HON'BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.7078 of 2014 Date: 26.09.2014 Between:
Nunavath Balaji .. Petitioner/ Owner of the vehicle AND The State of Telangana, through S.H.O., Kusumanchi Police Station, Kammam District, rep.by its Public Prosecutor, High Court, Hyderabad. .. Respondent/ Complainant HON'BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition No.7078 of 2014 ORDER:
The petitioner sought for interim custody of his vehicle i.e. Hero Honda Splendor Vehicle bearing registration No.AP20-N-0242. He filed a petition under Section 457 Cr.P.C before the Trial Court. The petitioner allegedly committed an offence under Section 34 (e) of the Andhra Pradesh Excise Act, 1968 (the Excise Act, for short). The learned Trial Judge held on the basis of Oruganti Seshachala Venkateshwarlu v. Government
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of Andhra Pradesh that a Judicial Magistrate of First Class has no jurisdiction under Section 457 Cr.P.C. to pass orders regarding interim custody of the vehicle, which was not produced before him, in view of the bar under Section 46 (e) of the Excise Act. Considering that the Court has no jurisdiction where the offence is triable under the provisions of the Excise Act and that it is only the Deputy Commissioner of Prohibition and Excise who is entitled to deal with the interim custody of the property, the learned Trial Judge dismissed the petition. Questioning the same, the present petition is laid.
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2. In P.Swarupa v. State of A.P. , a Division Bench of this Court held that the Court has jurisdiction to entertain an application for interim custody of the property either if the case is exclusively registered under the provisions of the Andhra Pradesh Prohibition Act or under the provisions of the A.P. Excise Act and A.P. Prohibition Act. The Division Bench further clarified that if the case is laid exclusively under the provisions of the A.P. Excise Act, it is the Deputy Commissioner of Excise who is entitled to dispose of the property.
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3. In Public Prosecutor v. G.Marimuthu Konar , a case was registered under the provisions of the A.P. Forest Act. A lorry was seized under the provisions of the Forest Act. A learned single Judge of this Court held that the Magistrate has powers to dispose of the property under Section 44 (4) of the Forest Act as well as under Section 457 Cr.P.C.
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4. In Ulli Bhaskar v. State of A.P. , black jaggery and alum were seized under the provisions of the Excise Act and under the provisions of Prohibition Act.
The Court held that black jaggery and alum are not intoxicants and that their sale cannot be subject matter of punishment.
5. In Chindura Muthaiah & Co., Kamareddy, Nizamabad District, A.P. v. Deputy Commissioner of
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Prohibition and Excise, Karimnagar, A.P. , the Court ordered return of a vehicle involved in an offence under Section 34 (e) of the Excise Act.
6. In an unreported decision in Criminal Revision Case No.2484 of 2012, dated 11-12-2012, (M/s. Amruthavarshini Dairy Farms Pvt. Ltd. v.
The State), the petitioner was involved in an offence under the Prohibition Act. On the basis of P.Swarupa’s case (2 supra), the Court considered it appropriate to return the vehicle. Further, in Public Prosecutor v. G.Marimuthu Konar’s case (3 supra), the Court held that even when the property is seized under the provisions of the Forest Act, a Judicial Magistrate of First Class is entitled to grant interim custody of the vehicle under the provisions of Section 457 Cr.P.C. In view of these decisions, it is contended by the learned counsel for the petitioner that the petitioner is entitled to interim custody of the property.
7. Albeit it was observed in P.Swarupa’s case ( 2 supra) that the Court has no jurisdiction when the offence involved is under the provisions of the A.P. Excise Act, a different view was taken by this Court in M/s. Amruthavarshini Dairy Farms Pvt. Ltd. v.
the State (Crl. R.C. No.2484 of 2012, dated 11-12-2012). In view of M/s. Amruthavarshini Dairy Farms Pvt. Ltd. v. the State (Crl.R.C.No.2484 of 2012, dated
11-12-2012), I consider that the Criminal Court has got jurisdiction to pass orders regarding the disposal of property, more so by way of interim custody.
8. Indeed, the vehicle involved in this case is under Section 34 (e) of the Excise Act. This Court has held in P.Swarupa’s case that the Court has no jurisdiction when the offence involved is under the provisions of the Excise Act only. However, in view of the decision of this Court in Crl.R.C.No.2484 of 2012, I consider that the Criminal Court has got jurisdiction to order the disposal of the property, more so, by way of interim custody.
9. The petitioner claimed that he is the owner of the property and seeks for interim custody of the vehicle. Detention of the vehicle with police or excise officials certainly would cause damage to the vehicle if the vehicle is not put to use. I, therefore, consider it appropriate to grant interim custody of the same to the petitioner subject to the result of the trial.
10. Accordingly, this criminal petition is allowed. The order of the Trial Court in Crl.M.P.No.1171 of 2014 in Crime No.28 of 2014 dated 02.02.2014 is set aside. The petitioner is granted interim custody of Hero Honda Splendor Vehicle bearing registration No.AP20-N-0242 subject to his proving ownership to the vehicle, on a personal bond of Rs.40,000/- (Rupees forty thousand only) with two sureties in a like sum to the satisfaction of the learned Special Judicial Magistrate of First Class for Prohibition and Excise Cases, Khammam, and on further conditions as follows:
1) that the petitioner shall produce the vehicle before the Trial Court as and when directed by the Trial Court,
2) the petitioner shall not alienate or dispose of the vehicle without prior permission of the Court and
3) the petitioner shall not alter the shape or condition of the vehicle without prior permission of the Court.
11. The miscellaneous petitions pending, if any in this criminal petition, shall stand closed.
Dr. K.G.SHANKAR, J.
26th September, 2014.
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HON'BLE Dr. JUSTICE K.G. SHANKAR Criminal Petition No.7078 of 2014
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26th September, 2014.
[1] 2003 (2) ALT 444
[2] 1995 (3) ALD 1090 (D.B.)
[3] LAWS(APH)-1980-12-35/APLJ-1981-1-84
[4] 2004 (1) ALD (Crl.) 561 (AP)
[5] 2006 (2) ALD 367