S KAREEMULLA Vs. PROHIBITION AND EXCISE SUB INSPECTOR

JUDGEMENT

(1.) This batch of writ petitions, involving common questions of law and most of the facts having been admitted are heard on merits as proposed by the learned Advocates both for the petitioners and the respondents, and are being disposed of by means of this common judgment on merits.

(2.) The vehicles, said to be belonging to the petitioners, were seized by the first respondent for an alleged offence under Section 34(a) of the Andhra Pradesh Excise Act and they are said to have been before the Deputy Commissioner of Excise for initiating confiscation proceedings in accordance with law. Sec.46(2) of the A.P. Excise Act. The propriety of the seizure of the vehicles is being assailed on the grounds of illegality, arbitrariness and unjustifiable basis. The petitioners have also sought for release of the vehicles pending any prosecution for the alleged offences and the confiscation proceedings if initiated. The particulars of the vehicles seized in particular proceedings and lying before the particular authority for confiscation are as herein: <FRM>JUDGEMENT_953_ALT1_1996Html1.htm</FRM>

(3.) The contention of the learned Counsels for the petitionersin all the cases is that no offence can be made out under Section 34 (a) of the Excise Act and actually it could be an offence under the provisions 7,8 and 11 of the Andhra Pradesh Prohibition Act and that the case has been registered under Sec. 34(a) of the Excise Act having due regard to certain serious implications flowing therefrom depriving the benefit to the petitioners in regard to the release of the vehicles, quantum of punishment and other consequences. It is also contended that having registered the case under Section 34 of the Excise Act, the Excise authorities are contemplating to deprive the petitioners of the release of the vehicles pending prosecution and confiscation in view of the bar under Sec. 46-E of the Excise Act, although they have certain rights under the provisions of Prohibition Act in regard to the release of the vehicles. They have further contended that even assuming that the authorities, either under the Excise Act or the Prohibition Act, are unable to release the vehicles for any reason, this Court has power to release the vehicles under Article 226 of the Constitution of India. The learned Advocate for the petitioner in W.P. No.23213 of 1995 has contended that the learned Magistrate before whom an application was filed for release of the vehicle of the petitioner was not right in dismissing the petition, although he had powers to release it and although the petitioner had merits to get his vehicle released .As a whole, the learned Advocates for the petitioners in all the cases seek a direction to the Excise authorities - Deputy Commissioner of Excise, who is one of the respondents in all the cases to release the vehicles by imposing certainconditions which they are prepared to comply. The learned Government Pleader for Prhobition and Excise while opposing all the petitions very strongly, has contended that the Excise authorities have all the powers and discretion to register the offence under Section 34 of the Exdse Act and they cannot be compelled to register the case for any offence under the provisions of the Prohibition Act, that by virtue of the scheme of Sections 45,46 and Sections 46-A to 46-F, there is no scope for releasing the vehicles seized for an offence said to have been committed under Section 34 of the Excise Act and the whole intention of the legislation is to see that the vehide is confiscated to the Government unless the owner of the vehicle or any person interested satisfies the authorities that it cannot be confiscated. He further contends that neither under the provisions of the Criminal Procedure Code nor under the provisions of the Excise Act and Prohibition Act, the jurisdictional Magistrate or any Court can release the vehicle by way of interim custody nor pass any final order and further more, no provision is made for release of such vehicle by way of interim custody either in the provisions under the Criminal Procedure Code or the provisions of the two enactments or even by the authorities who are empowered to confiscate the vehicles. He also contends that the legislature having provided specific provisions under the Excise Act and the Prohibition Act for the seizure and confiscation of the vehicles and the petitioners having the remedy by way of appeal to the appellate authorities under the said enactments, unless they exhaust their remedy ultimately, even assuming that they will not succeed in getting the release of the vehicles by approaching the concerned authorities, this Court would not be exercising its powers under Article 226 of the Constitution for release of the vehicles.