HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.28269 of 2010
Date: June 11, 2014
Between:
B. Mallikarjuna … Petitioner And
1. The Deputy Commissioner, Prohibition & Excise, Ananthapur & another.
… Respondents * * * HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No.28269 of 2010
O R D E R:
With the consent of the counsel for the petitioner as well as for the respondents, this writ petition is being disposed of at the interlocutory stage.
2. This writ petition was filed challenging the proceedings of the first respondent in Rc.No.133/2009/B2 dated 24.02.2010.
3. It appears that on 20.04.2009 at about 11.30 p.m. the Prohibition & Excise Inspector, Penukonda, along with staff while conducting route watch at Guttur cross on NH-7 seized one auto bearing No.AP02 V 6753 while transporting (667) nips of B.P. whisky (duty paid). On seeing the Excise staff, the driver of the vehicle ran away and escaped, but he was identified as B. Mallikarjuna, son of Katamaiah, resident of Munimadugu Village, Penukonda Mandal. A case was registered in Crime No.39 of 2009-10 of Penukonda Prohibition & Excise Station under Section 34 (a) of A.P. Excise Act, 1968. The Prohibition & Excise Inspector, Penukonda, submitted a report along with a copy of FIR and special report to initiate proceedings for confiscation of the vehicle. B. Mallikarjuna, filed a petition along with a copy of R.C. of the vehicle stating that he is the owner of the auto and requested for interim custody of the vehicle. The same was granted on payment of Rs.3,800/- by way of FDR. Thereafter, a show cause notice dated 01.10.2009 was issued to the petitioner calling upon him to show cause as to why the vehicle should not be confiscated and it was served on the petitioner on 07.10.2009. Since he has not filed his explanation within the time stipulated, the order of confiscation was passed on 24.02.2010.
4. The learned counsel for the petitioner states that though it was stated that a show cause notice was served on 07.10.2009, it was not served on him as a result of which he could not file his explanation. But the counter-affidavit denied the said allegation. On the face of the allegation and counter allegation, this Court cannot decide whether the show cause notice was in fact served on the petitioner in the absence of any proof.
5. In the circumstances, the impugned order dated 24.02.2010 of the first respondent is set aside and the first respondent is directed to issue a fresh show cause notice and serve the same on the petitioner by taking acknowledgement and pass appropriate orders after giving due opportunity to the petitioner within a period of three months from the date of receipt of a copy of order.
6. Subject to the above observation, the writ petition is allowed. Pending miscellaneous petitions, if any, shall stand dismissed in consequence. No costs.
A. RAMALINGESWARA RAO, J Date: June 11, 2014 BSB
79 HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO
WRIT PETITION No.28269 of 2010
Date: June 11, 2014
BSB