B. K. SOMASEKHARA, J.

( 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:

( 3 ) THE contention of the learned Counsels for the petitioners in 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 certain conditions which they are
prepared to comply.

The learned Government Pleader for Prohibition 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 Excise 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 vehicle 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.

( 4 ) IN view of the rival contentions as above, the following points arise for determination:
(1) Whether the vehicles seized by the Excise authorities used for the commission of an alleged
offence under Section 34 of the Excise Act or any other law for the time being in force including the
Prohibition Act can be released pending enquiry or investigation or trial either before the Court or
pending confiscation proceedings before the Excise authorities? (a) If so, by whom, the vehicle can
be released viz. , (a) by the High court under Article 226 of the Constitution of India or under section
482 Cr. P. C; (b) by the Court or the Magistrate having jurisdiction over the subject matter and to try
the offence regarding which the vehicle is seized; (c) by the authorities dealing with confiscation
proceedings either under the provisions of the Excise Act or the Prohibition Act; (2) If so, under what
provision and on what terms?

( 5 ) BOTH sides have made sufficient efforts to assist this Court in examining the above questions of
law arising out of such controversy to come to a reasonable and definite conclusion. The contention
that the Excise authorities were not justified in seizing the vehicles suspecting that an offence has
been committed under Section 34 of the Excise Act is not seriously pressed. However, the learned
counsel for the petitioners have kept open this question to be agitated if the petitioners are made
accused or tried for such an offence before the competent court and when the confiscation
proceedings are pursued. Neither it can be disputed nor the law permits such a dispute that any
vehicle, any property or article can be seized in the course of the investigation or detection of an
offence for which an accused can be tried and punished in accordance with law. Such illustrations
are to be found in Sections 100 and 102 (1) Cr. P. C. wherein the law is so clear that any property in
such a situation can be seized. Under special laws like the A. P. Excise Act the relevant provisions in
regard to the seizure are section 53 (b) read with Secs. 45 (3 ). The relevant provisions for seizure of
the vehicle or any property under the Prohibition Act are Sections 17 (1), 18,21 and 24. (with the
powers of search and seizure under Secs. 100 and 102 of Cr. P. C ). The vehicles or the properties
seized during the course of the investigation or the detection of an offence can be confiscated by the
Courts and the authorities subject to certain limitations and conditions. In procedural law, the
disposal of the property like the vehicle falls under Sections 451, 452 and 457 Cr. P. C. including the
confiscation under Section 452 Cr. P. C. In so far as special laws are concerned, the power of
confiscation of such vehicles or property alleged to have been used for commission of such an
offence, is vested in the authorities under Sections 45 and 46 of the Excise Act and under Sections 12
and 13 to some extent in regard to the disposal under Section 14 of the Prohibition Act. Therefore,
the real question is not whether the vehicle or property can be seized and confiscated, but the true
question particularly in these cases is whether such seized vehicles can be released to the persons
who are entitled to such vehicles by way of interim custody pending the prosecution before the
appropriate court and pending the confiscation proceedings before the Excise authorities. That will
depend upon the provisions already pointed out in addition to the other provisions to be examined
in detail.

( 6 ) THERE cannot be any dispute that there is no bar either in the Excise Act or the Prohibition Act
or any special law like that in regard to the powers of the court to dispose of the property finally in
accordance with Section 452 Cr. P. C. while trying the offence, if ultimately the Court is satisfied in
regard to the same. Uncontrovertedly, the offence punishable under Section 34 of the Excise Act is
triable by a jurisdictional Magistrate. (Implications of Chapter VIII ). To that extent, it cannot be
contended that the jurisdictional Magistrate cannot dispose of the property in accordance with
Sections 451,452 and 457 of Cr. P. C. even for an offence under the special statutes like Excise Act.
Therefore, we are only to find out whether there is actually any bar in the two enactments in
question, in the first place, for a Magistrate or the Court to order interim custody of the vehicle in
favour of the owner of the vehicle or in favour of any person who is entitled to the possession.

( 7 ) E contention of the learned Advocates that the authorities are entitled to register a case under
Section 34 of the Excise Act notwithstanding a similar provision in the Prohibition Act and that they
cannot be compelled to register the case only under a particular enactment or provision appears to
be sound. However, the question is whether such registration of the case would bar the jurisdiction
of the Criminal Court. It is settled law that whenever any case is registered under any provision by
any authority as in the present cases, it is the duty of the Court in the first place to examine facts
called jurisdictional facts to know under what provision the offence falls fundamentally to examine
its jurisdiction and to pass appropriate orders in accordance with law operating upon the facts of
each case. It is only thereafter the Court will be able to find out whether a particular order can be
passed or not. This rule equally applies to the authorities like Excise Officers and the Prohibition
Officers under the two enactments. The learned Advocates for the petitioners have contended that
strictly speaking the offence alleged against certain persons in all the petitions including some of the
petitioners falls within the provisions of the Prohibition act viz. , under Chapter III and in particular
Sections 7, 8 and 11 since the possession of the prohibited 1iquor is said to be with particular
accused persons. They have further contended that the provisions depended upon by the learned
government Pleader, arising out of the Excise Act as above do not apply to such situations. This
Court having examined the matter in detail finds it difficult to accept the contention of the learned
Advocates for the petitioners in this regard. Since the possession of liquor is alleged as against
certain persons, the offence falls both under Section 34 (a) of the Excise Act and also under Sections
7,8 and 11 of the Prohibition Act. In fact, the seriousness of the offence is something more when it is
alleged that some of the accused persons were transporting the liquor by means of the vehicles
which are seized. Therefore, more than one offence is alleged against certain persons arising out of
Section 34 of the Excise act and only one of them falls under Sections 7,8 and 11 of the Prohibition
Act. Only in such a situation, we have to examine whether for seizure of the vehicles suspecting that
such offence had been committed, the vehicles can be released either under Section 451 Cr. P. C. or
under any of the provisions of the Excise Act and the Prohibition Act. In so far as the power of the
Magistrate or the Court to release the vehicle under Section 451 Cr. P. C. or under any of the
provisions of the Chapter XXXIV up to Sec. 459 is concerned, there is a clear bar under Section 46-E
of the Excise Act which reads as follows: "notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (Act 2 of 1974) when the Deputy Commissioner of Excise or the appellate
authority is seized with the matter under this Act, no Court shall entertain any application in respect
of excisable articles any package, covering, receptacle, any animal, vehicle or other conveyance used
in carrying such articles as far as its release, confiscation is concerned and the jurisdiction of the
Deputy Commissioner of Excise or the appellate authority with regard to the disposal of the same
shall be exclusive. " (emphasis added)

( 8 ) THE learned Government Pleader is totally right in contending that in so far as the powers of the
Magistrate to provide interim custody under Section 451 cr. P. C. is concerned, Section 46-E of the
Excise Act imposes an absolute embargo or bar. But the learned Advocates for the petitioners are
right in contending that there is no bar in any of the provisions of the Prohibition Act in regard to
providing interim custody by a Court and in particular a jurisdictional magistrate under Section 451
of the Cr. P. C. On the other hand, they contend that impliedly having due regard to the implications
of Sections 12 to 14 of the prohibition Act, it is the Court or the Magistrate which is firstly entitled to
pass an order of interim custody of the vehicle or any property for an offence regarding which the
vehicle is seized. In this regard, a latest decision of this court in Jitendra Palnitker vs. State of Andhra
Pradesh has been depended upon. This decision supports such a contention. However, certain
observations are made in that decision in interpreting Sections 12 to 14 of the Prohibition Act and
some other provisions. Having due regard to the seriousness of the questions of law involved in
these cases and since some other implications are not considered in detail in this decision, mis Court
is obliged to examine all the questions relating to such a view. However, the learned Government
Pleader is not for a moment presenting any decision or precedent or a view contrary to the one
expressed in the decision supra.

( 9 ) BEFORE adverting to the powers of the Magistrate or the Court under the provisions of the
Prohibition Act to pass an order for the interim custody of the properties like vehicles seized for the
commission of the offence, it may be necessary to examine the true implications of law in regard to
such a question. Only in that background, the powers of any authority under a special law can be
examined to deal with such a situation. It is rudimental that the Courts or the final authorities, in the
adjudicatory process of administration of Criminal justice particularly in the light of Article 21 of the
Constitution of India and generally the Criminal Courts by virtue of Section 4 of the Criminal
Procedure code, should try the offence. Section 4 of the Code of Criminal Procedure reads as
follows: "section 4: Trial of offences under the Indian Penal Code and other laws:- (1) All offences
under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise
dealt with according to the provisions hereinafter contained. (2) All offences under any other law
shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions,
but subject to any enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such offences. " (emphasis added) the
simple meaning of this provision is that all the offences are to be investigated, enquired into or tried
in accordance with the provisions of the code of Criminal Procedure particularly the offences under
the Indian Penal code and specially by virtue of sub-clause (2) applicable to the offences in other
enactments also. However, sub-clause (2) is so emphatic that mis is subject to the provisions having
been made in any other special law. The doctrine of exclusion of jurisdiction of the regular Courts to
deal with a matter and to pass appropriate orders in such criminal proceedings is founded in the
maxim 'generalia Specialibus Non Derogant' (special law overrides general law), In other words,
jurisdiction over the Courts to deal with the matter and pass orders in accordance with the
provisions of the Code of Criminal Procedure should be presumed and to hold the contrary, there
must be a specific bar in any special law in regard to certain matters under the Criminal Procedure
Code and by necessary implication by making such similar provisions to deal with a matter in the
special enactments. Such a view has been concluded by the Supreme court in Bhim Sen vs. State of
U. P. In other words, unless the provisions either in the Excise Act or Prohibition Act are specific
barring the jurisdiction of the court to provide for the interim custody of the vehicle seized in the
commission of such offence, Section 4 of the Cr. P. C. presumes such a jurisdiction of the courts.
However, as already pointed out, in so far as the offence under Section 34 or any other provision of
the Excise Act is concerned, the jurisdiction of the courts are barred specifically by virtue of Section
46-E of the Excise Act. But there is no such specific bar under any of the provisions of the Prohibition
Act. In other words, there is no similar provision like Section 46-E of the Excise Act in the Prohibition
Act. Therefore, normally speaking, the jurisdiction of a magistrate or a Court to pass an order under
Section 451 Cr. P. C. to release the vehicle by way of interim custody pending investigation, trial or
enquiry cannot be taken to have been restricted or barred under the Prohibition Act. The question is
whether it has been impliedly barred. In Jitendra Palnitker's case (supra), it has been pointed out
that there is a specific provision under Sec. 13 of the Prohibition Act empowering a Magistrate to
pass the final order of disposal of property or vehicle seized and as a consequence of the said
interpretation, the vehicle so seized can be disposed of by way of interim custody: There is no
reason to take any other view than what is expressed in the decision cited supra. Apart from that,
there are few more reasons in support of such a view. Section 13 of the Prohibition Act reads as
follows: "section 13:- Confiscation how ordered:- (1) When the offender is convicted or when the
person charged with an offence against this Act is acquitted, but the Court decides that anything is
liable to confiscation, such confiscation may be ordered by the Court. (2) When an offence against
this Act has been committed but the offender is not known, or cannot be found, or when any thing
liable to confiscation under this Act and not in the possession of any person cannot be satisfactorily
accounted for, the case shall be enquired into and determined by the Collector or other Prohibition
Officer in charge of the district or any other officer authorised by the State Government in that
behalf, who may order such confiscation: provided that no such order shall be made until the
expiration of fifteen days from the date of seizing the things intended to be confiscated or without
hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in
support of their claims. " (emphasis added ).

( 10 ) 10. Patently, the power is given to a Magistrate or the Court to pass an order of final disposal
of the vehicle and other property seized for the alleged offence under the Prohibition Act by virtue
of sub-clause (1 ). That would be in a case where an accused is going to be convicted or acquitted.
This provision is almost similar to Sec. 452 of Cr. P. C Sub-clauses (1) and (2) of Section 13 empowers
both the Magistrate and also the Excise Officer to pass an order of disposal of property in a
particular situation where the name of the accused is not known, and where the possession is not
accounted for etc. and this provision is almost similar to Sec. 457 Cr. P. C. It is true that the
intendment of Section 13 of the prohibition Act is in regard to final disposal of the vehicles or the
property seized which should be more like an order under Sec. 452 Cr. P. C. But if we read section 14
of the Prohibition Act, it is apparent that either a Magistrate or prohibition Officer can pass an order
with regard to the properties seized by the excise authorities, although with a luxury, Section 14 of
the Prohibition Act requires repetition; "sec. 14. Police to take charge of Articles seized:- all officers
in charge of police stations shall take charge of and keep in safe custody pending the orders of a
Magistrate or of a Prohibition Officer, all articles seized under this Act which may be delivered to
mem; and shall ' allow any Prohibition Officer who may accompany such articles to the police
station, or who may be deputed for the purpose by his superior officer, to affix his seal to such
articles and to take samples from mem. All samples so taken shall also be sealed with the seal of the
officer incharge of the police station. "the provision is so dear that the officers in-charge of the police
station are entitled to get the seized properties to their possession subject to the orders of the
Magistrate or the Prohibition Officer. This should be almost like an order to be passed under Section
451 Cr. P. C. Therefore, if we read Section 13 in the light of Section 14 of the Prohibition Act, it is
possible to interpret that the law makers have left the powers to the Magistrate to pass an interim
order similar to the one which can be passed under Section 451 of the Cr. P. C. It is true that such a
power is also given to the Prohibition Officer. Till a final expression is given in this regard, it can be
stated that the powers of both the Magistrate and the prohibition Officer to pass such an interim
order is concurrent. Since there is no specific provision in the Prohibition Act barring the jurisdiction
of the Court or the Magistrate to pass an order in regard to the release of the vehicle or property
seized for an offence committed under the Prohibition Act read with the provisions stated above,
this Court is convinced that there is no bar for a Court or Magistrate to pass an order releasing the
vehicle.

( 11 ) THE learned Advocates for the petitioners have contended that in view of Section 31 of the
Prohibition Act, the power of the Court or the Magistrate to release the vehicle in such a situation
provided in this enactment cannot be taken to have been affected by virtue of Section 46-E of the
Excise Act. It is true that Section 31 of the Prohibition Act makes the terms in a clear manner that
'save as otherwise provided, the provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in the provisions of the Andhra Pradesh Excise Act, 1968 and the
rules made thereunder. To that extent, the bar under Section 46-E of the Excise Act will not affect
the powers of the Magistrate or the authorities under the provisions stated above in the prohibition
Act. In other words, the effect of Sections 13 and 14 of the prohibition Act supra over-rides the bar
under Section 46-E of the Excise Act in regard to the release of the vehicle seized for an offence. But
the learned government Pleader submits that that may be only in a case where the offence falls only
under any of the provisions of the Prohibition Act. There appears to be an infirmity in such a
contention. If an offence does not fall in any of the provisions of the Prohibition Act, then Section 31
of the Prohibition Act cannot come into force at all. In such a situation, Section 46-E of the Excise Act
would be an absolute bar for any Court to dispose of any application relating to the release of a
vehicle or any property seized for an offence under the Act. The only difficulty arises if an offence
falls under the provisions of both the Acts. Here is a serious question to be answered whether the
petitioners who are entitled to the benefit of release of the vehicle by virtue of Sections 13,14 and
31 of the prohibition Act can be deprived of the same just because the offence also falls under
Section 34 of the Excise Act and just because the authorities thought of registering the case for the
offence under the said Acf. The law appears to be that where there is more than one law a law
providing for a relief or benefit to the accused or a person who is an accused or a person who is
accused of an offence in any manner, such a benefit cannot be deprived just because the same
benefit is taken away by some other statute. That may be possible when there is a conflict between
genera! and special law. If two special laws provide provisions - one non-beneficial and other
beneficial - the latter law providing benefit should bt operated as the settled law appears to be that
the criminal law should be interpreted so as to render benefit to an accused person. Section 31 of
prohibition Act should be meaning that. In that interpretation of law, it must be concluded with
certainty that in a case as the present one, when the offence falls both under Section 34 of the
Excise Act and also any of the provisions of the prohibition Act, the benefits conferred under the
latter Act should be extended to such accused persons. It may be a question whether such a benefit
could go to the persons who are not accused persons. Whether a person is going to be an accused or
not shall be dependant upon the facts and circumstances of each case. In the present cases, some of
the petitioners claim to be the owners of the property or vehicles and some of them are accused of
the offence and ultimately it may transpire that, if established, the owners may themselves turn to
be the accused persons and the contrary also true. In such situations, it is difficult to accept the
contention as above. Therefore, it must be concluded that a magistrate or a Court is empowered to
pass an order of release of the vehicle or any property seized for an offence committed under the
provisions of the prohibition Act although similar offence could fall within one or any of the
provisions of the Excise Act in the exercise of the powers under Section 451 cr. P. C.

( 12 ) THE learned Government Pleader contends that the order of confiscation of the property
seized under the provisions of the Prohibition Act is subject to the powers of the Excise Authorities
under Section 46 of the Excise Act by virtue of Section 12 and therefore, in such a situation, the
petitioners cannot be given the benefit of such an interpretation of a Criminal statute. It is true that
the result of confiscation under Section 12 of the Prohibition Act is subject to the powers of the
Excise Officers under Section 46 of the Excise Act. Again that should be read in the context of Section
31 of the Prohibition Act which has got over-riding effect on the provisions of the Excise Act. Again
intermingling with the legal effect of the provisions of Section 46-E of the Excise Act and Sees. 12 and
13 of the prohibition Act, the benefit conferred on such persons by virtue of a similar law cannot be
deprived and it should be taken as having over-riding effect on such a provision like Section 46-E of
the Excise Act. It is made very dear that if any offence is registered under Section 34 or any other
provision of the Excise Act and if it does not fall within any of the provisions of the Prohibition Act,
no such benefit is conferred in regard to the bar of jurisdiction.

( 13 ) ONE more serious question that poses itself for consideration is whether the Magistrate or the
Court alone can be said to be entrusted with the powers to release the vehicle by way of interim
custody under Section 451 Cr. P. C. when concurrent and equal powers are conferred on the
Prohibition Officer by virtue of Sections 13 (2) and 14 of the Prohibition Act. On a reading of the two
provisions carefully, this Court feels that the powers of the Magistrate or the court should be taken
to be superior and primary as against the powers of the other Officers. It appears that such a power
is conferred on other officers like prohibition Officers to deal with the matter when the Court fails to
pass an order or when it is not in a position to pass such an order for any reason. Such circumstances
are many and innumerable. It is difficult to record the illustrations because as between the functions
of the Courts and the authorities there is a division and the latter cannot be so hazardous or
magnitudable when compared to the former in regard to release of properties. In that situation, it is
possible that the Courts or the Magistrate may not pass such orders and in such an event, it is
permissible for Excise Officers or Prohibition Officers to pass such orders. But it should be made dear
that if a Magistrate passes such an order, it cannot be varied or interfered by an Excise Officer or
Prohibition Officer to the detriment of the interests of the persons interested in such a situation. But
the latter may not be true, however subject to appeals etc. But still the propriety and the policy
require that the persons who are interested in getting a relief should approach one of the forums to
avoid conflict of decisions.

( 14 ) THEN comes the question whether notwithstanding any of the ramifications or the implications
and the consequences of the provisions of law as above, whether the Court or any authority would
be justified or compelled to pass an order for disposal of property like a vehicle seized in the course
of detection of an offence or investigation. Sections 451 and 457 and some other provisions of the
Code of Criminal Procedure and similar provisions of any other enactment and in particular the
Excise Act should be taken to mean that particularly where a property so seized is perishable or was
in a state of decay, should be either disposed of or interim custody should be provided pending
enquiry, investigation or trial. Otherwise, it would be a loss not only to the parties who are entitled
to it, but also to the State ultimately in case the property has to be confiscated in money value.
Judged in any manner, the preservation of the seized property would be beneficial to one and all.
Then a simple question crops up whether a vehicle so seized would be perishable or decayed in lapse
of time. In that sense, it may be argued that a vehicle is a property which normally will not decay or
perish. Such an argument may not be always acceptable. Although an automobile like a vehicle
moves it would be classified as a thing having life. Even the non-utility or non-user would deteriorate
an automobile or a vehicle. Particularly the vehicle seized in the course of the detection of an
offence or investigation is in the knowledgeable experience are known to be allowed to rot in front
of police stations and the offices of the Excise department due to the pendency of the cases which
are not being disposed of with, all speedy despatch and expeditious approach of the matter. It
cannot be forgotten that any property let alone the vehicle is a national asset. It is for the benefit of
the members of the community at large, let alone to the State particularly in a country like India
where communication is a great problem, the loss or absence of vehicles would affect normal
movement of the people, commodities medicines and the consumable articles and any other useful
and utilatable articles as a whole. Therefore, if a vehicle is allowed to be put to non-user or allowed
to be decayed in the process of time, it would become a junk or a scrap of iron or any other metal or
any synthetic material as is being done in modern days making it almost a useless material or a
valueless one or losing its real worth. In that situation, if we apply the real implications of the
properties which are perishable or decayed, the vehicles may not be allowed to be detained. In that
view of the matter also, such orders of interim disposal should be passed by the Courts or particular
authorities as normal rule. The question cannot be concluded in regard to the vehicle in view of the
authoritative pronouncement of the Supreme Court in Smt. Basava Kom Dyamogouda Patil vs. State
of Mysore and another which would guide us not only in this case but also for all such cases to come
before the Courts. To read; "where the property which has been the subject-matter of an offence is
seized by the police it ought not to be retained in the custody of the Court or of the police for any
time longer than what is absolutely necessary. As the seizure of the property by the police amounts
to a clear entrustment of property to a Government servant, the idea is that the property should be
restored to the original owner after the necessity to retain it ceases. It is manifest that there may be
two stages when the property may be returned during any inquiry or trial. This may particularly be
necessary where the property concerned is subject to speedy or natural decay. There may be other
compelling reasons also which may justify the disposal of the property to the owner or otherwise in
the interest of justice. In a criminal case, the police always acts under the direct control of the court
and has to take orders from it at every stage of an inquiry or trial. In She broad sense, therefore, the
Court exercises an overall control on the actions of the police officers in every case where it has
taken cognizance. "it must be emphasised at this stage that the release of the seized properties by
the Magistrates or the authorities would be a rule and the rejection may be an exception, however,
by imposing certain conditions for production of that vehicle either for identification or for security,
which can be enforced by Courts, the vehicle can be released. Unless for extraordinary
circumstances, for reasons to be recorded in writing, no property seized in the course of
investigation or detection of crime can be rejected to be released unless such release is barred under
any law as is in the case of Section 46-E of the Act. But Section 46-E of excise Act should have been
meant to empower the authority who can confiscate the seized properties under Section 45 of the
Excise Act is bound to arrange for internal custody like Sections 451 and 457 of Cr. P. C.

( 15 ) THE learned Advocates for the petitioners have urged seriously that not withstanding the
interpretation of law as above and the provisions like Sec. 451 or 457 Cr. P. C. and other similar
sections in special enactments like the Excise act or the Prohibition Act, this Court would be justified
in passing an order of interim custody by way of an interim order by exercising its powers under
article 226 of the Constitution of India. In support of such a contention, the pronouncement of a
Division Bench of this Court in B. Venu Naidu vs. Joint collector is depended upon by the learned
Advocates for the petitioners. While dealing with the question, this Court has categorically and
affirmatively held that the powers of this Court to release the vehicles under Article 226 of the
constitution of India cannot be questioned and it has been done in so many matters. But if we read
the observations of this Court in paragraph 8, such a power to be exercised depends upon the facts
and circumstances of the case and to read thus:"7. It would be seen that the Supreme Court was
dealing with a petition under Article 32 of the Constitution and in that context, it observed as quoted
above. The scope of a petition under Article 32 of the Constitution is restricted to an enquiry as to
whether a Fundamental Right has been violated, and any restraint which this Court imposes upon
itself in having regard to the facts and circumstances of the case. The Supreme Court, in our opinion
did not intend to lay down the limits of jurisdiction of the High court in this behalf, nor to defined
the scope of any order that may be made under Article 226 of the Constitution in a case such as this.
Any such law cannot limit the scope of the orders which the High Court may make under article 226
of the Constitution. These statutes only regulate the jurisdiction. Power and procedure of the
authorities constituted under the act and these provisions may only guide the High Court in making
interim orders in such case pending disposal of writ petitions: but they cannot restrict the power or
authority or jurisdiction of the High Court under Article 226 of the Constitution to pass appropriate
orders having regard to the circumstances of each case. We, are, therefore, unable to agree with the
contention of the learned Government Pleader that the high Court is not competent to order release
of the goods in favour of the appellant merely because the proceedings under Section 6-A of the
essential Commodities Act are pending. This Court has directed release of goods in a number of
cases and that authority has never been seriously disputed on the ground that the High Court has no
jurisdiction to make such orders. These orders were questioned on the ground that a particular case
was not a fit case for ordering release of the goods. "

( 16 ) IT is true that the powers of this Court under Article 226 of the constitution of India are
unfettered to issue any writ contemplated therein but also to issue any direction and pass orders to
achieve the purpose of the constitution of India and to meet the ends of justice. As is pointed out in
the case supra, it equally applies to the powers under Article 32 of the Constitution of India. But the
question is, whether this Court should or will exercise such power in all the cases when other Courts
and authorities are vested with such powers and take over all such duties unless in a particular case
or situation where the powers are warranted to be exercised. This Court after examining the facts
and circumstances of these cases feels that there are no reasons as to exercise the powers under
Article 226 of the Constitution of India even when the parties have not only alternative remedies but
also effective remedies. At this stage, it must be pointed out that the concept of taking justice to the
doors of the citizens who are the people of India,. e. , Bharat under the preamble of the
Constitution, would be consistent with the exercise of powers by the Courts and authorities which
are vested in them than approaching the High Court all the time under article 226 of the
Constitution. That would not only put the litigant public and the advocates to difficulties particularly
when they come from far off places as can be judicially noticed that in Andhra Pradesh the last
district Like srikakulam must be beyond 700 to 800 K. Ms. from Hyderabad. To mink of a poor litigant
to get a tiny vehicle like TVS or Luna released by the High Court, the law makers would not have
intended to compel such persons to approach only under Article 226 of the Constitution, while other
laws provide for such reliefs. Para 5 of B. Venu Naidu's case (supra) also supports such a view.

( 17 ) THEREFORE, this Court with all appreciation, considerations and sympathy feels that in cases
like this, the parties should approach the Courts and such authorities first, the appellate authorities
next if provided under the statutes, and only thereafter approach the High Court under Article 226 of
the constitution, if they get no remedy at the hands of such Courts and authorities and unless such
situations or circumstances under law debar them from espousing their causes before such forums.

( 18 ) AS a consequence of the discussion supra, this Court holds that the petitioners are entitled to
approach the concerned Magistrate within whose jurisdiction the offence is said to have been
committed or the vehicle is said to have been seized by making an application under Section 451 Cr.
P. C. for release of the vehicle, which will be disposed of in accordance with law. It is also made very
clear that in case they fail to get such a remedy, they should exhaust further remedy by way of
appeal provided under the Criminal Procedure Code to the superior Courts like the Sessions Court
etc. It is also made very dear that having due regard to the interpretation stated above, the
petitioners are also entitled to approach the Excise authorities for such a remedy for interim custody
of the vehicle, if the magistrates in Criminal Courts are unable to pass any order for any reason,
however the rule shall be to approach the Courts first. However, it is made very clear that they
cannot have both the remedies and if they seek for one remedy they will be debarred from seeking
another remedy.

( 19 ) THUS, all the writ petitions succeed in a sense that the petitioners are entitled to get their
vehicles released, however, by making applications either before the Magistrates having jurisdiction
or before the appropriate authorities in accordance with law as detailed above. Having come across
with such matters of release of vehicles or properties, this Court feels that each case has to be
disposed of on the facts and circumstances of each case in regard to the conditions to be imposed
like production of the vehicle, the undertaking not to alienate the vehicle till further orders and by
fixing the value which is appropriate, so that ultimately the State should not lose the value as such,
in case the vehicle is not produced. Therefore, it is emphasized that when such applications are
made, the Courts or the authorities should hold a formal or simple enquiry to know the value of the
vehicle either from the panchanams or from all the documents produced by the parties or by the
State or from the totality of the material produced before them and by taking judicial notice of the
facts in accordance with law. But at the same time it must be emphasised that while fixing such
value, the Courts or the authorities should not be too harsh or impracticable, so that the ends of
justice are not frustrated.

( 20 ) THEREFORE, it is directed that the petitioners shall make applications before the concerned
Judicial Magistrates or the authorities concerned for release of the vehicles subject to the orders to
be passed by such Courts or the authorities in accordance with law. However, if such applications are
made, they shall be disposed of within 15 days from the date of the application, after hearing any
Government Pleader or the Public Prosecutors who represent the state also.

( 21 ) IN so far as W. P. No. 23213 of 1995, while allowing the writ petition, the matter is remitted
back to the III Metropolitan Magistrate, Vijayawada for disposal according to law in the light of the
observations made above.

( 22 ) IN W. P. No. 23349 of 1995 it is submitted that the application for release of the vehicle is
pending before the Deputy Commissioner for Excise since 19-10-1995. The matter is remitted back
to the said authority for disposal according to law in the light of the observations made above within
one week from the date of receipt of a copy of this order after giving opportunity to both the
learned counsel.

( 23 ) IN the result, all the writ petitions are allowed. In the circumstances, there shall be no order as
to costs.

( 24 ) THE operative portion of this order shall be communicated to the Sessions judges of all the
District Courts and the Commissioner of Excise immediately to suitably instruct the concerned Courts
and the authorities as the case may be within their jurisdiction to deal with the matter in accordance
with the directions contained as above.
Though Section 46-E of the Andhra Pradesh Excise Act states that there is a
bar of jurisdiction to entertain any application pertaining to release of the
vehicle, Section 31 of the Andhra Pradesh Prohibition Act, 1995 has an
overriding effect over the A.P. Excise Act. In the light of the said provision of
law, it shall be held that the Magistrate is empowered to pass orders under
Section 451 Cr.P.C. and release the vehicle by way of interim custody.

posted 12 Mar 2011, 20:49 by advocatemmmohan Mandagaddi murali mohan

 though Section 46-E of the Andhra Pradesh Excise Act states that
there is a bar of jurisdiction to entertain any application pertaining to
release of the vehicle, Section 31 of the Andhra Pradesh Prohibition Act,
1995 has an overriding effect over the A.P. Excise Act. In the light of the
said provision of law, it shall be held that the Magistrate is empowered to
pass orders under Section 451 Cr.P.C. and release the vehicle by way of
interim custody.
This Criminal Revision Case is allowed, at the stage of admission,
with a direction to the Judicial First Class Magistrate, Thungathurthy, to
release TVS motor cycle bearing [Link]-36-T/R 7858 seized in Crime No.94
of 2010 of Noothankal Police Station, on condition of the petitioner
furnishing a security in a sum of Rs.25,000/- (Rupees twenty five thousand
only) with two sureties each for the like sum to the satisfaction of Judicial
First Class Magistrate, Thungathurthy. Further, the petitioner shall give
an undertaking that he shall not alienate the said vehicle and shall produce
the same as and when required in connection with the said crime.

THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA

CRIMINAL REVISION CASE No.132 of 2011
JUDGMENT:
The petitioner who was unsuccessful in getting the TVS motor cycle
bearing [Link]-36-T/R 7858 released in [Link].195 of 2010 in Crime
No.94 of 2010 of Noothankal Police Station, filed under Section 457 Cr.P.C.,
before the Judicial First Class Magistrate, Thungathurthy, filed the present
Criminal Revision Case.
Apparently, the vehicle was seized in connection with a case registered
under Section 8 (b) of A.P. Prohibition Act and when an application was filed
under section 457 Cr.P.C., the learned Magistrate passed an order stating that
the said Court is not competent to return the said vehicle and accordingly,
dismissed the application.
Having regard to the judgments passed by this Court in [Link]
AND OTHERS V. STATE OF ANDHRA PRADESH [1], JITENDRA
PALNITKER V. STATE OF ANDHRA PRADESH [2] and SUNDERBHAI
AMBALAL DESAI V. STATE OF GUJARAT [3], though Section 46-E of the
Andhra Pradesh Excise Act states that there is a bar of jurisdiction to entertain
any application pertaining to release of the vehicle, Section 31 of the Andhra
Pradesh Prohibition Act, 1995 has an overriding effect over the A.P. Excise Act.
In the light of the said provision of law, it shall be held that the Magistrate is
empowered to pass orders under Section 451 Cr.P.C. and release the vehicle by
way of interim custody.
This Criminal Revision Case is allowed, at the stage of admission, with a
direction to the Judicial First Class Magistrate, Thungathurthy, to release TVS
motor cycle bearing [Link]-36-T/R 7858 seized in Crime No.94 of 2010 of
Noothankal Police Station, on condition of the petitioner furnishing a security in
a sum of Rs.25,000/- (Rupees twenty five thousand only) with two sureties each
for the like sum to the satisfaction of Judicial First Class Magistrate,
Thungathurthy. Further, the petitioner shall give an undertaking that he shall not
alienate the said vehicle and shall produce the same as and when required in
connection with the said crime.
 
___________________________________
JUSTICE GOPALA KRISHNA TAMADA
 
28th January 2011
DR
 

[1]
 1996(1) ALT Crl.130
[2]
 1995(3) ald 80
[3]
 (2002) 10 scc 283