Sec. 52 of the A.P. Excise Act, 1968 and Rule 2 (3) of A.P. Excise (Powers and Duties) Rules, 1972 - Head constable seized the stock of licensed complaint shop - Only above the rank of circle inspector authorised under Act to seized and enter the shop - Writ petition allowed and whole proceedings are quashed = Kundarapu Krishna, S/o. Yadagiri, Aged about 25 years, Business, R/o.Chintalpally village, Sangem Mandal,Warangal District, A-4 licensee of M/s. Sri Sai Wines at H. No.3-143/6, Sangem (V) & (M), Warangal District 1. The State of A.P., Rep. by its S.H.O. PS. Sangem, Warangal District through P.P. of High Court. 2. Y. Rajendra Prasad, Head Constable (HC No.1402),PS Sangem, Warangal district = 2011 (Dec. Part ) judis.nic.in/judis_andhra/filename=8818

Sec. 52 of the A.P. Excise Act, 1968 and Rule 2 (3) of A.P. Excise (Powers and Duties) Rules, 1972 - Head constable seized the stock of  licensed complaint shop - Only above the rank of circle inspector authorised under Act to seized and enter the shop - Writ petition allowed and whole proceedings are quashed = 
The case of the prosecution in brief is as follows : On 20-08-2009 as per
the instructions of Excise Circle Inspector, Mamnur the complainant along with
P.C. Nos.1558 and 2040 conducted patrolling at Thimmapur village, having got
reliable information that A-1 to A-4 were selling liquor purchased from A-5 at
their kirana shops without any license and valid permission, surprised the
house/kirana shop of A-5 =

Section 52 of the A.P. Excise Act, 1968 reads as follows :
        "Power to enter and inspect places of manufacture and  sale :-  The
Commissioner or a Collector or any Prohibition and Excise Officer not below such
rank as may be prescribed, or any Police Officer duly empowered in that behalf,
may, -
(a) enter and inspect, at any time, by day or by night, any place in which any
licensed manufacturer, manufactures or stores any intoxicant, and
(b) enter and inspect, at any time, within the hours during which sale is
permitted, and at any other time during which the same may be open, any place in
which any intoxicant is kept for sale by any person holding a license under this
Act; and
(c) examine the accounts and registers, and examine, test, measure or weigh any
material, stills, utensils, implements, apparatus, or intoxicant found in such
place."

8.      By virtue of Rule 2 (3) of A.P. Excise (Powers and Duties) Rules, 1972
(any officer of the Revenue Department of and above the rank of Tahsildar and)
every Police Officer of and above the rank of Deputy Superintendent having
jurisdiction over the place, is empowered to exercise the powers under Section
52 of the Act.  Further, by virtue of G.O.Ms. No.515, Revenue (Ex.II)
Department, dated 28-08-2002 the said sub-rule was omitted.  Further, by virtue
of Rule 3 of the same rules any Excise Officer not below the rank of Sub-
Inspector of Police or any Police Officer of and above the rank of an Inspector
and any officer of the Revenue Department of and above the rank of a Deputy
Tahsildar having jurisdiction over the place may seize such material.

9.      Therefore, the seizure of the contraband material by the Head-constable is
not tenable in law.  The question of delegating the powers to the Head-constable
to seize the material got not authentication.  No authority is placed before
this Court in that context. Further, the license filed on behalf of A-5 provides
that he got authority to sell the Indian made foreign liquor. Hence, in view of
the facts and circumstances of the case, sufficient material is not there to
prosecute A-5, as per law.  Hence, the proceedings are liable to be quashed.

Accordingly, the criminal petition is allowed quashing the entire proceedings in
Crime No.141 of 2009 pending on the file of P.S. Sangem, of Warangal District,
insofar as A-5 is concerned.

2011 (Dec. Part ) judis.nic.in/judis_andhra/filename=8818

THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY          

CRIMINAL PETITION No.6908 OF 2009    

28-12-2011

Kundarapu Krishna, S/o. Yadagiri,  Aged about 25 years, Business,
R/o.Chintalpally village, Sangem Mandal,Warangal District, A-4 licensee of
M/s. Sri Sai Wines at H. No.3-143/6, Sangem (V) & (M), Warangal District

1. The State of A.P., Rep. by its S.H.O. PS. Sangem, Warangal District through
P.P. of High Court.
2. Y. Rajendra Prasad, Head Constable (HC No.1402),PS Sangem, Warangal district  

Counsel for Petitioner  : Sri A. Ravinder.

Counsel for Respondents: Additional Public Prosecutor

ORDER:

This Criminal Petition is filed by the petitioner/accused No.5 (For short, 'A-
5') under Section 482 of Cr.P.C. seeking to quash proceedings in Crime No.141 of
2009, pending on the file of Sangem police station, Warangal district,
registered for offence punishable under Section 34 (a) of the A.P. Excise Act,
1968 (For short, 'The Act').

2.      Whereas the petitioner is A-5, the respondent No.2 is the complainant in
the Criminal Case. For the sake of convenience, I refer the parties as arrayed
in the Criminal Case from now onwards.

3.      The case of the prosecution in brief is as follows : On 20-08-2009 as per
the instructions of Excise Circle Inspector, Mamnur the complainant along with
P.C. Nos.1558 and 2040 conducted patrolling at Thimmapur village, having got
reliable information that A-1 to A-4 were selling liquor purchased from A-5 at
their kirana shops without any license and valid permission, surprised the
house/kirana shop of A-5 and found Indian Made Foreign Liquor (For short,
'IMFL') and seized from A-1 to A-4  the following  material (bottles) in the
presence of two mediators at Thimmapur village :
1) Officers choice whisky full bottles 750 ML - 4.
2) BP whisky full bottles 750 ML - 3.
3) AC premium whisky full bottle 750 ML - 1.
4) AC whisky quarter bottles 180 ML - 18.
5) Officers choice whisky quarter bottles 180 ML - 29.
6) MC whisky quarter bottles 180 ML - 4.
7) IB whisky quarter bottles 180 ML - 4.
8) MC quarter bottles 180 ML - 4.
9) Kingfisher strong beers 650 ML - 6.
10) Kingfisher light beers 650 ML - 6.
11) Kingfisher small beers 330 ML - 5.
10) Haywards 5000 beers 650 ML - 4.
11) Royal challenge beers 650 ML - 3.

According to the prosecution, A-1 to A-4 confessed before the police that the
material kept for sale was actually purchased from the shop of A-5 and thereby
A-1 to A-5 committed the alleged offence punishable under Section 34 (a) of the
Act.

4.      It is the contention of learned counsel for A-5 that admittedly, A-5 got
valid and subsisting license to sell the liquor in retail in respect of which,
filed a copy of Form-A4 issued vide proceedings in license No.17/2008-2010,
dated 28-06-2008 by the Prohibition and Excise Superintendent, Warangal and by 
virtue of Section 72 read with Sections 52 and 53 of the A.P. Excise Act, 1968
and A.P. Excise (Powers and Duties) Rules, 1972 only the concerned Excise  
Inspector got right to seize the material and further pertinently only on the
basis of the so called confession given by A-1 to A-4, A-5 was impleaded in this
case  but that confession is not admissible in evidence and therefore no case is
made out against A-5 and accordingly, the proceedings in so far as A-5 is
concerned are liable to be quashed.
5.      On the other hand, it is the contention of learned Additional Public
Prosecutor appearing for the respondents-state that in fact on the instructions
given by the concerned Circle Inspector only the Head-constable went and seized
the material and therefore there was compliance of law and it is important that
the investigation of the case is not yet completed and during that necessary
material pertaining to the case on hand maybe seized from A-5 and there are no
circumstances to quash the proceedings as prayed for.

6.      The point for consideration is whether sufficient grounds are there in
order to quash the proceedings as prayed for?

7.      Section 52 of the A.P. Excise Act, 1968 reads as follows :
        "Power to enter and inspect places of manufacture and  sale :-  The
Commissioner or a Collector or any Prohibition and Excise Officer not below such
rank as may be prescribed, or any Police Officer duly empowered in that behalf,
may, -
(a) enter and inspect, at any time, by day or by night, any place in which any
licensed manufacturer, manufactures or stores any intoxicant, and
(b) enter and inspect, at any time, within the hours during which sale is
permitted, and at any other time during which the same may be open, any place in
which any intoxicant is kept for sale by any person holding a license under this
Act; and
(c) examine the accounts and registers, and examine, test, measure or weigh any
material, stills, utensils, implements, apparatus, or intoxicant found in such
place."

8.      By virtue of Rule 2 (3) of A.P. Excise (Powers and Duties) Rules, 1972
(any officer of the Revenue Department of and above the rank of Tahsildar and)
every Police Officer of and above the rank of Deputy Superintendent having
jurisdiction over the place, is empowered to exercise the powers under Section
52 of the Act.  Further, by virtue of G.O.Ms. No.515, Revenue (Ex.II)
Department, dated 28-08-2002 the said sub-rule was omitted.  Further, by virtue
of Rule 3 of the same rules any Excise Officer not below the rank of Sub-
Inspector of Police or any Police Officer of and above the rank of an Inspector
and any officer of the Revenue Department of and above the rank of a Deputy
Tahsildar having jurisdiction over the place may seize such material.

9.      Therefore, the seizure of the contraband material by the Head-constable is
not tenable in law.  The question of delegating the powers to the Head-constable
to seize the material got not authentication.  No authority is placed before
this Court in that context. Further, the license filed on behalf of A-5 provides
that he got authority to sell the Indian made foreign liquor. Hence, in view of
the facts and circumstances of the case, sufficient material is not there to
prosecute A-5, as per law.  Hence, the proceedings are liable to be quashed.

Accordingly, the criminal petition is allowed quashing the entire proceedings in
Crime No.141 of 2009 pending on the file of P.S. Sangem, of Warangal District,
insofar as A-5 is concerned.

__________________________  
G. KRISHNA MOHAN REDDY, J      
Dated:28-12-2011. 

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