THE HON'BLE DR. JUSTICE K.G.SHANKAR CRIMINAL PETITION NO. 7394 OF 2014 Date : 09-07-2014 Between :
Vallam Vishnuvardhan .. Petitioner and The State of Telangana, rep. by its Public Prosecutor, High Court at Hyderabad For the State of Telangana and for the State of Andhra Pradesh, Hyderabad. .. Respondents THE HON'BLE DR. JUSTICE K.G.SHANKAR CRIMINAL PETITION NO. 7394 OF 2014 ORDER:
The petitioner seeks to set aside the order of the learned Judicial Magistrate of First Class, Mulugu, Warangal District in Crl.M.P.SR.No.1405 of 2014 in Crime No. 88 of 2014 dated 28.6.2014.
2. The vehicle of the petitioner i.e., Auto Rickshaw bearing Registration No. AP.36.UGTR.3217 was seized by the Prohibition and Excise officials. A case was registered under Section 34(e) of A.P. Excise Act, Section 5 of GUR Act, 1968 and under Section 7(A) read with 8(e) of A.P. Prohibition Act (for short, “Prohibition Act”). The petitioner sought for interim custody of the vehicle. The learned Judicial Magistrate of First Class, Mulugu held on the basis of Oruganti Seshachala Venkateshwarlu vs. Government
[1]
of Andhra Pradesh that a Judicial First Class Magistrate 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 49(E) of the Excise Act. The learned Magistrate held that the Deputy Commissioner, Prohibition and Excise alone is entitled to deal with the disposal of the vehicle and that the petition, therefore, was not maintainable. Consequently, the learned Magistrate dismissed the petition. Hence, the Criminal Petition.
3. The learned counsel for the petitioner submitted that the Court has, indeed, jurisdiction to entertain the application and can order return of the vehicle for interim custody even if case is registered under the provisions of the Andhra Pradesh Prohibition Act, 1995 (for short, “Prohibition Act”) or under the provisions of the Excise Act. In support of his contention, he placed reliance in
[2]
P.Swarupa v. State of A.P. , wherein a Division Bench of this Court held that albeit, a case is registered either exclusively under the Prohibition Act or under the Excise Act and A.P.Prohibition Act, Courts have jurisdiction to release the vehicles involved in the offence. The Court further observed that if the case is registered exclusively under the Excise Act, it is only the Deputy Commissioner of Excise, who is entitled to release the vehicle.
[3]
4. I n 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.
[4]
5. 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.
6. I n Chindura Muthaiah & Co., Kamareddy, Nizamabad District, A.P. vs. Deputy Commissioner of Prohibition and
[5]
Excise, Karimnagar, A.P. , the Court ordered return of a vehicle involved in an offence under Section 34(e) of the Excise Act.
7. 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 (2nd supra), the Court considered it appropriate to return the vehicle. Further, in Public Prosecutor v. G.Marimuthu Konar’s case (3rd supra), the Court held that even when the property is seized under the provisions of the Forest Act, a First Class Magistrate 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.
8. Indeed, the vehicle involved in this case is under Section 34(e) of A.P. Excise Act, Section 5 of GUR Act, 1968 and under Section 7(A) read with 8(e) of A.P. Prohibition 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.SR. No. 1405 of 2014 in Crime No. 88 of 2014 dated 28.6.2014 is set aside. The petitioner is granted interim custody of Auto Rickshaw bearing Registration No. AP.36.UGTR.3217 subject to his proving ownership to the vehicle, on a personal bond of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties in a like sum to the satisfaction of Judicial Magistrate of First Class, Mulugu, Warangal District, 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. Miscellaneous Petitions, pending if any in this Criminal Petition, shall stand closed.
DR JUSTICE K.G.SHANKAR Date: 09.07.2014 SKMR
[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