Topic: Basha vs The State - release of vehicle - excise offence

Basha vs The State
Date of Judgment: 2 July, 1997 - Bench: V B Rao

ORDER

1. The order in Criminal M.P. No. 5530/1996 in Crime No. 260/1996 of P. S., Kachiguda, on the file of VI Metropolitan Magistrate, Hyderabad, dated 16-12-1996 refusing to return the car bearing No. KA-34. M. 19 belonging to the revision petitioner-owner under Section 451 of the Code of Criminal Procedure is challenged in this revision case.

2. The facts giving rise to this revision case in brief are that on 28-11-1996 at 3.30 p.m., S.I. of Police, Kachiguda organised frisking vehicles at Barkatpura 'X' Roads as there was credible information about the illegal transport of I.M.F. liquor bottles. At about 3.30 p.m., the car bearing No. KA-34. M. 19 was stopped and searched and it was found that 140 Bag Piper full bottles of whisky were concealed inside the head-lights and behind the back seat. It was also noticed that some modifications were made in the body so as to conceal whisky bottles and to transport the same. The car driver by name M. C. Munna, S/o Basha, r/o Bellary, Karnataka State and another person by name M. Ram Prasada Rao, s/o. late Nagoji Rao, r/o. Secunderabad, who were transporting the above I.M.F.L. bottles were arrested and the car as well as contraband liquor bottles were seized in the presence of panchayatdars under a panchanama.

3. On a report from the Inspector of Police, P. S. Kachiguda, a case in crime No. 260/1996 under Section 8(a) and (b) of A.P. Prohibition and Excise Act has been registered and investigated. The aforesaid accused persons have been sent up for judicial remand to VI Metropolitan Magistrate, Hyderabad.

4. The revision petitioner claims to be the owner of the above car and he filed a petition under Section 451, Cr. P.C. stating that he has no knowledge of the contraband liquor bottles being carried by the above car and he has nothing to do with both the accused persons and hence the car may be returned to him by way of interim custody under Section 451, Cr. P.C. The petitioner is resisted by the prosecution on the ground that Section 14 of A.P. Prohibition Act requires the seized property including vehicles to be produced before the Deputy Commissioner of Prohibition and Excise for the purpose of taking action in accordance with Section 13 thereof and that Section 13(e) of the said Act is a bar to entertain this application by the learned Magistrate. The learned VI Metropolitan Magistrate, Hyderabad, considered the contentions of both sides and held that Section 13(e) of the said Act is a bar and accordingly the petition has been dismissed. Hence this revision petition.

5. Sri Md. Khasim, learned counsel for the revision petitioner contended that the Magistrate is precluded from exercising jurisdiction under Section 451, Cr. P.C., only when the Deputy Commissioner of Prohibition and Excise is seized of the matter and not otherwise. He further contended that there is no material to show that the car has been produced before the Deputy Commissioner of Prohibition and Excise or that he is seized of the matter and hence Section 13(e) is not a bar. He, therefore, sought for setting aside the impugned order and to direct the return of the car under Section 451, Cr. P.C. as the car is left in open place and it is likely to get rusted on account of sun and rain. The learned Public Prosecutor opposing the petition contended that a duty is cast upon the concerned police to produce the property before the Deputy Commissioner of Prohibition and Excise under Section 14 of the Act and hence it cannot be contended that the car has not been produced before the Deputy Commissioner of Prohibition and Excise and he is not seized of the matter. According to him Section 13(e) and Section 14 have to be read together and the effect is that the jurisdiction of the Magistrate is ousted to entertain any such application.

6. I have applied my earnest consideration to the above contentions and perused the record. A copy of the remand C.D. is made available. It is true that the Remand C.D. is silent about the production of property before the Deputy Commissioner of Prohibition and Excised. It is possible that the concerned police might have produced the same subsequent to the remand of the accused. That is a question of fact and this Court is helpless in not having the relevant material to decide whether the Deputy Commissioner of Prohibition and Excise is seized of the matter or not. In any case it is appropriate to look into the relevant provisions viz., Ss. 13(e) and 14 of the Prohibition Act and they are extracted below :

"13-E Bar of Jurisdiction :-

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 when the Deputy Commissioner of Prohibition and Excise or the appellant authority is seized with the matter under this Act, no Court shall entertain any application in respect of liquor, any receptacle, package, covering, any animal, cart, vehicle or other conveyance used in carrying such liquor as far as its release, or confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the appellate authority with regard to the disposal of the same shall be exclusive".

"14. Police to take charge of articles seized :-

All officers in charge of police stations shall take charge of and keep in safe custody under seal all articles seized under this Act along with samples which shall also be sealed with the seal of the officer in charge of the police station. The seized property including vehicles involved shall be produced before the Deputy Commissioner of Prohibition and Excise having jurisdiction, to take action in accordance with the procedure specified in Section 13".

A combined reading of the above two provisions would go to show that the property seized under the provisions of A.P. Prohibition Act shall have to be produced before the Deputy Commissioner of Excise having jurisdiction for the purpose of taking action in accordance with Section 13 of the Act. It is undoubtedly a mandatory provision. Then Section 13 provides for confiscation of the property in certain cases specified therein an elaborate procedure is prescribed. Section 13(e) creates a bar of jurisdiction of the criminal Court to entertain a petition for the disposal of the property. It is, however, true that seize-in of the matter by the Deputy Commissioner of Prohibition and Prohibition and Excise is a sine-qua-non for the operation of the above bar. Therefore, it would be open to the owners of the properties to set up want to knowledge of the contravention of the provisions of the above Act by the driver or other persons to whom the vehicle was entrusted for a bona fide purpose and seek return of the vehicle under Section 451, Cr. P.C. provided the matter is not seized by the concerned Deputy Commissioner of Prohibition and Excise.

7. Suffice it to state that there is no material before this Court to hold that the Deputy Commissioner of Prohibition and Excise is not seized of the matter and as it is a question of fact, this Court sitting in revision cannot make factual enquiry and hence there is no other alternative except to confirm the impugned order.

8. With the above observations, the revision case is dismissed.

9. Revision dismissed.