AKULA TIRUPATHI Vs. COMMISSIONER PROHIBITION AND EXCISE HYDERABAD

JUDGEMENT

(1.) The petitioner is owner of an Auto Rickshaw bearing No. AP-13-T-5966. On 18-10-1995, he alleged, when he was having a cup of tea at Mandamarri village, two lady passengers sat in the auto and requested him to take to Mandamarri town/colony. The auto was stopped by the fourth respondent at Mandamarri Cross Roads and a search was conducted. The fourth respondent found that the two lady passengers were carrying five cans of illicit liquor, four cans carrying 5 ltrs. each and one can carrying 10 ltrs. The illicit liquor and the auto were seized and a panchanama was conducted. An offence being Crime No.26 of 1995-96 on the file of the Judicial I Class Magistrate, Luxettipet was registered under Section 34 of the A.P. Excise Act, 1968 ('the Act'). The vehicle was produced before the Deputy Commissioner of Prohibition & Excise, the third respondent herein. The petitioner filed a writ petition being W.P.No.24388 of 1995 seeking release of the auto rickshaw. This Court, by an order dated 31-5-1995 disposed of the same directing the Deputy Commissioner to release the auto on the petitioner furnishing a bank guarantee for an amount of Rs.5,000/-. Accordingly, the vehicle was released to him on 15-4-1996. The third respondent passed an order on 30-5-1996 under Section 46(2) of the Act confiscating the auto rickshaw. Feeling aggrieved by the same, the petitioner preferred an appeal to the first respondent, who, by an order dated 13-1-1999 confirmed the order of the third respondent. As a consequence thereof, a notice of public auction dated 19-7-1999 was published in Vaartha newspaper for conducting auction of various vehicles seized by the Excise authorities including the vehicle of the petitioner. Challenging the orders of the Commissioner and the auction notice, the present writ petition is filed. Sri S.Chandraiah, learned counsel for the petitioner, submits that power inheres in the Deputy Commissioner under sub-section (6) of Section 46 of the Act to receive evidence, to summon witnesses and documents. Therefore, without recording any evidence, an order of confiscation cannot be passed. Secondly, he would contend that the criminal court is competent to order release of the crime property to the accused when the accused is acquitted. Whereas under Section 46-B of the Act, the result of the criminal proceedings either acquittal or conviction is of no consequence to the proceedings under Section 46 of the Act, and in that view of the matter, the procedure is illegal. He would also submit that the Deputy Commissioner (third respondent) ought to have waited till the disposal of the criminal case.

(2.) He, however, does not dispute that the criminal case is still pending and not ended in acquittal. He also submits that the confiscation order was passed by the original authority without issuing notice. He also placed reliance on a Division Bench judgment of this Court in Shaik Gulam Rasool v. Govt. of A.P. and also a judgment of a Full Bench in V.Narayana Rao v. State of A.P. a counter affidavit is filed denying the various averments made in the affidavit of the petitioner. It is also stated that a show cause notice was issued on 15-4-1996 by the Deputy Commissioner and though the petitioner received the same did not offer any explanation. The petitioner has not filed any reply affidavit denying the same. Therefore, the submission that show cause notice was not issued and order was passed behind his back cannot be countenanced.

(3.) The submission that an order of confiscation cannot be passed without recording evidence is also devoid of any merits. Under sub-section (2) of Section 46 of the Act, when the property seized or detained in connection with an excise offence is produced before the Deputy Commissioner, he is competent to pass an order of confiscation of the seized property whether or not prosecution is not launched. The condition precedent is satisfaction of the Deputy Commissioner to pass an order of confiscation. For arriving at such satisfaction in each and every case it is not incumbent or necessary for the Deputy Commissioner to exercise the powers under sub-section (6) of Section 46 of the Act in terms whereof it is competent for him to exercise all the powers of the civil court under the Code of Civil Procedure, 1908 in respect of receiving evidence on affidavits, summoning and enforcing attendance of any person and compelling the production of documents. In my considered view, reading all the sub-sections of Section 46 together in harmony, it would lead to only conclusion that it is not incumbent on the part of the Deputy Commissioner to exercise his powers under sub-section (6) of Section 46 of the Act unless the aggrieved person asks for such summoning of the witnesses or documents. In this case, admittedly, the petitioner has not submitted any explanation and not produced any evidence. If he has produced any documents by way of evidence, the case would have been different.