Gella Purnachander Rao v. The Commissioner of Prohibition and Excise, Andhra PRadesh & Ors.

Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction more particularly one in natrue of Writ of Mandamus declaring the action of the 1st respondent in dismissing the appeal of the petitioenr in proceedings No. C.R. No. 289/2005/CPE/D4 dt 05-07- 2004 confirming the confiscation of the Metador Van bearing No. A.P. 16U-132, of proceedings Cr. No. 2145/P&E/2004/B3 dt 17-11-2004 of the wnd Respondent in connection with crime No. 78/2004-05 dt 24-04-2004 under Sections 7(a) R/W 8(E) of A.P. Prohibition Act, 1995 and 34 (3) of A.P. Excise Act, 1968 of 3rd respondent as arbitrary, illegal as also Art. 14, 21 and 300-A of the Constitution of India and to pass such other order or orders in the interest of Justice. the petitioenr Counsel for the Petitioner:MR.P.PRABHAKAR RAO Counsel for the Respondents: GP FOR PROHIBIT ION & EXCISE T he Court made the following Order: T HE HON'BLE SRI JUST ICE V.V.S.RAO WRIT PET IT ION No.18147 of 2005 ORDER: The petitioner impugns order dated 05.07.2005 passed by first respondent whereby and whereunder the second respondent dated 17.11.2004 confiscating metador van bearing No.AP 16 U 132 involved in excise offence was upheld. The Prohibition and Excise Inspector, Khamma, went on inspection to Seethampeta Cheruvukmatta, Chintakani Mandal and found a person preparing ID liquor near live still and a metador van was also found. The officials on search found 7 litres of ID liquor in a plastic can, 15 mud pots containing 30 liters of F.J.wash in each pot (total 450 liters), 12 empty pots for preparation of jaggery wash and metador van was found having 10 gunny bags each containing 50 kgs (total 500 kgs) of black jaggery and a bag of 50 kg alum. These were seized and Crime No.78 of 2004-2005 dated 24.04.2004 was registered under Section 7-A and 8(e) of the Andhra Pradesh Prohibition Act, 1995 (Prohibition Act, for brevity) and Section 34(e) of the Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity). Second respondent initiated action for confiscation of the van and excise material. A show cause notice was issued to the petitioner as to why his vehicle should not be confiscated. He submitted a representation stating that he is carrying on business on retail sale of jaggery and that the same does not require any licence. Considering the explanation by order dated 17.11.2004, second respondent confiscated the vehicle. The petitioner’s appeal before first respondent was dismissed which is impugned in this writ petition. Learned counsel for the petitioner submits that the petitioner was transporting black jaggery and alum with valid documents and therefore, the order of confiscation is unassailable. The submission of the petitioner cannot be accepted by two reasons. First, while confirming the order of second respondent first respondent gave following reasons for confiscation. A perusal of the records reveals that the vehicle was involved in transportation of 500 Kgs of Black Jaggery and (50) Kgs of Alum. The officers found a live still, 15 mud pots each mud pot containing 35 ltrs of F.J.wash and 7 ltrs of I.D. liquor in a plastic can near the van. The contention that the vehicle is not liable for confiscation as the black jaggery is not a excisable commodity and covered with way bills is not tenable as the evidence of presence of I.D. liquor, F.J. Wash and a live still near the vehicle clearly establishes that the jaggery is intended for the manufacture of I.D. liquor. Further as per the report of the Chemical Examiner the seized jaggery is not fit for consumption and fit for fermentation. The accused Chode Nageswara Rao who was found near the live still on enquiry stated that for the last one month he was getting the black jaggery and Alum from the appellant Gella Purna Chander Rao. The second accused Devabhakutuni Lakshmipathi also stated that he was supplying the raw material for the preparation of I.D. Liquor throough Matador Van as per the instructions of appellant Gella Purna Chander Rao. Secondly, the question raised herein whether excise officials can confiscate the black jaggery intended for manufacture of ID liquor is no more res integra. The question raised in this writ petition is covered by the judgment of a Full Bench of this Court, to which I in Ganesh Traders, Dhermapuri, was a member, Karimnagar v District Collector . After referring to various provisions of Excise Act the Full Bench laid down [1] principles of law as under. a) The provisions of the A.P.Excise Act including Sections 13(f) and 34(e) should be interpreted with reference to the objects of the Act and penal provisions dealing with excise offences should also receive broader interpretation having regard to the fact that intended to achieve the Excise Act partially the objective of Article 47 of the Constitution of India; b) Having regard to the provisions of Sections 13, 34 and 53 and 55 of the Excise Act, we must hold that if Commissioner, Collector, Police Officer or Excise Officer “has reason to believe” that black jaggery (material) is likely to be used for manufacture of ID liquor the same can be seized and persons can be arrested and facts and subject circumstances of each case including any report of the chemical examiner a charge sheet can be filed under Section 34(e) of the Excise Act. c) so warrant circumstances In a situation such as (a) and (b) above, if person/accused is entitled to approach under Section 482 of Cr.P.C. and/or Article 226 of the Constitution of India and seek quashing of proceedings provided his case come within well settled principles for quashing F.I.R., charge sheet or criminal case. However, a writ petition in such an event at the stage of investigation is not permissible when there is prima facie material to show that black jaggery is not fit for human consumption and was intended for manufacture of ID liquor, d) As held by the Supreme Court in NASU SHEIKKS case (supra) if the F.I.R shows the ingredients of offence under Section 34(e) read with Section 13(f) of the Excise Act, a person cannot be heard to say in High Court that he is carrying on business or transporting black jaggery either because he is an agriculturist or businessman. All such pleas are to be raised before appropriate criminal Court. Following the same, the writ petition is accordingly dismissed. There shall be no order as to costs. _____________ (V.V.S.RAO, J) 03rd November, 2008 GHN To 1 The Commissioner of Prohibition and Excise, Andhra PRadesh, nampally, Hyderabad 2 The Deputy Commissioner of Prohibition and Excise, Warangal Division, Warangal District 3 The Station House Officer, (Prohibition and Excise) Khammam, Khammam District 4 2CCs to GP for Prohibition and Excise 5 2CD copies Form-NIC-OGS/WP{TRT} [1] 2002 (1) ALD 210 (FB)