S.Siva Sankar vs. The State Of Andhra Pradesh

HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI WRIT PETITION No.20676 of 2020 ORDER:

This Writ Petition is filed by the petitioner seeking to declare the proceedings dated 14.10.2020 issued by the 2nd respondent-Superintendent of Police directing the petitioner to deposit Fixed Deposit receipt for a sum of Rs.4,06,000/ as a condition precedent for giving interim custody of vehicle bearing No.KA 53 AA 0365 which is detained in connection with Crime No.137 of 2020 on the file of Ramasamudram Police Station, Chittoor District, pending confiscation proceedings, as illegal and arbitrary.

2. The case of the petitioner is that he is the owner of Car bearing registration No.KA 53 AA 0365 and that the said vehicle was implicated in Crime No. 137 of 2020 on the file of Ramasamudram Police Station, Chittoor District for the offence under Section 34(A) of the Andhra Pradesh Excise Act, 1968. The 2nd respondent herein has initiated confiscation proceedings and issued a show cause notice dated NIL seeking explanation of the petitioner and vide impugned proceedings dated 14.10.2020 directed the petitioner to furnish Fixed Deposit receipt for Rs.4,06,000/ as a condition precedent for giving interim custody of the subject vehicle and also further directed to give an undertaking to the effect that he shall not sell, alienate or

alter the vehicle in any manner and keep it in the same condition as it is now and to produce the same at the place and time, as directed by the authorities till finalization of confiscation proceedings. Challenging the same, the present writ petition is filed.

2A. Learned counsel for the petitioner contends that if the vehicle is kept idle, it will be damaged and requests the Court to set aside the condition to deposit the FDR worth Rs.4,06,000/- and to direct the second respondent to release the vehicle as an interim measure. Learned counsel also contends that insisting the petitioner to deposit the said amount is an arbitrary exercise of power which virtually amounts to denial of relief i.e., return of the vehicle for interim custody during the pendency of the criminal proceedings.

3. Learned Government Pleader for Prohibition and Excise appearing for the respondents did not file any counter affidavit, but advanced arguments.

4. Learned Government Pleader for Prohibition and Excise contends that the Deputy Superintendent of Police, Prohibition and Excise is the competent officer to issue a direction, that the respondents have got power to confiscate the property to the State, that there is no power to grant interim custody of the vehicle and if the interim custody of the vehicle is given to the petitioner without insisting for the

security for production of the vehicle for ordering confiscation to the State, there is no possibility of producing the vehicle in future and realizing the amount to the State.

$5.$ There is no dispute so far as registration of crime for the offence punishable under Section 34(A) of the Andhra Pradesh Excise Act, 1968 in Crime No.137 of 2020 of Ramasamudram Police Station, Chittoor district. On a bare look at the provisions of the Prohibition and Excise Act, shows that the Deputy Commissioner is competent to order confiscation of the property seized under the Act after conclusion of criminal proceedings.

6. In similar fact situation, the Apex Court in State (NCT of Delhi) v. Narender¹, held as follows.

".......On production of the seized property, the Deputy Commissioner, if satisfied that the offence under the Act has been committed, may order confiscation of such property. Therefore, under the scheme of the Act any vehicle used for carrying the intoxicant is liable to be confiscated and on seizure of the vehicle transporting the intoxicant, the same is required to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation.

23..........The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where

^&lt;sup>1</sup> Criminal Appeal No.25 of 2014 dated 06.01.2014

the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under CrPC has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.

24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate."

25. Dealing with the similar issue, this Court in W.P.No.14783 of 2020, dated 08.09.2020, held as follows.

"No doubt, it appears to be an onerous condition, but when such power is conferred on the

third respondent to order confiscation of the vehicle after termination of the criminal proceedings, if for any reason, the vehicle is not produced, the ultimate loser is the State and this power conferred on the third respondent will remain only on the statute book which cannot be enforced effectively by the third respondent conferment of such power by provisions will become redundant or otiose. In those circumstances, the third respondent may insist security for production of the vehicle after termination of the criminal proceedings against the accused, if the Trial Court found them guilty for the offences, so as to enable the third respondent to order confiscation of the property to the State. Therefore, insisting security for grant of interim custody of the vehicle or release of the vehicle as interim custody during pendency of the investigation or calendar case before the competent court is not an illegality. On the other hand, it is only to protect the interest of the State. Hence, I find that insistence of security from the petitioner is not an illegality.

Condition No.6 imposed to deposit FDR worth Rs.13,00,000/- appears to be unjust and unreasonable, since it is difficult to furnish the security amid Covid-19 by a small transport operator. Therefore, to meet the ends of justice, Condition No.6 imposed by the third respondent is modified as follows:

"The petitioner shall furnish immovable property security by executing a bond in favour of the third respondent/Superintendent of Police, Kurnool or for the value of the vehicle, as estimated by the Motor Vehicle Inspector, Nandyal."

The third respondent is directed to get the vehicle valued by Motor Vehicle Inspector, Nandyal in the presence of the petitioner after serving a notice to

the petitioner and on fixing value of the vehicle by the Motor Vehicle Inspector, the petitioner is directed to furnish immovable property security by executing a bond in favour of the third respondent, strictly adhering to the Stamp and Registration laws, as per the value fixed by the Motor Vehicle Inspector and on production of such immovable property as security, the third respondent/Superintendent of Police, Kurnool is directed to release vehicle No.AP 21 TZ 8829 as interim custody.

With the above direction, writ petition is disposed of. No costs."

8. Coming to the present case, the petitioner is willing to furnish immovable property security by executing a bond by adhering to the Stamps and Registration Laws, as per the value fixed by the Motor Vehicle Inspector.

9. In view of the same and following the above referred judgments, the second respondent is directed to get the vehicle valued by the concerned Motor Vehicle Inspector in the presence of the petitioner after serving notice on her and the petitioner is directed to furnish the immovable property security by executing a bond in favour of the second respondent strictly adhering to the Stamps and Registration Laws, as per the value fixed by the Motor Vehicle Inspector and on production of such immovable property as security, respondents 2 and 3 are directed to release the vehicle bearing registration No. KA 53 AA 0365 as interim custody to the petitioner in accordance with law.

10. With the above observation, the Writ Petition is disposed of. There shall be no order as to costs.

As a sequel thereto, the miscellaneous applications, if any, pending in this Writ Petition shall stand closed.

_________________________________ KONGARA VIJAYA LAKSHMI, J.

Date: 06-11-2020 Gvl

HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

WRIT PETITION No.20676 of 2020

Date : 06.11.2020

KVLJ WP No.20676 of 2020