Topic: S. Kareemulla and Ors. vs Prohibition and Excise Sub-inspector, Nandyal - release of the vehicle in excise offence
S. Kareemulla and Ors. v. Prohibition and Excise Sub-inspector, Nandyal and Ors.
Equivalent citations: 1996 (1) ALD Cri 943, 1996 (1) ALT 953 - Bench: B Somasekhara
B.K. Somasekhara, J.
1. This batch of writ petitions, involving common questions of law and most of the facts having been admitted are heard on merits as proposed by the learned Advocates both for the petitioners and the respondents, and are being disposed of by means of this common judgment on merits.
2. The vehicles, said to be belonging to the petitioners, were seized by the first respondent for an alleged offence under Section 34(a) of the Andhra Pradesh Excise Act and they are said to have been before the Deputy Commissioner of Excise for initiating confiscation proceedings in accordance with law. Section 46(2) of the A.P. Excise Act. The propriety of the seizure of the vehicles is being assailed on the grounds of illegality, arbitrariness and unjustifiable basis. The petitioners have also sought for release of the vehicles pending any prosecution for the alleged offences and the confiscation proceedings if initiated. The particulars of the vehicles seized in particular proceedings and lying before the particular authority for confiscation are as herein:
Name of the authority before whom the vehicle is produced for confiscation
W.P.23179 of 1995
Dy. Commissioner of Excise
W.P. 23205 of 1995
Bajaj Chetak No. AP-23-4158
Dy. Commissioner of Excise
W.P. 23213 of 1995
Scooter A P. 16-G-9143
W.P.23217 of 1995
Bajaj Chetak No.AES-54
WP.No.2321 8 of 1995
AP 28-B 8846 (Hero Honda)
W.P.No.23510 of 1995
Scooter No. AP 11-181
Suzuku Regn. No.AP22-C-458
WP.No.23684 of 1995
Vehicle Bearing No.APG-96-2569
W.P.No.23702 of 1995
MH. 02/J 5058 Zeep
Scooter AP 11A-8593
W.P.No.23717 of 1995
Scooter AHX 2849
WT. No.23349 of 1995
B. Chetak AP 238213
3. The contention of the learned Counsels for the petitionersin all the cases is that no offence can be made out under Section 34 (a) of the Excise Act and actually it could be an offence under the provisions 7,8 and 11 of the Andhra Pradesh Prohibition Act and that the case has been registered under Section 34(a) of the Excise Act having due regard to certain serious implications flowing therefrom depriving the benefit to the petitioners in regard to the release of the vehicles, quantum of punishment and other consequences. It is also contended that having registered the case under Section 34 of the Excise Act, the Excise authorities are contemplating to deprive the petitioners of the release of the vehicles pending prosecution and confiscation in view of the bar under Section 46-E of the Excise Act, although they have certain rights under the provisions of Prohibition Act in regard to the release of the vehicles. They have further contended that even assuming that the authorities, either under the Excise Act or the Prohibition Act, are unable to release the vehicles for any reason, this Court has power to release the vehicles under Article 226 of the Constitution of India. The learned Advocate for the petitioner in W.P. No. 23213 of 1995 has contended that the learned Magistrate before whom an application was filed for release of the vehicle of the petitioner was not right in dismissing the petition, although he had powers to release it and although the petitioner had merits to get his vehicle released. As a whole, the learned Advocates for the petitioners in all the cases seek a direction to the Excise authorities - Deputy Commissioner of Excise, who is one of the respondents in all the cases to release the vehicles by imposing certain conditions which they are prepared to comply. The learned Government Pleader for Prhobition and Excise while opposing all the petitions very strongly, has contended that the Excise authorities have all the powers and discretion to register the offence under Section 34 of the Excise Act and they cannot be compelled to register the case for any offence under the provisions of the Prohibition Act, that by virtue of the scheme of Sections 45,46 and Sections 46-A to 46-F, there is no scope for releasing the vehicles seized for an offence said to have been committed under Section 34 of the Excise Act and the whole intention of the legislation is to see that the vehicle is confiscated to the Government unless the owner of the vehicle or any person interested satisfies the authorities that it cannot be confiscated. He further contends that neither under the provisions of the Criminal Procedure Code nor under the provisions of the Excise Act and Prohibition Act, the jurisdictional Magistrate or any Court can release the vehicle by way of interim custody nor pass any final order and further more, no provision is made for release of such vehicle by way of interim custody either in the provisions under the Criminal Procedure Code or the provisions of the two enactments or even by the authorities who are empowered to confiscate the vehicles. He also contends that the legislature having provided specific provisions under the Excise Act and the Prohibition Act for the seizure and confiscation of the vehicles and the petitioners having the remedy by way of appeal to the appellate authorities under the said enactments, unless they exhaust their remedy ultimately, even assuming that they will not succeed in getting the release of the vehicles by approaching the concerned authorities, this Court would not be exercising its powers under Article 226 of the Constitution for release of the vehicles.
4. In view of the rival contentions as above, the following points arise for determination:
(1) Whether the vehicles seized by the Excise authorities used for the commission of an alleged offence under Section 34 of the Excise Act or any other law for the time being in force including the Prohibition Act can be released pending enquiry or investigation or trial either before the Court or pending confisaction proceedings before the Excise authorities?
(a) If so, by whom, the vehicle can be released viz., (a) by the High Court under Article 226 of the Constitution of India or under Section 482 Cr.P.C;
(b) by the Court or the Magistrate having jurisdiction over the subject matter and to try the offence regarding which the vehicle is seized; (c) by the authorities dealing with confisaction proceedings either under the provisions of the Excise Act or the Prohibition Act;
(2) If so, under what provision and on what terms?
5. Both sides have made sufficient efforts to assist this Court in examining the above questions of law arising out of such controversy to come to a reasonable and definite conclusion. The contention that the Excise authorities were not justified in seizing the vehicles suspecting that an offence has been committed under Section 34 of the Excise Act is not seriously pressed. However, the learned Counel for the petitioners have kept open this question to be agitated if the petitioners are made accused or tried for such an offence before the competent Court and when the confiscation proceedings are pursued. Neither it can be disputed nor the law permits such a dispute that any vehicle, any property or article can be seized in the course of the investigation or detection of an offence for which an accused can be tried and punished in accordance with law. Such illustrations are to be found in Sections 100 and 102(1) Cr.P.C. wherein the law is so clear that any property in such a situation can be seized. Under special laws like the A.P. Excise Act the relevant provisions in regard to the seizure are Section 53(b) read with Secs.45(3). The relevant provisions for seizure of the vehicle or any property under the Prohibition Act are Sections 17(1), 18,21 and 24. (with the powers of search and seizure under Sees. 100 and 102 of Cr.P.C). The vehicles or the properties seized during the course of the investigation or the detection of an offence can be confiscated by the Courts and the authorities subject to certain limitations and conditions. In procedural law, the disposal of the property like the vehicle falls under Sections 451, 452 and 457 Cr.P.C. including the confiscation under Section 452 Cr.P.C. In so far as special laws are concerned, the power of confiscation of such vehicles or property alleged to have been used for commission of such an offence, is vested in the authorities under Sections 45 and 46 of the Excise Act and under Sections 12 and 13 to some extent in regard to the disposal under Section 14 of the Prohibition Act. Therefore, the real question is not whether the vehicle or property can be seized and confiscated, but the true question particularly in these cases is whether such seized vehicles can be released to the persons who are entitled to such vehicles by way of interim custody pending the prosecution before the appropriate Court and pending the confiscation proceedings before the Excise authorities. That will depend upon the provisions already pointed out in addition to the other provisions to be examined in detail.
6. There cannot be any dispute that there is no bar either in the Excise Act or the Prohibition Act or any special law like that in regard to the powers of the Court to dispose of the property finally in accordance with Section 452 Cr.P.C. while trying the offence, if ultimately the Court is satisfied in regard to the same. Uncontrovertedly, the offence punishable under Section 34 of the Excise Act is triable by a jurisdictional Magistrate. (Implications of Chapter VIII). To that extent, it cannot be contended that the jurisdictional Magistrate cannot dispose of the property in accordance with Sections 451,452 and 457 of Cr.P.C. even for an offence under the special statutes like Excise Act. Therefore, we are only to find out whether there is actually any bar in the two enactments in question, in the first place, for a Magistrate or the Court to order interim custody of the vehicle in favour of the owner of the vehicle or in favour of any person who is entitled to the possession.
7. The contention of the learned Advocates that the authorities are entitled to register a case under Section 34 of the Excise Act notwithstanding a similar provision in the Prohibition Act and that they cannot be compelled to register the case only under a particular enactment or provision appears to be sound. However, the question is whether such registration of the case would bar the jurisdiction of the Criminal Court. It is settled law that whenever any case is registered under any provision by any authority as in the present cases, it is the duty of the Court in the first place to examine facts called jurisdictional facts to know under what provision the offence falls fundamentally to examine its jurisdiction and to pass appropriate orders in accordance with law operating upon the facts of each case. It is only thereafter the Court will be able to find out whether a particular order can be passed or not. This rule equally applies to the authorities like Excise Officers and the Prohibition Officers under the two enactments. The learned Advocates for the petitioners have contended that strictly speaking the offence alleged against certain persons in all the petitions including some of the petitioners falls within the provisions of the Prohibition Act viz., under Chapter III and in particular Sections 7, 8 and 11 since the possession of the prohibited liquor is said to be with particular accused persons. They have further contended that the provisions depended upon by the learned Government Pleader, arising out of the Excise Act as above do not apply to such situations. This Court having examined the matter in detail finds it difficult to accept the contention of the learned Advocates for the petitioners in this regard. Since the possession of liquor is alleged as against certain persons, the offence falls both under Section 34(a) of the Excise Act and also under Sections 7,8 and 11 of the Prohibition Act. In fact, the seriousness of the offence is something more when it is alleged that some of the accused persons were transporting the liquor by means of the vehicles which are seized. Therefore, more man one offence is alleged against certain persons arising out of Section 34 of the Excise Act and only one of them falls under Sections 7,8 and 11 of the Prohibition Act. Only in such a situation, we have to examine whether for seizure of the vehicles suspecting that such offence had been committed, the vehicles can be released either under Section 451 Cr.P.C. or under any of the provisions of the Excise Act and the Prohibition Act. In so far as the power of the Magistrate or the Court to release the vehicle under Section 451 Cr.P.C. or under any of the provisions of the Chapter XXXIV up to Section 459 is concerned, there is a clear bar under Section 46-E of the Excise Act which reads as follows:
"Notwithstanding anything contained in the Code of Criminal Procedure, 1973. (Act 2 of 1974) when the Deputy Commissioner of Excise or the appellate authority is seized with the matter under this Act, no Court shall entertain any application in respect of excisable articles any package. covering, receptacle, any animal, vehicle or other conveyance used in carrying such articles as far as its release, confiscation is concerned and the jurisdiction of the Deputy Commissione rof Excise or the appellate authority with regard to the disposal of the same shall be exclusive."
8. The learned Government Pleader is totally right in contending that in so far as the powers of the Magistrate to provide interim custody under Section 451 Cr.P.C. is concerned, Section 46-E of the Excise Act imposes an abolute embargo or bar. But the learned Advoctes for the petitioners are right in contending that . there is no bar in any of the provisions of the Prohibition Act in regard to providing interim custody by a Court and in particular a jurisdictional Magistrate under Section 451 of the Cr.P.C. On the other hand, they contend that impliedly having due regard to the implications of Sections 12 to 14 of the Prohibition Act, it is the Court or the Magistrate which is firstly entitled to pass an order of interim custody of the vehicle or any property for an offence regarding which the vehicle is seized. In this regard, a latest decision of this Court in Jitendra Palnitker v. State of Andhra Pradesh. has been depended upon. This decision supports such a contention. However, certain observations are made in that decision in interpreting Sections 12 to 14 of the Prohibition Act and some other provisions. Having due regard to the seriousness of the questions of law involved in these cases and since some other implications are not considered in detail in this decision, this Court is obliged to examine all the questions relating to such a view. However, the learned Government Pleader is not for a moment presenting any decision or precedent or a view contrary to the one expressed in the decision supra.
9. Before adverting to the powers of the Magistrate or the Court under the provisions of the Prohibition Act to pass an order for the interim custody of the properties like vehicles seized for the commission of the offence, it may be necessary to examine the true implications of law in regard to such a question. Only in that background, the powers of any authority under a special law can be examined to deal with such a situation. It is rudimental that the Courts or the final authorities, in the adjudicatory process of administration of Criminal justice particularly in the light of Article 21 of the Constitution of India and generally the Criminal Courts by virtue of Section 4 of the Criminal Procedure Code, should try the offence. Section 4 of the Code of Criminal Procedure reads as follows:
"Section 4: Trial of offences under the Indian Penal Code and other laws:- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
The simple meaning of this provision is that all the offences are to be investigated, enquired into or tried in accordance with the provisions of the Code of Criminal Procedure particularly the offences under the Indian Penal Code and specially by virtue of Sub-clause (2) applicable to the offences in other enactments also. However, Sub-clause (2) is so emphatic that this is subject to the provisions having been made in any other special law. The doctrine of exclusion of jurisdiction of the regular Courts to deal with a matter and to pass appropriate orders in such criminal proceedings is founded in the maxim 'Generalia Specialibus Non Derogant' (special law overrides general law). In other words, jurisdiction over the Courts to deal with the matter and pass orders in accordance with the provisions of the Code of Criminal Procedure should be presumed and to hold the contrary, there must be a specific bar in any special law in regard to certain matters under the Criminal Procedure Code and by necessary implication by making such similar provisions to deal with a matter in the special enactments. Such a view has been concluded by the Supreme Court in Bhim Sen v. State of U.P. In other words, unless the provisions either in the Excise Act or Prohibition Act are specific barring the jurisdiction of the Court to provide for the interim custody of the vehicle seized in the commission of such offence, Section 4 of the Cr.P.C. presumes such a jurisdiction of the Courts. However, as already pointed out, in so far as the offence under Section 34 or any other provision of the Excise Act is concerned, the jurisdiction of the Courts are barred specifically by virtue of Section 46-E of the Excise Act. But there is no such specific bar under any of the provisions of the Prohibition Act. In other words, there is no similar provision like Section 46-E of the Excise Act in the Prohibition Act. Therefore, normally speaking, the jurisdiction of a Magistrate or a Court to pass an order under Section 451 Cr.P.C. to release the vehicle by way of interim custody pending investigation, trial or enquiry cannot be taken to have been restricted or barred under the Prohibition Act. The question is whether it has been impliedly barred. In Jitendra Palnitker's case (1 supra), it has been pointed out that there is a specific provision under. Section 13 of the Prohibition Act empowering a Magistrate to pass the final order of disposal of property or vehicle seized and as a consequence of the said interpretation, the vehicle so seized can be disposed of by way of interim custody: There is no reason to take any other view than what is expressed in the decision cited supra. Apart from that, there are few more reasons in support of such a view. Section 13 of the Prohibition Act reads as follows:
"Section 13:- Confiscation how ordered-
(1) When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the Court decides that anything is liable to confiscation, such confiscation may be ordered by the Court.
(2) When an offence against this Act has been committed but the offender is not known, or cannot be found, or when any thing liable to confiscation under this Act and not in the possession of any person cannot be satisfactorily accounted for, the case shall be enquired into and determined by the Collector or other Prohibition Officer in charge of the district or any other officer authorised by the State Government in that behalf, who may order such confiscation:
Provided that no such order shall be made until the expiration of fifteen days from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims."
10. Patently, the power is given to a Magistrate or the Court to pass an order of final disposal of the vehicle and other property seized for the alleged offence under the Prohibition Act by virtue of Sub-clause (1). That would be in a case where an accused is going to be convicted or acquitted. This provision is almost similar to Section 452 of Cr.P.C. Sub-clauses (1) and (2) of Section 13 empowers both the Magistrate and also the Excise Officer to pass an order of disposal of property in a particular situation where the name of the accused is not known, and where the possession is not accounted for etc. and this provision is almost similar to Section 457 Cr.P.C. It is true that the intendment of Section 13 of the Prohibition Act is in regard to final disposal of the vehicles or the property seized which should be more like an order under Section 452 Cr. P.C. But if we read Section 14 of the Prohibition Act, it is apparent mat either a Magistrate or Prohibition Officer can pass an order with regard to the properties seized by the Excise authorities, although with a luxury, Section 14 of the Prohibition Act requires repetition;
"Section 14. Police to take charge of Articles seizeds-
All officers in charge of police stations shall take charge of and keep in safe custody pending the orders of a Magistrate or of a Prohibition Officer, all articles seized under this Act which may be delivered to them; and shall allow any Prohibition Officer who may accompany such articles to the police station, or who may be deputed for the purpose by his superior officer, to affix his seal to such articles and to take samples from them. All samples so taken shall also be sealed with the seal of the officer incharge of the police station."
The provision is so clear mat the officers in-charge of the police station are entitled to get the seized properties to their possession subject to the orders of the Magistrate or the Prohibition Officer. This should be almost like an order to be passed under Section 451 Cr.P.C. Therefore, if we read Section 13 in the light of Section 14 of the Prohibition Act, it is possible to interpret that the law makers have left the powers to the Magistrate to pass an interim order similar to the one which can be passed under Section 451 of the Cr.P.C. It is true that such a power is also given to the Prohibition Officer. Till a final expression is given in this regard, it can be stated that the powers of both the Magistrate and the Prohibition Officer to pass such an interim order is concurrent. Since there is no specific provision in the Prohibition Act barring the jurisdiction of the Court or the Magistrate to pass an order in regard to the release of the vehicle or property seized for an offence committed under the Prohibition Act read with the provisions stated above, this Court is convinced that there is no bar for a Court or Magistrate to pass an order releasing the vehicle.
11. The learned Advocates for the petitioners have contended that in view of Section 31 of the Prohibition Act, the power of the Court or the Magistrate to release the vehicle in such a situation provided in this enactment cannot be taken to have been affected by virtue of Section 46-E of the Excise Act It is true that Section 31 of the Prohibition Act makes the terms in a clear manner that save as otherwise provided, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the provisions of the Andhra Pradesh Excise Act, 1968 and the rules made thereunder. To that extent, the bar under Section 46-E of the Excise Act will not affect the powers of the Magistrate or the authorities under the provisions stated above in the Prohibition Act. In other words, the effect of Sections 13 and 14 of the Prohibition Act supra over-rides the bar under Section 46-E of the Excise Act in regard to the release of the vehicle seized for an offence. But the learned Government Pleader submits that that may be only in a case where the offence falls only under any of the provisions of the Prohibition Act. There appears to be an infirmity in such a contention. If an offence does not fall in any of the provisions of the Prohibition Act, then Section 31 of the Prohibition Act cannot come into force at all. In such a situation, Section 46-E of the Excise Act would be an absolute bar for any Court to dispose of any application relating to the release of a vehicle or any property seized for an offence under the Act. The only difficulty arises if an offence falls under the provisions of both the Acts. Here is a serious question to be answered whether the petitioners who are entitled to the benefit of release of the vehicle by virtue of Sections 13,14 and 31 of the Prohibition Act can be deprived of the same just because the offence also falls under Section 34 of the Excise Act and just because the authorities thought of registering the case for the offence under the said Act. The law appears to be that where there is more than one law a law providing for a relief or benefit to the accused or a person who is an accused or a person who is accused of an offence in any manner, such a benefit cannot be deprived just because the same benefit is taken away by some other statute. That may be possible when there is a conflict between general and special law. If two special laws provide provisions -- one non-beneficial and other beneficial - the latter law providing benefit should be operated as the settled law appears to be that the criminal law should be interpreted so as to render benefit to an accused person. Section 31 of Prohibition Ac t should be meaning that. In that interpretation of law, it must be concluded with certainity that in a case as the present one, when the offence falls both under Section 34 of the Excise Act and also any of the provisions of the Prohibition Act, the benefits conferred under the latter Act should be extended to such accused persons. It may be a question whether such a benefit could go to the persons who are not accused persons. Whether a person is going to be an accused or not shall be dependant upon the facts and circumstances of each case. In the present cases, some of the petitioners claim to be the owners of the property or vehicles and some of them are accused of the offence and ultimately it may transpire that, if established, the owners may themselves turn to be the accused persons and the contrary also true. In such situations, it is difficult to accept the contention as above. Therefore, it must be concluded that a Magistrate or a Court is empowered to pass an order of release of the vehicle or any property seized for an offence committed under the provisions of the Prohibition Act although similar offence could fall within one or any of the provisions of the Excise Act in the exercise of the powers under Section 451 Cr.P.C.
12. The learned Government Pleader contends that the order of confiscation of the property seized under the provisions of the Prohibition Act is subject to the powers of the Excise Authorities under Section 46 of the Excise Act by virtue of Section 12 and therefore, in such a situation, the petitioners cannot be given the benefit of such an interpretation of a Criminal statute. It is true that the result of confiscation under Section 12 of the Prohibition Act is subject to the powers of the Excise Officers under Section 46 of the Excise Act. Again that should be read in the context of Section 31 of the Prohibition Act which has got over-riding effect on the provisions of the Excise Act. Again intermingling with the legal effect of the provisions of Section 46-E of the Excise Act and Secs.12 & 13 of the Prohibition Act, the benefit conferred on such persons by virtue of a similar law cannot be deprived and it should be taken as having over-riding effect on such a provision like Section 46-E of the Excise Act. It is made very clear that if any offence is registered under Section 34 or any other provision of the Excise Act and if it does not fall within any of the provisions of the Prohibition Act, no such benefit is conferred in regard to the bar of jurisdiction.
13. One more serious question that poses itself for consideration is whether the Magistrate or the Court alone can be said to be entrusted with the powers to release the vehicle by way of interim custody under Section 451 Cr.P.C. when concurrent and equal powers are conferred on the Prohibition Officer by virtue of Sections 13(2) and 14 of the Prohibition Act. On a reading of the two provisions carefully, this Court feels that the powers of the Magistrate or the Court should be taken to be superior and primary as against the powers of the other Officers. It appears that such a power is conferred on other officers like Prohibition Officers to deal with the matter when the Court fails to pass an order or when it is not in a position to pass such an order for any reason. Such circumstances are many and innumerable. It is difficult to record the illustrations because as between the functions of the Courts and the authorities there is a division and the latter cannot be so hazardous or magnitudable when compared to the former in regard to release of properties. In that situation, it is possible that the Courts or the Magistrate may not pass such orders and in such an event, it is permissible for Excise Officers or Prohibition Officers to pass such orders. But it should be made clear that if a Magistrate passes such an order, it cannot be varied or interfered by an Excise Officer or Prohibition Officer to the detriment of the interests of the persons interested in such a situation. But the latter may not be true, however subject to appeals etc. But still the propriety and the policy require that the persons who are interested in getting a relief should approach one of the forums to avoid conflict of decisions.
14. Then comes the question whether notwithstanding any of the ramifications or the implications and the consequences of the provisions of law as above, whether the Court or any authority would be justified ox compelled to pass an order for disposal of property like a vehicle seized in the course of detection of an offence or investigation. Sections 451 and 457 and some other provisions of the Code of Criminal Procedure and similar provisions of any other enactment and in particular the Excise Act should be taken to mean that particularly where a property so seized is perishable or was in a state of decay, should be either disposed of or interim custody should be provided pending enquiry, investigation or trial. Otherwise, it would be a loss not only to the parties who are entitled to it, but also to the State ultimately in case the property has to be confiscated in money value. Judged in any manner, the preservation of the seized property would be beneficial to one and all. Then a simple question crops up whether a vehicle so seized would be perishable or decayed in lapse of time. In that sense, it may be argued that a vehicle is a property which normally will not decay or perish. Such an argument may not be always acceptable. Although an automobile like a vehicle moves it would be classified as a thing having life. Even the non-utility or non-user would deteriorate an automobile or a vehicle. Particularly the vehicle seized in the course of the detection of an offence or investigation is in the knowledgeable experience are known to be allowed to rot in front of police stations and the offices of the Excise Department due to the pendency of the cases which are not being disposed of with all speedy despatch and expeditious approach of the matter. It cannot be forgotten that any property let alone the vehicle is a national asset. It is for the benefit of the members of the community at large, let alone to the State particularly in a country like India where communication is a great problem, the loss or absence of vehicles would affect normal movement of the people, commodities medicines and the consumable articles and any other useful and utilatable articles as a whole. Therefore, if a vehicle is allowed to be put to non-user or allowed to be decayed in the process of time, it would become a junk or a scrap of iron or any other metal or any synthetic material as is being done in modern days making it almost a useless material or a valueless one or losing its real worth. In that situation, if we apply the real implications of the properties which are perishable or decayed, the vehicles may not be allowed to be detained. In that view of the matter also, such orders of interim disposal should be passed by the Courts or particular authorities as normal rule. The question cannot be concluded in regard to the vehicle in view of the authoritative pronouncement of the Supreme Court in Smt. Basava Kom Dyamogouda Patti v. State of Mysore and Anr. which would guide us not only in this case but also for all such cases to come before the Courts. To read;
"Where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a dear entrustment of property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned during any inquiry or trial. This may particularlybe necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In the broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
It must be emphasised at this stage that the release of the seized properties by the Magistrates or the authorities would be a rule and the rejection may be an exception, however, by imposing certain conditions for production of that vehicle either for identification or for security, which can be enforced by Courts, the vehicle can be released. Unless for extraordinary circumcances, for reasons to be recorded in writing, no property seized in the course of investigation or detection of crime can be rejected to be released unless such release is barred under any law as is in the case of Section 46-E of the Act. But Section 46-E of Excise Act should have been meant to empower the authority who can confiscate the seized properties under Section 45 of the Excise Act is bound to arrange for internal custody like Sections 451 and 457 of Cr.P.C.
15. The learned Advocates for the petitioners have urged seriously that not withstanding the interpretation of law as above and the provisions like Section 451 or 457 Cr.P.C. and other similar sections in special enactments like the Excise Act or the Prohibition Act, this Court would be justified in passing an order of interim custody by way of an interim order by exercising its powers under Article 226 of the Constitution of India. In support of such a contention, the pronouncement of a Division Bench of this Court in B. Venu Naidu v. Joint Collector. is depended upon by the learned Advocates for the petitioners. While dealing with the question, this Court has categorically and affirmatively held that the powers of this Court to release the vehicles under Article 226 of the Constitution of India cannot be questioned and it has been done in so many matters. But if we read the observations of this Court in paragraph 8, such a power to be exercised depends upon the facts and circumstances of the case and to read thus:
"7. It would be seen that the Supreme Court was dealing with a petition under Article 32 of the Constitution and in that context, it observed as quoted above. The scope of a petition under Article 32 of the Constitution is restricted to an enquiry as to whether a Fundamental Right has been iolated, ans any restraint which this Court imposes upon itself in having regard to the facts and circumstances of the case. The Supreme Court, in our opinion did not intend to lay down the limits of jurisdiction of the High Court in this behalf, nor to defined the scope of any order that may be made under Article 226 of the Constitution in a case such as this. Any such law cannot limit the scope of the orders which the High Court may make under Article 226 of the Constitution. These statutes only regulate the jurisdiction. Power and procedure of the authorities constituted under the Act and these provisions may only guide the High Court in making interim orders in such case pending disposal of writ petitions: but they cannot restrict the power pr authority or jurisdiction of the High Court under Article 226 of the Constitution to pass appropriate orders having regard to the circumstances of each case. We, are, therefore, unable to agree with the contention of the learned Government Pleader that the High Court is not competent to order release of the goods in favour of the appellant merely because the proceedings under Section 6-A of the Essential Commodities Act are pending. This Court has directed release of goods in a number of cases and that authority has never been seriously disputed on the ground that the High Court has no jurisdiction to make such orders. These orders were questioned on the ground mat a particular case was not a fit case for ordering release of the goods."
16. It is true that the powers of this Court under Article 226 of the Constitution of India are unfettered to issue any writ contemplated therein but also to issue any direction and pass orders to achieve the purpose of the Constitution of India and to meet the ends of justice. As is pointed out in the case supra, it equally applies to the powers under Article 32 of the Constitution of India. But the question is, whether this Court should or will exercise such power in all the cases when other Courts and authorities are vested with such powers and take over all such duties unless in a particular case or situation where the powers are warranted to be exercised. This Court after examining the facts and circumstances of these cases feels that there are no reasons as to exercise the powers under Article 226 of the Constitution of India even when the parties have not only alternative remedies but also effective remedies. At this stage, it must be pointed out that the concept of taking justice to the doors of the citizens who are the people of India, i.e., Bharat under the preamble of the Constitution, would be consistent with the exercise of powers by the Courts and authorities which are vested in them than approaching the High Court all the time under Article 226 of the Constitution. That would not only put the litigant public and the advocates to difficulties particularly when they come from far off places as can be judicially noticed that in Andhra Pradesh the last district Like Srikakulam must be beyond 700 to 800 K.Ms. from Hyderabad. To think of a poor litigant to get a tiny vehicle like TVS or Luna released by the High Court, the law makers would not have intended to compel such persons to approach only under Article 226 of the Constitution, while other laws provide for such reliefs. Para 5 of B. Venu Naidu's case (4 supra) also supports such a view.
17. Therefore, this Court with all appreciation, considerations and sympathy feels that in cases like this, the parties should approach the Courts and such authorities first, the appellate authorities next if provided under the statutes, and only thereafter approach the High Court under Article 226 of the Constitution, if they get no remedy at the hands of such Courts and authorities and unless such situations or circumstances under law debar them from espousing their causes before such forums.
18. As a consequence of the discussion supra, this Court holds that the petitioners are entitled to approach the concerned Magistrate within whose jurisdiction the offence is said to have been committed or the vehicle is said to have been seized by making an application under Section 451 Cr.P.C. for release of the vehicle, which will be disposed of in accordance with law. It is also made very clear that in case they fail to get such a remedy, they should exhaust further remedy by way of appeal provided under the Criminal Procedure Code to the superior Courts like the Sessions Court etc. It i s also made very dear that having due regard to the interpretation stated above, the petitioners are also entitled to approach the Excise authorities for such a remedy for interim custody of the vehicle, if the magistrates in Criminal Courts are unable to pass any order for any reason, however the rule shall be to approach the Courts first. However, it is made very clear that they cannot have both the remedies and if they seek for one remedy they will be debarred from seeking another remedy.
19. Thus, all the writ petitions succeed in a sense that the petitioners are entitled to get their vehicles released, however, by making applications either before the Magistrates having jurisdiction or before the appropriate authorities in accordance with law as detailed above. Having come across with such matters of release of vehicles or properties, this Court feels that each case has to be disposed of on the facts and circumstances of each case in regard to the conditions to be imposed like production of the vehicle, the undertaking not to alienate the vehicle till further orders and by fixing the value which is appropriate, so that ultimately the State should not lose the value as such, in case the vehicle is not produced. Therefore, it is emphasized that when such applications are made, the Courts or the authorities should hold a formal or simple enquiry to know the value of the vehicle either from the panchanams or from all the documents produced by the parties or by the State or from the totality of the material produced before them and by taking judicial notice of the facts in accordance with law. But at the same time it must be emphasised that while fixing such value, the Courts or the authorities should not be too harsh or impracticable, so that the ends of justice are not frustrated.
20. Therefore, it is directed that the petitioners shall make applications before the concerned Judicial Magistrates or the authorities concerned for release of the vehicles subject to the orders to be passed by such Courts or the authorities in accordance with law. However, if such applications are made, they shall be disposed of within 15 days from the date of the application, after hearing any Government Pleader or the Public Prosecutors who represent the State also.
21. In so far as W.P.No. 23213 of 1995, while allowing the writ petition, the matter is remitted back to the III Metropolitan Magistrate, Vijayawada for disposal accoridng to law in the light of the observations made above.
22. In W.P. No. 23349 of 1995 it is submitted mat the application for release of the vehicle is pending before the Deputy Commissioner for Excise since 19-10-1995. The matter is remitted back to the said authority for disposal according to law in the light of the observations made above within one week from the date of receipt of a copy of this order after giving opportunity to both the learned counsel.
23. In the result, all the writ petitions are allowed. In the circumstances, there shall be no order as to costs.
24. The operative portion of this order shall be communicated to the Sessions Judges of all the District Courts and the Commissioner of Excise immediately to suitably instruct the concerned Courts and the authorities as the case may be within their jurisdiction to deal with the matter in accordance with the directions contained as above.