CRLRC/2197/2009 of K.Mrutyunjaya Rao, Vs The State of A.P., through Proh and Excise Sation, Wyra, 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 of the Andhra Pradesh Prohibition Act, the Magistrate has got power toconsider the petition filed under the provisions of Criminal ProcedureCode viz., Section 451 Cr.P.C. for release of the vehicle involved inthe offence.

(2) Where the crime is registered only under the provisions ofthe Andhra Pradesh Excise Act, 1968, the Deputy Commissioner ofExcise alone is competent to pass orders of confiscation in respect ofseized articles or vehicles and the Court will have no jurisdiction toexercise under Section 451 Cr.P.C. to order release of the vehicleseized.

(3) Where the crime is registered both under the provisions ofthe Andhra Pradesh Excise Act, 1968 as well as the provisions of theAndhra Pradesh Prohibition Act, 1995, a petition filed under provisionsof Cr.P.C., viz., Section 451 Cr.P.C., for release of vehicle seized and itis contended that the offence exclusively falls under the A.P. ExciseAct, the concerned Court has to first decide whether the offencecommitted is punishable under the A.P. Excise Act or the A.P.Prohibition Act. In case, the Court comes to the conclusion that theoffence committed is punishable under the A.P. Excise Act then itcannot exercise power under Section 451 Cr.P.C. for order release ofthe vehicle. However, in case the Court comes to conclusion that theoffence committed is punishable under the A.P. Prohibition Act, thenthe Court has got power under Section 451 Cr.P.C. to order release ofthe vehicle.

(4) Where the crime is registered under the provisions of theA.P. Excise Act, 1968 and the provisions of the A.P. Prohibition Act,1995, and when there is no plea that the offence exclusively fallsunder the A.P. Excise Act, then the Court has got power under Section451 Cr.P.C. to order 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 that crimeswere registered exclusively under the A.P. Excise Act. On the otherhand, the case of the petitioners and the record show that crimes wereregistered under the A.P. Prohibition Act and the A.P. Excise Act. Inview of our above discussion, we think it just and proper to direct therespondents to release the vehicles on the condition of petitionersfurnishing bank guarantee for the value of the vehicles assessed bythe concerned Road Transport Authority. The petitioners shall notalienate the vehicles and shall produce them whenever they aredirected to do so.

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 of law, Ihave no hesitation in holding that when the person is charged underthe Andhra Pradesh Prohibition Act, 1995, the Magistrate has allpowers under the Act to deal with the accused and the articles used inthe commission of the offence under this Act.

14. The Andhra Pradesh Prohibition Act, 1995 is a completecode. In spite of this fact, I am not able to appreciate as to why theInvestigating Agencies charged the accused even under the AndhraPradesh Excise Act. If the accused is charged under the AndhraPradesh Excise Act, the prosecution has to show that the accused hasevaded the Excise Duty in contravention to the law narrated in AndhraPradesh Excise Act. Unless it is shown that he has violated theprovisions of Andhra Pradesh Excise Act, the accused cannot becharged for any offence under the said Act.

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

“31. OVERRIDING EFFECT: Save as otherwise provided, theprovisions of this Act shall have effect, notwithstanding anythinginconsistent therewith contained in the provisions of the AndhraPradesh Excise Act 1968 (Act 17 of 1968) and the rules madethereunder for the time being in force.”

This section lays down that any inconsistent provision is foundin the Andhra Pradesh Excise Act, contradicting the provisions of theAndhra Pradesh Prohibition Act, 1995, the provisions contained inAndhra Pradesh Prohibition Act, 1995 will prevail. For that reason alsothe Excise Officer or the Collector will have jurisdiction to pass anorder of confiscation if the accused is unknown, and if the charge sheetis filed against the accused, only the Magistrate can pass the order ofconfiscation of articles, vehicles etc., involved in the Andhra PradeshProhibition Act, 1995.”

16. Considering the above provisions of law, I hold that theMagistrate has jurisdiction to pass an order of release of the vehicle infavour of the petitioner by way of interim custody.”

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 by way of interim custody. Moreover, if the vehicles areexposed to rain and sun, they will be damaged.

In the circumstances, the impugned order is set aside and theHero Honda Motor cycle bearing Registration No. AP20-L-1033 shallbe released in favour of the petitioner on condition of his executing apersonal bond for a sum of Rs.30,000/- with two sureties for a like sum each to the satisfaction of the Judicial Magistrate of First Class forProhibition and Excise Cases at Khammam, and on further conditionof depositing Registration Certificate of the vehicle with the lowerCourt. The petitioner shall not change the colour or shape of thevehicle and not alienate the vehicle pending disposal of the case. Heshall produce the vehicle as and when required.

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. 1301996(1) ALT Crl. 130

[2]1995(3) ALD 801995(3) ALD 80[3](2002) 10 SCC 283(2002) 10 SCC 283