Nomula Lingaiah v. Department, Secretariat, Hyderabad

. Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondent No. 3 to return the FDR for Rs. 2,00,0001 bearing Receipt No. 156750 drawn in A. P. Grameena Vikas Bank, Nalgonda Branch deposited by the Petitioner at the time of granting interim custody-of the vehicle seized in relation to FIR No. 514 of 2O20 on the file of the 4th Respondent in view of acquittal of the accused in c. c. No. 888 of 2021 on the file of principal Junior Civil Judge- cum- Judicial Magistrate of First Class at Suryapet, pending disposal of lhe above writ petition in the interest of justice Counsel for the Petitioner: SRl. SHAIK MADAR Counsel forthe Respondent Nos. 1to3: SRI A. JAGAN, c o u n s e I f o r t h e he s p o n d e n t rv ". +. e pclolofoPff H I B I Tl o N E x c I s E The Court made the following: ORDER :1 a THE HONOURABLE SRI JUSTTCE B. VIJAYSEN REDDY WRIT PETITIONN0.5319 0F 2024 ORDER This writ petition is filed by the petitioner challenging the order in CR.No.2934l2 022/CPElEx/Dl, dated 23.09.2023, passed, by respondent No.2 - the Commissioner, Prohibition and Excise, Hyderabad, confirming the order of confiscation in Cr.No.50/2021lB, dated 01.08.2022, passed by respondent No.3 - the Deputy Commissioner of Prohibition and Excise, Nalgonda, and for a consequential direction to respondent No.3 to retum the Fixed Deposit Receipt (FDR) No.156750 for an amounr of Rs.2,00,000/- (Rupees two lakhs only) drawn on The Andhra Pradesh Graamena Vikas Bank, deposited by the petitioner at the time of granting interim custody of the DCM vehicle bearing No.AP-24-TC-31l4 in connection with First Information Report (FIR) No.514 of 2020 of Suryapet tl Town Police Station.

2. Heard Mr. Shaik Madar, leamed counsel for the petitioner, and Mr. A. Jagan, learned Govemment Pleader for Prohibition and Excise, and perused the material on record. 2

3. The barned counsel for the petitioner submitted that the petitioner is the owner of the DCM vehicle bearing registration No.AP-24-Tr3-3 114, which was seized by respondent No'4 - the Station Hor.rse Officer, Suryapet II Town Police Station, in connection rvith FIR No.5t4 of 2020 on the allegation of illegal transportation of black iaggery and alum. After completion of investigation, charge sheet was hled in C.C. No'888 of 2021 before the leamed Principal Junior Civit J udge-cum-Judicial Magistrate of First Class, Suryapet, (for short 'Trial Court'). The petitioner filed W.P. No.1 l7 of 2O2I seeking interim custody of the subject vehicle' This Court h.as disposed of the above writ petition by the order dated

06.01.2021 directing respondent No.2, therein, the Deputy Commissioner of Prohibition and Excise, Suryapet/Nalgonda District, to release the subject vehicle in favour of the petitioner pending confiscation orders and subject to the petitioner lumishing FDR for a sum of Rs.2,00,000/-. Upon which, the petitioner furnished FDR for the said amount and the subject vehicle was released. After trial, the petitioner was acquitted in C.C. No.888 of 2021 by the judgment dzted. 14.06.2022 passed by the Trial Court. J

4. The leamed counsel for the petitioner submitted that aggrieved by the confiscation order dated 01.08.2022 passed by respondent No.3, the petitioner filed W.P. No.33833 of 2022,which was disposed of by this Court by the order dated 29.10.2022, granting liberty to the petitioner to file an appeal before respondent No.2 challenging the confiscation order. Accordingly, the petitioner filed an appeal before respondent No.2, which was dismissed by the ex parte order dated 23.09.2023 confrrming the confiscation order passed by respondent No.3. It is submitted that the dates of hearing shown in the appeal are 02.09.2023 md 16.09.2023, but the counsel for the petitioner appearing before respondent No.2 did not inform him. Upon leaming about the dismissal of appeal, the petitioner submitted an application dated 31.10.2023 to respondent No.2 to consider his case sympathetically to release his vehicle and also the amount covered by the FDR.

5. The leamed counsel for the petitioner submitted that appeal was considered by respondent No.2 mechanically and disposed of the same without entering into the merits, and that the judgment l i I I l. I i 1 : t i ' I 4 relied upon by respondent No.2 are not relevant to the appeal. The petitioner has no knowledge about the alleged contraband being illegally transported in the subject vehicle. He is the registered owner of the subject vehicle and does not have any mens rea in the alleged incident of transportation ofblackjaggery and alum

6. The learned Govemment Pleader for Prohibition and Excise placed on record the counter of respondent No.3 and submitted that respondent No.2 passed the order in CR.No.2934lzl22lCPF,lEx,Dl dated 23 .09.2023 confirming the confiscation order dated

01.08.2022 passed by respondent No.3, by giving opportunity of hearing to the petitioner. Neither the petitioner nor his counsel appeared for hearing on the dates fixed by respondent No.2 for disposal of the appeal. The subject vehicle of the petitioner was seized while transporting black jaggery and alum. Petitioner is the owner of the subject vehicle and cannot plead ignorance. The acquittal in criminal proceedings does not have any bearing in the confiscation proceedings. As per Section 46D of the Tdangana Excise Act 1968, the confiscation proceedings are independent of criminal proceedings. In view of the judgment passed by this Court 5 in Ganesh Traders (Kirana and General Merchants), Dhermapuri, Karimnagar District v. District Collector, Karimnagar and othersr, whenever huge quantity of black jaggery is transported, it has to be presumed that the black jaggery is used for manufacturing illicit distilled liquor.

7. The leamed counsel for the petitioner relied upon the several judgments passed by this Court in W.P. Nos.40645 and 42044 of 2017 dated, 18.01.2018, W.P. No.2515l of 2007 dated 17.11.2011, W.P. Nos.16739 and 16389 of 2005 dated 07.12.2005 and W.P. Nos.27115 of 1997 and 3914 of 2001 dated 17.09.2002. It is submitted that the above judgments ought to have been considered by respondent No.2. Respondent No.2 passed the impugned order of dismissal confirming the conltscation order relying upon the order passed by this Court in Ganesh Traders (supra 1).

8. The leamed Govemment Pleader for Prohibition and Excise placed on record original file pertaining to CR.No.2934l2022lCPElExlDl of respondent No.2. The record ' 2oo1 scc online AP 1009 l ''l T 6 o ...: discloses that the case was initiatly posted for hearing on 02.09.2023 by respondent No.2. It appears that on 02.09.2023 the petitioner was absent, and the matter was adjoumed to 16.09.2023. Notice dated 06.09.2023 with stamp of dispatch dated 11.09.2023 intimating the date of hearing on 16.09.2023 at 11:00 A.M. was sent to the petitioner through his counsel, Mr. E. Sammaiah, through Registered Post on 13.09.2023. Though, notice dated 06.09.2023 was sent bl,Registered Post, there is no acknowledgment in proof of service of notice either on the counsel or on the petitioner personally or through p,lst. Thus, in the interest of justice, on the limited point ofnot giving opportunity ofhearing to the petitioner and in violation of principles of natural justice, the order passed by respondent No.2 in CR.No.2934l2022lCPE/Ex./D1, dated 23.09.2023, is liable to be set aside.

9. Accordingly, the writ petition is allowed setting aside the impugned order in CR.No.2934l2 022/ CPElEx,Dl dated 23 .09.2023, of respondent No.2 - the Commissioner, Prohibition and Excise, Hyderabad, and the matter is remitted to respondent No.2, who shall re-hear the appeal prefeffi, by the petitioner, taking into 7 r consideration all the judgments cited by the petitioner, by affording him an opportunity of hearing, and pass orders, as expeditiously as possible, preferably within a period of four (4) weeks from the date ofreceipt of copy of this order. There shall be nb order as to costs. As a sequel thereto, miscellaneous applications, if any, pending in the writ petition stand closed. That Rule Nisi has been made absolute as above Witness THE HON'BLETHE CHTEF JUSTTCE SUJOY PAUL FRIDAY,THE TWENW EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENW FIVE . n //TRUE COPY// SD/. T.VIJAY KUMAR UTY REGISTRAR ECTION OFFICER \ To, T.S.,Hyderabad. '

1. The Principal Secretary To Revenue (Excise) Department, Secretariat, 2. The Commissioner of prohibition and Excise, Hyderabad. Commis.s-ioner of prohibition an-ci fiJsb, Nalgonda District. ? lE P^"q.rtY 4. rne statton House Officer, Suryapet ll Town p. S, Suryaplt Town and District. !. 9n" CC to SRl. SHATK MADAR, Advocate IOPUCI 6 Two CCs to Gp FOR pROHtBtTtON EXCTS'E ,t-tisi Court for the State of _ Telan_gana at Hyderabad [OUT] 7. Two CCs to GP FOR HOME, High Court for the State of Telangana, at 8. Two CD Copies \ H,r Hyderabad [OUT] I CC TODAY ( q ) c p,E- STA e 2 ti [ii\l itl25 y ,.] HIGH COURT DATED:2810212025 ORDER WP.No.5319 of 2024 ALLOWING THE WRIT PETITION WITHOUT COSTS \ g6 ,r{^