P SWARUPA AND Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Crl.M.P. No. 3193/95 is filed for release of the lorry bearing No. A.P. 16 U 2297, which was seized by the second respondent as it was found to be carrying '11' bottles of whisky, Crl.M.P. No. 3249/95 is filled for release of the Ambassador car bearing No. TMT 7962, which was seized by the first respondent as it was found to be carrying '70' litres of arrack in plastic containers.

(2.) These two petitions were heard by a learned single Judge, P. Ramakrishnam Raju, J. The learned counsel for the petitioners relying on the order dated 27-5-1995 in Crl.M.P. No. 2529 of 1995 made by Ramesh Madhav Bapat, J., contended before the learned single Judge that the Magistrate has got jurisdiction to order release of the vehicles in favour of the petitioners by way of interim custody. On the other hand, the learned Public Prosecutor placing reliance on a decision of the Supreme Court in Divisional Forest Officer v. G. V. Sudhkar Rao, AIR 1986 SC 328 : (1986 Cri LJ 357) contended that the provision under Section 452 of the Code of Criminal Procedure is general in nature and it has to yield to any special provision made in a statute with regard to forfeiture and confiscation of any property. He also contended that the bar imposed under Section 46E of the A.P. Excise Act, 1968 on the jurisdiction of the Magistrate with regard to disposal of case property, including vehicles, when the matter is seized by the Deputy Commissioner of Excise or the Appellate authority, is reserved even after the enactment of the A.P. Prohibition Act, 1995. The learned single Judge having differed with the view taken in Crl.M.P. No. 2529 of 1995, referred the matter to a Division Bench.

(3.) The learned counsel for the petitioners contended that crimes were registered against the petitioners under the A.P. Prohibition Act, 1995 and also under the A.P. Excise Act, 1968, that under Section 451 of Cr.P.C., the Magistrate has got jurisdiction to order release of the vehicles in favour of the petitioners by way of interim custody and that when the crime is registered under both the Acts, the bar imposed under section 46E of the A.P. Excise Act will have no operation as the A.P. Prohibition Act has the overriding effect over other Acts. He relied in this behalf upon the order in Crl.M.P. No. 2529 of 1995 made by Ramesh Madhav Bapat, J. and stated that the decision of the Supreme Court in Divisional Forest Officer's case (1986 Cri LJ 357)(supra) is not applicable to the facts of the present case. On the other hand, the learned Public Prosecutor has contended that the Magistrate has got no jurisdiction to pass orders for release of the vehicles in favour of the petitioners.