions as well as theft of vehicles/parts ofthe vehicles' It is also a stark rearity that there is tardy progress in theconfiscation proceedings and till the confiscation proceedings areconcluded, the seized vehicles/goods are exposed to extreme weatherconditions and greatry diminish their usability. Therefore, whenever avehicle is seized, the primary concern of the owner of the vehicle is aboutits safety and roadworthy condition when the vehicle is released.

12. Since there is no other redressal mechanism, the owners ofthe motor vehicles institute writ petitions praying to direct concernedauthority to rerease the vehicles pending confiscation proceedings. Thevolume of the writ petitions in this branch of law would show themagnitude of the problem. Having regard to the practicalities noticedabove, this court invariable grants directions to rerease the vehicles/goods imposing certain conditions, including furnishing fixed deposit orfurnishing bank guarantee for the specified amount. Fixing the amountdepends on the type of vehicle, year of manufacture etc and alsorestraining the owner of the vehicre from creating third party interest orselling the vehicle till conclusion of confiscation proceedings.

13. By placing reliance [on ][several decisions ][of ][this ][Court,]learned counsel for [petitioners ][prayed ][to ][a1low ][the ][writ ][petitions directing]the respondents to [release ][the ][vehicles ][subject ][to ][compliance ][of]directions issued by this [court ][in ][several ][writ petitions. ][In ][w ][P. ][14801 ][of]2020 counsel for [petitioner ][offered to deposit an ][amount ][of ][{'75,000/- ][for]release of Auto Rikshaw [and ][in ][W.P. 14811 of 2020 counsel ][lor petitioner]offered to deposit an amount [of ][{.1,50,000/- ][for ][release ][of ][goods]transport vehicle and to [comply ][with ][other ][conditions ][as ][imposed in]similar matters.

14. The statement [of learned counsel ][for ][petitioners ][that ][similar]matters are disposed of [with ][conditions, ][including furnishing ][fixed]deposit/bank [guarantee ][as ][the ][case ][may ][be, ][is ][not ][disputed ][by ][the]learned Government [Pleader. ][However, ][he ][only ][emphasises ][that ][higher]amount.'of fixed [deposit ][should ][be ][directed ][to ][be ][furnished ][by ][the]petitioners before seeking to [release ][the vehicles']

15. Having regard to the [consistent view ][taken ][by ][this ][Court']petitioners are also entitled [to ][relief of directing ][respondents ][to ][release]their vehicles. The [writ ][Petitions ][are ][disposed ][of, ][with ][the ][following]directions:

(i) Pending final orders [to be ][passed ][in ][conliscation]proceedings, respondents [are ][directed ][to ][release ][the Auto ][Rickshaw]bearing registration [No.TS ][26 ][T ][6451 ][in ][W'P'No' ][14801 ][ol ][2O2O ][on]petitioner furnishing fixed [deposit receipt ][as ][proof ][of ][opening ][fixed]account [for an amount ][of ][t ][75,000/- ][and ][Goods ][Carriage-vehicle]deposit bearing registration [no. ][AP ][03 TE ][2277 ][in ][W'P'No 14811 ][of ][2O2O ][on]petitioner furnishing fixed [deposit ][receipt- ][as ][proof ][of ][opening ][fixed]deposit account for an [amount ][of ][{ ][2,50,000/-']

E

(ii) Petitioners are further directed not to encash the fixed depositsor create lien or mortgage on the fixed deposits till the conclusion ofconliscation proceedings.or create lien or mortgage on the fixed deposits till the conclusion ofconliscation proceedings.

(iii) The petitioners shall produce originar R.c. Books of thevehicles at the time of seeking release of the vehicles.

(iv) Petitioners shall furnish undertakings that they will nottransfer or alienate the respective vehicles to third party in any mannerand will maintain the vehicles in the same good roadworthv conditionwithout changing its major parts and features.

(v) They should produce the vehicles as and when directed by theconcerned Court or competent authority.

17. The flood of litigation on this subject is solely because noredressal mechanism is provided against and release of vehicles andgoods' The flow of litigation can be reduced, if not avoided, if an intra-departmental mechanism is created to redress the grievance of the ownerof the vehicles/goods.

18. Having regard to the volume of litigation that is instituted inthis Court adding to the huge pendency of cases before this Court,before parting with these cases, this Court deems it necessary to makefollowing directions:

19. The Principal Secretary, prohibition and Excise Departmentand Commissioner for prohibition and Excise:

(a) shall examine the desirability of creating intra-departmentalredressal .mechanism where owner of the seized vehicle or goods canprefer an appeal against the seizure pending confiscation proceedingsand desirabilit5z to release the vehicles/goods with appropriate conditionsprefer an appeal against the seizure pending confiscation proceedingsand desirabilit5z to release the vehicles/goods with appropriate conditionsas deemed fit and proper; (b) shall consider to [prescribe ][time line for ][expeditious conclusion]of the confiscation Proceedings;

(c) sha11 lormulate [guidelines ][for ][disposal ][of ][the ][appeals ][and]confiscation [proceedings ][by ][using ][Information Technologr ][platform ][and]by creating On-line [portal for ][redressal ][of ][such ][grievances ][including ][the]possibility of considering [these ][matters through ][Video ][Conference mode']

20. It is [appropriate ][to ][note ][that ][any ][endeavour ][made ][or]remedial steps [taken ][in ][this ][regard ][will ][avert flooding of ][cases before ][this]Court and [would ][ensure expeditious, cost ][effective ][redress ][to ][aggrieved]person.

Miscellaneous [petitions, ][if ][ar-ry ][pending, stand ][closed']

DATE: 08.09.2020TVK/kkm

P.NAVEEN RAO,J