Bhogi Nagabhushana Rao vs State Of Andhra Pradesh

D.Ramesh, J

This criminal revision case under Section 397 & 401 of Criminal Procedure Code, 1973 (for short "Cr.P.C") is filed challenging the order dated 12.11.2021 passed in Crl.M.P.No.831 of 2021 in Crime No.83 of 2021 by learned Judicial Magistrate of First Class, Prohibition and Excise Court, Srikakulam District, FAC/-Special Judicial Magistrate of First Class, Prohibition & Excise, Srikakulam, wherein the petition filed under Section 457 Cr.P.C. seeking interim custody of crime property i.e., 1.Vimal Pan Masala 50 white plastic bag each containing 52 boxes and each box cost Rs.120/- worth of Rs.3,12,000/- and 2.Raja Khaini 9 white plastic bags each bag containing 200 boxes, each box cost 100/-, worth of Rs.1,80,000/- total worth of Rs.4,92,000/- was dismissed.

Heard Smt Durga Sree Devi, learned counsel for the petitioner and learned Assistant Public Prosecutor appearing on behalf of the respondent.

Learned counsel for the petitioner submits that admittedly the offences registered under Sections 270, 273 and 188 of IPC are in connection with tobacco products and this Court has quashed proceedings, in cases where offences were registered under the above sections in connection with tobacco products. She submits that the Court below has dismissed the petition filed seeking custody of tobacco products on the sole ground of bar of jurisdiction under Section 13-E of A.P. Prohibition Act, 1995 (for short APP Act) and failed to appreciate that said Section is applicable to excisable articles and as petitioner sought interim custody of tobacco products it will not come under Excise Act and cannot be termed as prohibited product said Act, as such Magistrate has jurisdiction to entertain the said petition. Learned counsel submits that the offences as alleged under IPC are not attracted in view of the orders passed by this Court in Crl.P.Nos.5421 of 2019 and batch and this Court has granted interim custody of tobacco products in similar circumstances. Hence, she requests that the petitioner may be granted similar relief.

Learned Assistant Public Prosecutor has not disputed the ownership of the petitioner over tobacco products.

The Court below while passing the order under revision has observed that in view of Section 13-E - bar of jurisdiction, when the Deputy Commissioner Prohibition and Excise or the appellate authority is seized with the matter under the Excise Act, no court shall entertain any application in respect of liquor, any receptacle package covering, any animal, cart, vehicle or other conveyance used in carrying such liquor as far as its release or confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the appellate authority with regard to the disposal of the same shall be exclusive and jurisdiction is ousted from the Judicial Magistrate of First Class.

In the present case the petitioner has filed the petition seeking interim custody of tobacco products. Therefore, as rightly pointed out by learned counsel for the petitioner, Section 13-E is not applicable and Magistrate can entertain such application filed under Section 457 Cr.P.C seeking interim custody of tobacco products. Now it is appropriate to extract Section 457 of Cr.P.C which reads thus:

Procedure by police upon seizure of property.

(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

Thus, it is clear that as per Section 457 of Cr.P.C., if the person is known and when there is no dispute about the ownership over the seized property, the Magistrate may order such property to be delivered to him on such conditions as the Magistrate thinks fit. In the present case, mere possession or transportation of tobacco products do not constitute any offence as held by coordinate bench of this Court in Crl.P.Nos.5421 of 2019 and batch. Further tobacco products are perishable goods and they will get spoilt within short period.

In view of the above and taking into consideration the settled law as well as the fact that there is no dispute with regard to the ownership of the petitioner over tobacco products, this Court deems it appropriate to grant interim custody of tobacco products to the petitioner.

Accordingly, the criminal revision case is allowed by setting aside the order dated 12.11.2021 passed in Crl.M.P.No.831 of 2021 in Crime No.83 of 2021 by learned Judicial Magistrate of First Class, Prohibition and Excise Court, Srikakulam District, FAC/-Special Judicial Magistrate of First Class, Prohibition & Excise, Srikakulam and the possession of tobacco products seized in connection with crime No.83 of 2021 of Srikakulam, I-Town Police Station, belonging to the petitioner, is ordered to be delivered to the petitioner.

Consequently, miscellaneous applications pending, if any, shall stand closed.