CRLRC/2198/2009 of Mudem Rama Linga Reddy Vs The State of Andhra Pradesh on 31 December 2009

ORDER:

Heard.

The learned counsel for the petitioner, relying on the judgmentsin cases between P.SWARUPA AND OTHERS v. STATE OFANDHRA PRADESH[[1]],JITENDRA PALNITKER v. STATE OFANDHRA PRADESH[[2]]and SUNDERBHAI AMBALAL DESAI v.

STATE OF GUJARAT[[3]],submitted that the Magistrate is havingpower to release the vehicle under Section 451 Cr.P.C. towardsinterim custody.

In the first cited judgment, this Court held as follows:

“(1) Where the crime is registered under the provisions ofthe Andhra Pradesh Prohibition Act, the Magistrate hasgot power to consider the petition filed under the provisions of Criminal Procedure Code viz., Section 451Cr.P.C. for release of the vehicle involved in the offence.

(2) Where the crime is registered only under theprovisions of the Andhra Pradesh Excise Act, 1968, theDeputy Commissioner of Excise alone is competent topass orders of confiscation in respect of seized articlesor vehicles and the Court will have no jurisdiction toexercise under Section 451 Cr.P.C. to order release ofthe vehicle seized.

(3) Where the crime is registered both under theprovisions of the Andhra Pradesh Excise Act, 1968 aswell as the provisions of the Andhra Pradesh ProhibitionAct, 1995, a petition filed under provisions of Cr.P.C.,viz., Section 451 Cr.P.C., for release of vehicle seizedand it is contended that the offence exclusively fallsunder the A.P. Excise Act, the concerned Court has tofirst decide whether the offence committed is punishableunder the A.P. Excise Act or the A.P. Prohibition Act. Incase, the Court comes to the conclusion that the offencecommitted is punishable under the A.P. Excise Act thenit cannot exercise power under Section 451 Cr.P.C. fororder release of the vehicle. However, in case the Courtcomes to conclusion that the offence committed ispunishable under the A.P. Prohibition Act, then the Courthas got power under Section 451 Cr.P.C. to orderrelease of the vehicle.

(4) Where the crime is registered under the provisions ofthe A.P. Excise Act, 1968 and the provisions of the A.P.Prohibition Act, 1995, and when there is no plea that theoffence exclusively falls under the A.P. Excise Act, thenthe Court has got power under Section 451 Cr.P.C. toorder release of the vehicle inasmuch as the A.P.Prohibition Act has got overriding effect over the A.P.Excise Act.

19. In this case, it is not the case of the prosecution thatcrimes were registered exclusively under the A.P. ExciseAct. On the other hand, the case of the petitioners andthe record show that crimes were registered under theA.P. Prohibition Act and the A.P. Excise Act. In view of our above discussion, we think it just and proper to directthe respondents to release the vehicles on the conditionof petitioners furnishing bank guarantee for the value ofthe vehicles assessed by the concerned Road TransportAuthority. The petitioners shall not alienate the vehiclesand shall produce them whenever they are directed to doso.

The Criminal Miscellaneous Petitions are disposed ofaccordingly.”

In the second cited judgment, this Court considered the scopeof Section 46E of the Andhra Pradesh Excise Act, 1968 and observedas follows:

“13. Taking into consideration the above provisions oflaw, I have no hesitation in holding that when theperson is charged under the Andhra Pradesh ProhibitionAct, 1995, the Magistrate has all powers under the Act todeal with the accused and the articles used in thecommission of the offence under this Act.

14. The Andhra Pradesh Prohibition Act, 1995 is acomplete code. In spite of this fact, I am not able toappreciate as to why the Investigating Agencies chargedthe accused even under the Andhra Pradesh Excise Act.If the accused is charged under the Andhra PradeshExcise Act, the prosecution has to show that the accusedhas evaded the Excise Duty in contravention to the lawnarrated in Andhra Pradesh Excise Act. Unless it isshown that he has violated the provisions of AndhraPradesh Excise Act, the accused cannot be charged forany offence under the said Act.

15. Section 31 of the Andhra Pradesh Prohibition Act,1995 reads as under:

“31. OVERRIDING EFFECT: Save as otherwiseprovided, the provisions of this Act shall haveeffect, notwithstanding anything inconsistenttherewith contained in the provisions of the AndhraPradesh Excise Act 1968 (Act 17 of 1968) and therules made thereunder for the time being in force.”

This section lays down that any inconsistent provision isfound in the Andhra Pradesh Excise Act, contradictingthe provisions of the Andhra Pradesh Prohibition Act,1995, the provisions contained in Andhra PradeshProhibition Act, 1995 will prevail. For that reason also theExcise Officer or the Collector will have jurisdiction topass an order of confiscation if the accused is unknown,and if the charge sheet is filed against the accused, onlythe Magistrate can pass the order of confiscation ofarticles, vehicles etc., involved in the Andhra PradeshProhibition Act, 1995.”

16. Considering the above provisions of law, I hold thatthe Magistrate has jurisdiction to pass an order of releaseof the vehicle in favour of the petitioner by way of interimcustody.”

In view of Section 31 of the Andhra Pradesh Prohibition Act,1995 and in the light of the above-referred judgments, it is to be heldthat the Magistrate is empowered to pass orders of release of thevehicle or goods by way of interim custody. Moreover, if the goods arekept unused, they will be damaged.

In the above circumstances, the impugned order is set asideand the matter is remitted to the Court of the Judicial Magistrate of FirstClass, Huzurnagar, with a direction to pass appropriate orders underSection 451 Cr.P.C. The learned Magistrate may also examinewhether the goods are perishable or not and if the goods areperishable he will decide what has to be done. He may also considerwhether a part of the goods can be kept as case property for thepurpose of identification at the time of trial. Anyhow, it is for thepetitioner/accused to give an undertaking that he will not object formaking of the panchanama and he will not dispute the quantity ofjaggery seized. After verifying all those things and after takingappropriate no objection memo from the petitioner/accused, thelearned Magistrate may pass appropriate orders in accordance with law.

The Criminal Revision Case is, accordingly, allowed.

Date: 31-12-2009.Dsh

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B.CHANDRA KUMAR, J

[1]1996(1) ALT Crl. 130[2]1995(3) ALD 80[3](2002) 10 SCC 283