Partly allowed

Ramesh Kumar v. The State of A.P. rep. by Secretary, Excise Department

Telangana HC20 Mar 2014WP/4569/2008

Case brief

AI extract

What is this about?

This writ petition challenged the confiscation of a vehicle used for transporting contraband. The High Court set aside an order passed without recording Panchas' evidence and remanded it to the appellate respondent for a fresh disposal.

What did the court decide?

The order of the 2nd respondent is set aside and the matter is remanded to the 2nd respondent for a fresh hearing within 3 months.

Ramesh Kumar Vs The State of A.P… — Constitutional and Fundamental Rights | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO

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W.P.NO.4569 OF 2008

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ORDER:-

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Heard the learned counsel for the petitioner and the learned Assistant Government Pleader for the respondents.

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02. This writ petition was filed challenging the order passed by the 3^rd respondent on 12-01-2007 in Cr.No.1196/06/P&E/A3, dated 12-012007 and confirmed by the 2^nd respondent in Cr.No.2233/07/CPE/D4, dated 11-01-2008.

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03. The petitioner’s case is that he is running a Bakery at Municipal No.7-2-53/23, Gunj Road, Adilabad. Apart from running the business of Bakery, he also undertakes supply of biscuits, peppermints, chocolates etc., to the nearby villages and rural localities. He purchased a Maruthi Van bearing No.AP01 G 625 after obtaining the loan from the Andhra Bank, Adilabad. He appointed one driver since he has to concentrate on the Bakery business. At the request of his friends, he lent the Van. He went to Nagpur on 01-09-2006 and returned to Adilabad on 02-09-2006, but the driver of the vehicle did not report back to duty on 02-09-2006 and he retained the vehicle with him. He came to know that during the intervening night of 2/3-09-2006, at the request of some strangers, the driver of the Van agreed to transport certain goods and during the raid by the officials of the respondents, it came to light that some Desi Dar was being transported in the Van and the same was seized. A Cr.No.113 of 2006 was registered against the persons. The petitioner states that he does not know the persons who were involved in the said offence. The 3^rd respondent took up the enquiry and passed the order on 20-01-2007 confiscating the vehicle. Against the said order, he preferred an appeal

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before the 2^nd respondent and the 2^nd respondent mechanically confirmed the order of the 3^rd respondent. 04. The respondents filed a counter-affidavit stating that on 03-092006 at about 5.30 hours on reliable information the police party laid ambush at Mahalakshmiwada Cross Road, Adilabad for catching the Desi Dar liquor. While checking the vehicles, one motor bike was stopped and one Maruthi Van bearing No.AP01G 6625 came in a hurry and tried to escape from the place immediately. The party chased them and caught hold of the Van and checked the vehicle. They found 336 Desi Dar bottle each 180 ml. The driver of the Van confessed that one Akbar has engaged the Van to smuggle the Desi Dar from Shankar Goud of Bori Village of Maharastra State and shifted the Desi Dar by Van and transporting to Adilabad with escort on motor bike. One cell phone was recovered from them. The Officers seized the vehicle with contraband under the cover of panchanama before the mediators and arrested the accused person. A Cr.No.113 of 2006 dated 03-09-2006 was registered under Section 34(a) of the A.P. Excise Act, 1968 (for short “the Act”) against the accused. A show cause notice was issued to the owner of the vehicle under Section 46(a) of the Act and the same was served on the owner of the vehicle on 12-02-2006 but the owner did not file any written reply to the show cause notice and did not appear before the 3^rd respondent. Accordingly, the 3^rd respondent ordered for confiscation of the vehicle along with contraband, by order dated 12-01-2007. Challenging the same, the petitioner preferred an appeal before the 2^nd respondent and the same was confirmed. 05. The learned counsel for the petitioner states that before the Criminal Court, the Panchas did not support the version of the

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prosecution and this court in a decision in Veeramallu Narasimha Rao Vs. Commissioner of Prohibition and Excise, A.P. and others (^[1] ) held that even in the absence of explanation for the show cause notice, the Deputy Commissioner is under obligation to examine the matter with reference to record and to record evidence of Panchas. 06. In the instant case, the evidence of Panchas appears to have not been recorded though it was stated that the vehicle was seized in the presence of mediators. Merely the provisions of law were extracted and the order of confiscation was passed on 12.01.2007 by the 3^rd respondent. The counsel for the petitioner further submits that though a counsel was engaged before the 3^rd respondent, the counsel did not appear before the 3^rd respondent and submit the case. In those circumstances, the petitioner filed an appeal before the 2^nd respondent and the 2^nd respondent merely followed the order of the 3^rd respondent and confirmed the same in the appeal. The appellate order was passed by the 2^nd respondent stating that the Deputy Commissioner of Prohibition and Excise, Karimnagar had followed the procedure contemplated under the Act and the contention of the appellant that the owner has no knowledge about the transportation is not tenable due to the reasons that the vicarious liability stands on the owner of the vehicle for the acts of the driver. This is a mere opinion without any basis. Beyond the above statement, no reason was recorded while confirming the order of the 3^rd respondent by the 2^nd respondent.

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07. In the circumstances, the order passed by the 2^nd respondent on 11-01-2008 is set aside and the matter is remanded to the 2^nd respondent for considering the appeal afresh in accordance

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with law and dispose of the same after giving due opportunity to the petitioner/appellant within a period of three (3) months from the date of receipt of a copy of this order.

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Accordingly, the writ petition is allowed. No costs. Miscellaneous Petitions pending, if any, shall stand closed.

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_________________________ A.RAMALINGESWARA RAO,J 20-03-2014 TSNR

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[1] 2007(5) ALD 760

Ramesh Kumar v. The State of A.P. rep. by Secretary, Excise Department

Case brief

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Ramesh Kumar v. The State of A.P. rep. by Secretary, Excise Department

Case brief

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