About Me

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Tuesday, September 23, 2014

Sections 132 and 135 of the Customs Act, 1962, -Economics Offence - seized Gold of 16 bars by customs & excise officers at Air port Hyd.- Bail petition dismissed by special judge - Sessions judge granted bail under sec.439 - Cancellation of Bail - Sessions court has no jurisdiction for granting a Bail - Whether the offences under customs Act are bailable offences - Whether special court at Hyderabad with out notification due to bifurcation holds jurisdiction over the case - Their Lordships held that Sessions court has no jurisdiction - as per the notifications and as per Act , Special court is constituted - Regarding bifurcation their lordships hold that since offence was detected at Hyd. the special court holds jurisdiction and also held that till the date of new notification due to bifurcation, old notification applies = CRIMINAL PETITION No.5846 OF 2014 06-08-2014 The Superintendent of Customs (Cus-Prev) Hyderabad-II Commissionerate, Hqrs Office Kendriya Shulk Bhavan, Basheer Bagh, Hyderabad-500004 rep. by Special P.P. Petitioner/ Complainant Kannur Abdul Kader Mohammed HaneefaS/o. Sri Abdul Khader Kannur Bayan Kunhi, Age: 33 years, r/o. Penne House, 1/90(50)Sooramsani Kannur Post,Kasargod District-671321 Kerala State Respondent/ Accused = 2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11815

Sections 132 and 135 of the Customs Act, 1962, -Economics Offence - seized Gold of 16 bars by customs & excise officers at Air port Hyd.- Bail petition dismissed by special judge - Sessions judge granted bail under sec.439 - Cancellation of Bail - Sessions court has no jurisdiction for granting a Bail - Whether the offences under customs Act are bailable offences - Whether special court at Hyderabad with out notification due to bifurcation holds jurisdiction over the case - Their Lordships held that Sessions court has no jurisdiction - as per the notifications and as per Act , Special court is constituted - Regarding bifurcation their lordships hold that since offence was detected at Hyd. the special court holds jurisdiction and also held that till the date of new notification due to bifurcation, old notification applies =

As per the above provisions, the Special Judge
for Trial of Economic Offences, at Nampally, in
Hyderabad constituted (for the erstwhile State of A.P. in
its entirety), by conferring jurisdiction. Now, from the
Andhra Pradesh State reorganization Act, 2014, which
came into force with effect from 02.06.2014, needless to
say it requires re-designation of two Courts for the two
States i.e. one the existing Special Court lying in the area
of State of Telangana and the other in any Metropolitan
units of the State of Andhra Pradesh like in
Visakhapatnam or Vijayawada or the like; as the State is
divided into two States after formation of new State of
Telangana for the Telangana Region and for the other
regions of Rayalaseema and Andhra remains as the State
of Andhra Pradesh. =
panchanama in this case and the crime registered in this
case show the accused person apprehended with 16 gold
bars brought in his hand bag received in Doha for
handover another person at his village and intercepted at
RGI Airport Hyderabad and this RGI Airport area and the
economic offence Court are, undisputedly, within the
bifurcated State of Telangana and the contention raised
by referring to the expression no way a bar in this case
as any said contention that till separate notification for
the State of Andhra Pradesh designating any other
Metropolitan or Additional Metropolitan Session Judge or
Additional Sessions Judge in that area of the State of
Andhra Pradesh covered by the Andhra Pradesh State
reorganisation Act, 2014; and till being designated the
existing Court if for the State of Telangana afresh, the
case relating to the economic offences cannot be tried by
the economic offences Court at Hyderabad is untenable
for the aforesaid reasons.  Hence and subject to that, it is
even left open to raise the lis in appropriate forum with
appropriate contention, but for to observe that the
authorities concerned may take care of, if any such
notification requires to have separate notification for the
State of Andhra Pradesh and for the State of Telangana
and it is made clear to avoid any future confusion till
such separate notification being given, the existing
notification and the jurisdiction holds good conferring
jurisdiction on the economic offences Court at Hyderabad
for the entire state of Andhra Pradesh that existing as on
the date of bifurcation and before to continue.=

In the result, the Criminal petition is allowed
and consequently order of the learned Metropolitan
Sessions Judge, Hyderabad passed in Crl.M.P. No.1464
of 2014 in Crime No.HQ. POR. NO.43 of 2014-CUS-PREV    
of Superintendent of Customs, Hyderabad is set aside,
however by invoking the inherent powers of this Court
under Section 482 Cr.P.C., this order of setting a side the
bail order granted by the learned Metropolitan Sessions
Judge is stayed for one week from today, for the
Respondent-accused to continue on the bail meanwhile,
so as to enable him to surrender before the learned
Special Judge for Economic Offences, under Section 44
Cr.P.C.; to take him to custody and more for regular bail
a fresh to entertain by the learned Special Judge to hear
and decide, including as to whether the offences are
bailable or non-bailable, with reference to the expression
of the Apex Courtin Omprakash(supra) and in granting
bail is with necessary conditions like execution of self
bond with sureties furnishing of full and correct address
with proof, with bank account particulars, surrender of
passport, attending to the investigation, assurance of
availability and securing his presence before Court, non
interefence with witnesses particularly of the mediators
to the panchanama and the like.

2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11815

THE HONBLE Dr. JUSTICE B. SIVA SANKARA RAO        

CRIMINAL PETITION No.5846 OF 2014    

06-08-2014

The Superintendent of Customs (Cus-Prev)  Hyderabad-II Commissionerate, Hqrs
Office  Kendriya Shulk Bhavan, Basheer Bagh,  Hyderabad-500004 rep. by Special
P.P. Petitioner/ Complainant

Kannur Abdul Kader Mohammed HaneefaS/o. Sri Abdul Khader Kannur Bayan Kunhi,    
Age: 33 years, r/o. Penne House, 1/90(50)Sooramsani Kannur Post,Kasargod  
District-671321
Kerala State  Respondent/ Accused  

Counsel for the Petitioner/ Complainant : Sri U.L.N. Sudhakar
                                           Special Public Prosecutor  
                                            for Customs, Hyderabad.

Counsel for Respondent/ Accused : M.Jagadish Kumar,  
                                   Counsel for respondent.

<Gist:

>Head Note:

? Cases referred:
01.     1987 ELT 324 (AP)
02.     1997(2) ALT (Crl.) 529 (DB) (AP)
03.     2012(3) SCC Crl.1249
04.     1987(32) ELT 324
05.     1976 (1) Crl LJ page 386
06.     1985(3) (AP) Crl. LJ Short notes 15
07.     1959 Madya Pradesh 147  
08.     AIR 1984 SC 718
09.     AIR 1984 SC 684
10.     1988 Crl.L.J. 1117
11.     1993 Crl.L.J. 2436
12.     AIR 1955 SC 196
13.     AIR 1964 SC 221
14.     AIR 1968 SC 1292
15.     AIR 1971 SC 520
16.     1996(4)ALD 490 DB
17.     1995(3) ALD 254
18.     2001 (Crl.) L.J. 111



HONBLE DR. JUSTICE B. SIVA SANKARA RAO        
CRIMINAL PETITION No.5846 OF 2014    

ORDER:

        This Criminal Petition is filed against the order in
Crl.M.P. No.1464 of 2014 in Crime No.HQ. POR. No.43 of
2014-CUS-PREV., of the Superintendent of Customs,
Hydeabad-II, Commissionerate, Basheerbagh.
        02.     The petitioner herein is the complainant and
the respondent is the sole accused of the above referred
crime registered against him for the offences punishable
under Sections 132 and 135 of the Customs Act, 1962,
where he was taken to judicial custody in the pending
crime by the Special Judge for Trial of Economic Offences
(the designated Court).
        03.     The accused, who moved for regular bail before
the learned Special Judge went unsuccessful, again
moved to the Metropolitan Sessions Judge, who granted
the regular bail under Section 439 of Criminal Procedure
Code, 1973 (in short, Cr.P.C.). By impugning the said
order, the present revision is filed seeking to cancel the
bail order including on the contention that the learned
Sessions Judge has no jurisdiction in granting the bail.
        04.     Heard both sides.
        05.     The contentions in support of the averments in
application impugning the bail order in seeking for its
cancellation are that, the learned Special Judge for Trial
of Economic Offences cum- VIII Additional Metropolitan
Sessions Judge, Nampally (designated as Special Court) 
once dismissed the application for bail, in Criminal
Petition No.905 of 2014, on 27.03.2014; the learned
Metropolitan Sessions Judge could not entertain another
bail application, much less, by sitting against to grant
the bail covered by the impugned order in Crl.P.M.P.
No.1464 of 2014, dated 23.04.2014 and hence the said 
order is liable to be set aside, more particularly, for want
of jurisdiction.  The other contentions are that granting of
the bail only by imposing a condition of bond of
Rs.10,000/- each to the satisfaction of Special Judge for
Trial of Economic Offences -cum- VIII Additional
Metropolitan Sessions Judge is untenable, also from the
fact of not considered of the accused person is from
Kerala State and there is every chance of his absconding,
the investigation is in progress, the crime is of a serious
nature in smuggling of gold, which is a threat to the State
Economy and the sureties are also of the State of Kerala
and it is difficult to secure presence of accused by serving
notice including to the sureties in the event of his
absconding. 
        6. The applicant referred G.O.Rt.No.734 Home
(Courts-A) Department, dated 13.03.1981; this Courts
Circular Roc.No.1348/SO/1991, dated 21.10.1991;
Single Judge expression of this Court reported in
Superintendent, Customs And ... vs Elukala
Krishnamachari And Ors.  (order in Crl.M.P. No.1188
and 1189 of 1986) and another Division Bench
expression of this Court reported in Fakhuruddin
Sharafali Ampanwala v. State  to support the said
contentions.
        7. Whereas it is the contention of the counsel for the
accused  respondent to this application before this
Court that, the learned Metropolitan Sessions Judge is
right in entertaining the bail application and in granting
the bail under Section 439 of Cr.P.C. as per the law
prevailing and also contended that there is a Judgment of
the Apex Court reported in Omprakash and another v.
Union of India and another  (3 Judges Bench) holding
that the offences under Central Excise Act, 1944 and
Customs Act, 1962 are bailable irrespective of term of
imprisonment fixed for said offences in view of Sections
9-A, 19 and 20 of Excise Act, Sections 104(3) & (4) of the
Customs Act and the Excise or Customs Officer cannot  
make arrest in respect of said offences without warrant
from Magistrate concerned in the offences which are
bailable; hence there is nothing to interfere with the
order granting bail by the learned Metropolitan Sessions
Judge.  It is also the contention that by virtue of the
State reorganisation Act, 2014, without separate
notifications of Government, the jurisdiction of Special
Court remains stand still.
        8. Perused the material on record.
        9. Before formulating the points for consideration
from the respective contentions supra, it is necessary to
detail the factual matrix which reads as follows:
        (a) On 20.03.2014, at 3.20 hours, a passenger by
name Kannur Abdul Khader Mohammed Haneefa, holder    
of Indian Passport No.F 0148775 (hereinafter referred to
the respondent-accused), who arrived by flight No.QR
500 from Doha to Hyderabad was intercepted by the
officers of Customs (Air Intelligence Unit), Rajiv Gandhi
International Airport, Shamshabad, Hyderabad in the
arrival hall at the Exit Gate after he has passed through
the Green Channel, without making any true declaration
on disembarkation slip on reasonable belief that he was
carrying contraband goods.  On examination of the
disembarkation slip, it was noticed that he was carrying
one hand bag and one checked in baggage and he has   
not declared any dutiable goods.  When the officers
questioned the respondent  accused whether he was  
carrying any dutiable goods either in the baggage or
checked in bag, the respondent  accused replied in
negative.  Then, screening of the hand bag and checked
in bag on the screening machine available in the customs
arrival hall, the officers noticed a dark and suspicious
metal object image in addition to his used clothes and
personal effects in his hand bag.  On close examination
of the hand bag of the respondent  accused i.e. Kannur
Abdul Khader Mohammed Haneefa in the presence of  
witnesses, the officers of Air Intelligence Unit, Rajiv
Gandhi International Airport, Shamshabad, Hyderabad
recovered one small packet wrapped with brown coloured
cellophane tape.  On further opening of the said packet,
found 16 yellow coloured rectangular metal bars with
inscription AL ETIHAD DUBAI-UAE 10 TOLO 999.0 (16   
Nos.) on the bars.  Thereupon, the officers in the
presence of the witnesses and in the presence of the said
passenger weighed the said yellow coloured rectangular
metal bars on the electronically operated weighing
machine available in the International passenger Arrival
Hall, RGAI, Shamshabad, Hyderabad and found each bar  
with weight of 116.63 grams.  Thereafter, so as to
ascertain the nature of the metal recovered, the officers
called upon the services of Sri B.Ram Kumar Jain,
approved valuer of jewellery appointed by the
Government of India for assaying the items, i.e. gold bars
recovered from the hand bag of the passenger.  In the
presence of the officers and in the presence of the
passenger, the assayer i.e. B.Ramkumar Jain, 
Government Registered Valuer assayed them and vide his  
report of valuation of jewellery dated 20.03.2014 certified
it to be sixteen gold bars of 999 purely weighing 1.866
grams valued at Rs.56,45,860/- (Indian Market Value), in
token of the assay having conducted in their presence
and the officers as well as the passenger have appended
their signatures on the valuation report enclosed to the
Mahazar. 
        (b) Thereafter, when questioned by the officers in
the presence of the independent witnesses, the
respondent  accused while admitting that the recovered
metal was gold informed that the same were received by
him in Doha to hand over to another peson at his village.
The respondent  accused further stated, that he
secreted the 16 gold bars in the hand bag by wrapping
them with yellow colored paper to avoid detection by the
customs authorities and to evade payment of Customs  
Duty.  Thereupon the officers on a reasonable belief that
the 16 gold bars weighing 1.866 kgs. and valued at
Rs.56,45,860/- were smuggled by the respondent
accused with an intention to evade payment of customs
duty payable thereon, being liable for confiscation under
the provisions of the Customs Act, 1962, thus seized the
same along with other documents, under the Mahazar,
dated 20.03.2014.
        (c) The respondent  accused, Sri Kannur
Abdulkhader Mohammed Haneefa in his statement,  
dated 20.03.2014 given before the Superintendent of
Customs (Air Intelligence Unit) Rajiv Gandhi
International Airport, Shamshabad Hyderabad, under
Section108 of Customs Act, 1962, stated that he is a taxi
driver.  He further stated that the said 16 Gold bars
weighing 1.866 kgs, were received by him in Doha for
handing over to another person in his village.  He further
admitted in the presence of the witnesses that he has not
mentioned about the gold in the disembarkation slip to
avoid detection by Customs Department and to evade 
payment of Customs duty.  
        (d) Thereupon the officers in the presence of the
independent witnesses and the respondent  accused
seized the contraband following the due process of law as
envisaged under the customs Act, 1962. It is averred that
the accused confessed to have procured, possessed &
transported having entered into the criminal conspiracy
for smuggling of the contraband.  The respondent
accused was arrested and produced before the learned
Special Judge for Trial of Economic Offences, Nampally,
Hyderabad on 20.03.2014 for contravention of Sections
132 & 135 (1)(c) of the Customs Act, 1962 and the
learned Judge remanded the respondent  accused to
judicial custody from time to time.
        (e) From that the respondent  accused filed bail
petition before the learned Special Judge for Economic
Offences cum- VIII Additional Metropolitan Sessions
Judge, Nampally, Hyderabad, numbered as Crl.M.P.
No.905 of 2014 in HQPOR No.43 of 2014 (Supdt, Cus-
Prev) and after the same was ended in dismissal on
27.03.2014; moved another bail application before the
learned Metropolitan Sessions Judge, Hyderabad in
Crl.M.P. No.1464 of 2014 that was allowed, enlarging the
respondent  accused on bail on the condition that a
personal bond for Rs.10,000/- with two sureties each for
a like sum to the satisfaction of the Special Court for
Economic Offences cum- VIII Additional Metropolitan
Sessions Judge, Hyderabad.  While allowing the petition
of the respondent, it was observed that the offence is
bailable.
        10.     Now the points arise for consideration are,
01. Whether the Metropolitan Sessions Judge has no 
jurisdiction to entertain the bail application but for by
the learned Special Judge cum- VIII Additional
Metropolitan Sessions Judge, which is designated as
Special Court, known as Special Judge for Trial of
Economic Offences, more particularly by sitting
against the dismissal order by the Special Judge or
otherwise once bail application is filed before the
Special Judge and disposed off and if so, the impugned
order of the Metropolitan Sessions Judge is liable to be
set aside, with what observations and consequences? 

2. To what result?
In Re. Point No.1:
        11. Needless to repeat the factual matrix detailed
supra, it is important to note that,
 11(a). Section 5 of Cr.P.C. reads that,
Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special
or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time
being in force.
Section 4 of Cr.P.C. reads that,
        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.
        From the above, it is clear that the Criminal
Procedure Code on the adjectival and Procedural
provisions, equally apply not only for the Indian Penal
Code offences, but also for other offences; leave about
even in investigating, inquiring or trying into I.P.C.
offences and other offences together, but for to the extent
saved by the said provisions of any other law to prevail,
to say the Cr.P.C. provisions are in that area, general law
to the extent special provisions covered those prevail and
in the other areas the Cr.P.C. to apply.
11(b). As per Section 6 of Cr.P.C.
6. Classes Criminal Courts:- Besides the High Courts
and the Courts constituted under any law, other than
this Code, there shall be, in every State, the following
classes of Criminal Courts, namely:-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any
metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
As per Section 9 of Cr.P.C.,
9. Court of Session:
(1) The State Government shall establish a Court of
Session for every sessions division.
(2) Every Court of Session shall be presided over by a
Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional
Sessions Judges and Assistant Sessions Judges to
exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may
be appointed by the High Court to be also an
Additional Sessions Judge of another division and in
such case he may sit for the disposal of cases at such
place or places in the other division as the High Court
may direct.
(5) Where the office of the Sessions Judge is vacant,
the High Court may make arrangements for the
disposal of any urgent application which is, or may be,
made or pending before such Court of Session by an
Additional or Assistant Sessions Judge, or, if there be
no Additional or Assistant Sessions Judge, by a Chief
Judicial Magistrate, in the sessions division; and every
such Judge or Magistrate shall have jurisdiction to
deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting
at such place or places as the High Court may, by
notification, specify; but, if, in any particular case, the
Court of Session is of opinion that it will tend to the
general convenience of the parties and witnesses to
hold its sittings at any other place in the sessions
division, it may, with the consent of the prosecution
and the accused, sit at that place for the disposal of
the case or the examination of any witness or
witnesses therein. Explanation.- For the purposes of
this Code," appointment" does not include the first
appointment, posting or promotion of a person by the
Government to any Service, or post in connection with
the affairs of the Union or of a State, where under any
law, such appointment, posting or promotion is
required to be made by Government.
As per Section 10 of Cr.P.C.,
10. Subordination of Assistant Sessions Judges.
(1) All Assistant Sessions Judges shall be subordinate
to the Sessions Judge in whose Court they exercise
jurisdiction.
(2) The Sessions Judge may, from time to time, make
rules consistent with this Code, as to the distribution
of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for
the disposal of any urgent application, in the event of
his absence or inability to act, by an Additional or
Assistant Sessions Judge, or, if there be no Additional
or Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall
be deemed to have jurisdiction to deal with any such
application.
As per Section 11 of Cr.P.C.
11. Courts of Judicial Magistrates.
(1) In every district (not being a metropolitan area),
there shall be established as many Courts of Judicial
Magistrates of the first class and of the second class,
and at such places, as the State Government may,
after consultation with the High Court, by notification,
specify. Provided that the State Government may, after
consultation with the High Court, establish, for any
local area, one or more Special Courts of Judicial
Magistrates of the first class or of the second class to
try any particular case or particular class of cases, and
where any such Special Court is established, no other
Court of Magistrate in the local area shall have
jurisdiction to try any case or class of cases for the
trial of which such Special Court of Judicial Magistrate
has been established.
(2) The presiding officers of such Courts shall be
appointed by the High Court.
(3) The High Court may, whenever it appears to it to be
expedient or necessary, confer the powers of a Judicial
Magistrate of the first class or of the second class on
any member of the Judicial Service of the State,
functioning as a Judge in a Civil Court.
As per Section 12 of Cr.P.C.
12. Chief Judicial Magistrate and Additional Chief
Judicial Magistrate, etc.
(1) In every district (not being a metropolitan area), the
High Court shall appoint a Judicial Magistrate of the
first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial
Magistrate of the first class to be an Additional Chief
Judicial Magistrate, and such Magistrate shall have all
or any of the powers of a Chief Judicial Magistrate
under this Code or under any other law for the time
being in force as the High Court may direct.
(3) (a) The High Court may designate any Judicial
Magistrate of the first class in any sub- division as the
Sub- divisional Judicial Magistrate and relieve him of
the responsibilities specified in this section as
occasion requires.
(b) Subject to the general control of the Chief Judicial
Magistrate, every Sub- divisional Judicial Magistrate
shall also have and exercise such powers of
supervision and control over the work of the Judicial
Magistrates (other than Additional Chief Judicial
Magistrates) in the sub- division as the High Court
may, by general or special order, specify in this behalf.
        It is also important to say from the designation of
the Special Judge for Trial of Economic Offences as
Special Judge for Trail of Economic Offences cum VIII
Additional Metropolitan Sessions Judge, which is located
at Nampally in Hyderabad, it is part of the Court of
Sessions also being the VIII Additional Metropolitan
Sessions Judge of the Metropolitan Sessions Division of
Hyderabad headed by the Metropolitan Sessions Judge.
The Metropolitan Sessions Division thereby includes
Metropolitan Sessions Judge, Additional Metropolitan
Sessions Judge and Chief Judicial Metropolitan
Magistrates and Metropolitan Magistrates as the case
may be which are part of the Division, from the combined
reading of Sections 6 & 9 to 12 Cr.P.C.
        12. As per the above provisions, the Special Judge
for Trial of Economic Offences, at Nampally, in
Hyderabad constituted (for the erstwhile State of A.P. in
its entirety), by conferring jurisdiction. Now, from the
Andhra Pradesh State reorganization Act, 2014, which
came into force with effect from 02.06.2014, needless to
say it requires re-designation of two Courts for the two
States i.e. one the existing Special Court lying in the area
of State of Telangana and the other in any Metropolitan
units of the State of Andhra Pradesh like in
Visakhapatnam or Vijayawada or the like; as the State is
divided into two States after formation of new State of
Telangana for the Telangana Region and for the other
regions of Rayalaseema and Andhra remains as the State  
of Andhra Pradesh. 
        13. In this regard, it is also important to refer the
provisions of Section 19 of the Cr.P.C.,
Subordination of Metropolitan Magistrates.
(1) The Chief Metropolitan Magistrate and every
Additional Chief Metropolitan Magistrate shall be
subordinate to the Sessions Judge; and every other
Metropolitan Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the
Chief Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code,
define the extent of the subordination, if any, of the
Additional Chief Metropolitan Magistrates to the Chief
Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrate may, from time
to time, make rules or give special orders, consistent
with this Code, as to the distribution of business
among the Metropolitan Magistrates and as to the
allocation of business to an Additional Chief
Metropolitan Magistrate.
        As per Section 10 of Cr.P.C., in non metropolitan
areas of any state concerned, all Assistant Sessions
Judges shall be subordinate to the Sessions Judge in
whose control they exercise jurisdiction for distribution of
business among such Assistant Sessions Judges, and the  
Sessions Judge may also make provision for the disposal
of any urgent application, by conferring in the event of
his absence or inability to act, by an Additional or
Assistant Sessions Judge, or, if there be no Additional or
Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall be
deemed to have jurisdiction to deal with any such
application.
        14. Thus the combined reading of Sections 9, 10
and 12 with Section 19 of Cr.P.C. referred supra, speak
the Special Additional Sessions Judge is not subordinate
to the Sessions Judge, more particularly, for no similar
provision to Section 10 of Cr.P.C., so far as the Additional
Sessions Judges concerned with reference to Section 9(3)
of Cr.P.C. referred supra.
        15. From the above provisions of the Criminal
Procedure Code and in this background(supra); coming
to the notifications or circular instructions and the
judicial pronouncements on the jurisdiction concerned:-
The important Circular is of the Government of Andhra
Pradesh (erstwhile) Home (Courts-A) Department, in G.O.
Rt.No.734, dated 13.03.1981, from the heading Courts
Criminal  Creating of Special Judges Court in the cadre
of District and Sessions Judge at Hyderabad to deal with
the trial of Economic Offences under the specified
Central Acts  Amendment to notification issued; the
references made thereunder were G.O.Ms.No.202, Home  
(Courts-A)  Department, dated 27.03.1980,
G.O.Rt.No.1967, Home (Courts-A)Department, dated  
04.08.1980, proceedings from the Registrar, High Court,
Lr.No.2220/E1/80, dated 29.12.1980 and another letter
No.4324/E1/80, dated 07.02.1981. It therefrom reads as
follows:
NOTIFICATION
        In exercise of the powers conferred by the proviso to sub-
section(1) Sub-Section 11 read with clause (J) of Section 2 of the
Code of Criminal Procedure 1973(Central Act 2 of 1974) and after
consultation with the High Court of Andhra Pradesh and in super
cession of the Notification issued by the Government of Andhra
Pradesh in G.O. Rt.No.1967, Home (Courts-A) Department, dated
4th August, 1980, the Governor of Andhra Pradesh hereby:
1)      Specifies the whole of the State of Andhra Pradesh as the
local area for the purpose of establishing a special Court
for the offences arising under the enactments mentioned
in the Annexure hereto; and
2)      Establishes a Special Court of Judicial Magistrate of the
First Class to try cases, arising under the enactments
mentioned in the annexure hereto, even if such cases
include offences punishable under the Indian Penal Code,
1860 and any other enactments, if such offences form
part of the same transaction and the said court shall be
known, as the Court of the Special Judge for Economic
Offences.
ANNEXURE  
01.     The Central Excise and Salt Act, 1944
02.     The Imports and Exports (Control) Act, 1947
03.     The Wealth Tax Act, 1957
04.     The Income Tax Act, 1961
05.     The Gold (Control) Act, 1968
06.     The Foreign Exchange Regulation Act, 1973
07.     The Customs Act, 1962
08.     The Companies Profit (Surtax) Act, 1964
09.     The Gift tax Act 1958
10.     The Export (Quality, Control and Inspection) Act, 1963
11.     The companies Act, 1956
12.     Monopolies and Restrictive Trade Practices Act, 1969.
(By order and in the name of the Governor of Andhra Pradesh)
                                                         S.Babu Rao
                                        Deputy Secretary to Government
        From the above notification, the preamble of the
notification under the heading special creation of the
Special Judges Court in the cadre of District and
Sessions Judge at Hyderabad to deal with the trial of
Economic offences, the notification was issued and the
notification is in supercession of the earlier notifications.
It reads that the Governor of Andhra Pradesh specifies
the whole of the State of Andhra Pradesh as the local
area for the purpose of establishing a Special Court for
the offences arising under the 12 Acts annexed and
establishes a Special Court of Judicial Magistrate of First
Class to try cases, arising under the enactments
mentioned in the annexure, even if such cases include
offence punishable under the Indian Penal Code and any
other enactments, and the said Court shall be known, as
the Court of the Special Judge for Economic Offences.
        16. No doubt, a reading of the above show the
notification is in establishing the Special Court of
Judicial Magistrate of First Class to try the cases
whereas at the heading for creation of the Special Judges
Court in the Cadre of District and Sessions Judge and it
is not even indicating two Courts constituted one of the
Sessions Judge cadre and the other of the Judicial
Magistrate of the First Class cadre (for want of any
committal procedure under any of the enactments within
the purview of Sections 190, 209 & 193 Cr.P.C.), but for
instead of from the above of the Special Judge of the
cadre of the Sessions Judge is also can exercise the
powers of a Magistrate.
        17. It is only the Government Order (supra) as on
the date prevailing. In this regard and pursuant to which
the High Court of Andhra Pradesh in
Roc.No.1348/SO/1991, dated 21.10.1991, issued
Circular instructions on the subject of entertaining the
bail applications in the matters pertaining to the
Economic Offences by giving instructions which reads as
under:
        It has been brought to the notice of the High
Court that bail applications pertaining to the
Economic Offences Court are entertained by the other
Sessions Judges, who has no jurisdiction.  As per the
G.O. Rt. No.734, Home (Courts-A) Department, dated
13.03.1981, a Special Judges Court in the cadre of
District and Sessions Judge at Hyderabad was created
to deal exclusively with the trial of Economic Offences
under the 12 specified Central Acts.
        The Practice of entertaining bail applications by
the Courts which have no jurisdiction is quite irregular
in view of the above said G.O. issued in exercise of the
powers conferred by proviso to Sub-Section(1) of
Section 11 read with Clause (j) of Section 2 of the Code
of Criminal Procedure Code, 1973.
        In this connection, I am directed to invite your
attention to the specific orders of the High Court,
dated 23.03.1987 passed in Crl.M.P.Nos.1188 and
1189 of 1986 holding that the jurisdiction of the
Sessions Divisions in the State of A.P., has been
excluded and the Special Judge for Economic Offences
alone is competent to consider the application for bail
in Income Tax mattes pending trial before the Court
for Special Judge for Economic Offences, Hyderabad.
        I am, therefore, directed to request you to follow
the above decision scrupulously in respect of the
mattes pertaining to the Economic Offences.
Sd/- Registrar (Admn.)

        The above circular instructions clearly speak the
Special Judge for Economic Offences is in the cadre of
the District and Sessions Judge and the other Sessions
Judges are having no jurisdiction to entertain any bail
applications under the enactments covered by the
Government notification after the said G.O. Rt.No.734,
dated 13.03.1981.
        18. It is to say the Circular instructions also cleared
the cloud saying the Special Judge is in the cadre of
District and Sessions Judge.  The Circular further speaks
referring to the earlier circular instructions of this Court,
dated 23.03.1987, after the order passed on
jurisdictional aspects by this (High) Court in
Crl.M.P.No.1188 and 1189 of 1986 holding that the
jurisdiction of the Sessions Divisions in the State of
Andhra Pradesh, has been excluded and the Special
Judge for Economic Offences alone is competent to
consider any application for bail in Income Tax matters
etc., pending (investigation/enquiry/trial) before the
Court of Special Judge for the Economic Offences,
Hyderabad.  It is, in this context, important to refer the
Honble Single Judges expression of this Court in
Crl.M.P. Nos.1188 and 1189 of 1986 dated 23.03.1987
reported as Superintendent, Customs and Central
Excise, Range-II, Nellore Division, Nellore, v. Elukala
Krishnamachari and others . The Court referred Section
11(1) and Clause (J) of Section 2 of the Code of Criminal
Procedure with regard to the constitution of Special
Courts and its ambit pursuant to the recommendations
of the Law Commission in its 47th report, the Central
Government since moved the State Government for
setting up of a Special Court in the State of Andhra
Pradesh for dealing with economic offences.  The State
Government after consultation with the High Court
established the Special Court for economic offences at
Hyderabad to deal with 12 specified Central Acts.  As the
maximum punishment that can be imposed being seven  
years rigorous imprisonment under the statute, it has
become necessary to post a presiding officer in the cadre
of District and Sessions Judge as there is no separate
cadre of Chief Judicial Magistrate. The Court has been
invested with the State wide jurisdiction issued under the
proviso to sub-section (1) of Section 11 read with Clause
(J) of Section 2 of Code of Criminal Procedure, 1973. The
Court of the Special Judge for economic offences is
treated as a separate unit by itself and it also held in
respect of bails and anticipatory bails for the offence
under Section 135 of Customs Act that specifically deal
with in that matter, if so, holding jurisdiction by the
Sessions Judge being general jurisdiction is ousted in
these cases and thus the Sessions Judge (Nellore) is not
competent to entertain bail application when additional
Judicial Magistrate dismissed the application stating that
the Special Judge for Economic Offences alone is
competent. Once the Special Judge for Economic Offence
alone is competent, bail granted to the accused by the
learned Sessions Judge, Nellore was held not legal and
thus the bail is to be cancelled under Section 439(2) read
with 438 of Cr.P.C. referring to the Government
notification in G.O.Rt.No.734, dated 13.03.1981 supra.
It was also observed that ouster of jurisdiction of the
ordinary court should not be readily inferred is even well
accepted; once the same is clearly expressed or by
necessary implication by virtue of G.O.Rt.No.734
referring to the 12 enactments in constituting the Special
Court by the Government. If the powers conferred on the
Magistrate with a right to remand the accused for any of
the offence under the 12 enactments specified in the
G.O.Rt.No.734; it is only the Special Judge for economic
offences, that is competent to consider the application for
bail and it is by implication the jurisdiction of the
Sessions Judges has been taken away and the same has  
been conferred on the Special Judge, which is entrusted
to try the cases arising under these enactments in the
whole of the State of Andhra Pradesh.  It is observed that,
it has been contemplated that the Chief Judicial
Metropolitan Magistrate, though holding the cadre of
District and Sessions Judge, is inferior to Sessions Judge
as per Criminal Procedure Code; but, the Special Court
now constituted under the provisions, is distinct and a
different one and as such the Sessions Judge should not
have entertained the application for bail (also when it was
brought to his notice that the II Additional Judicial I
Class Magistrate, Nellore dismissed the applications with
an observation that the Special Judge for Economic
Offences alone has got jurisdiction to the cases).
        As such the Special Judge for Economic Offences 
alone is the competent to consider the bail application for
grant of bail and the bail granted by the learned Sessions
Judge is liable to be cancelled is the conclusion, by
referring some of the earlier expressions of this Court
reported in viz., Ishwar Chand v. State , Kuppu Naidu
v. State of A.P.  and Gulam Mohd. V. State .
        19. Thus the cloud is cleared pursuant to
G.O.Rt.No.734 dated 13.03.1981 and from the expression
of the High Court and the later circular instructions of
this Court by referring to said earlier circular in ROC.
No.1348/SO/1991, dated 21.10.1991.
        20. It is even later, there is another the expression
of the Division Bench of this (High) Court headed by the
then Honble the Chief Justice of Andhra Pradesh in
Crl.R.C. No.99 of 1996 & Crl.R.C.No.98 of 1996 by
common order dated 04.08.1997 on the revision filed by
one Fakhruddin Sharafali Ampanwala v. State through
Special Public Prosecutor, referring to the expressions
in Elukala Krishnamachary (1supra), A.R.Antulay v.
R.S. Nayak   and R.S. Nayak v. A.R.Antulay , Bharat
Traders v. Special Chief Judicial Magistrate,
Allahabad  and Shri Ravi Nandan Sahay, Sessions
Judge, Patna , observed on the query raised as to can
an application for pre arrest bail (anticipatory bail) under
Section 438 of Cr.P.C. be moved before the learned
Metropolitan Sessions Judge, Hyderabad instead of the
Court of Special Judge for Economic Offences cum- VIII
Additional Sessions Judge, Hyderabad.  It was held in
answering the query, reiterating the Single Judge
expressions in the case of Elukala Krishnamachari
(1supra) and G.O.Rt.No.734, dated 13.03.1981 and
Cr.P.C. provisions in Chapter XXXIII, particularly,
Section 436 to 439, Sections 11 and Section 2(j)  read
with Section 14 with the latest provisions contained in
the Amendment Act, 1978 and the provisions relating to
Prevention of Corruption Act where also a Special Judge
is of the designated cadre of Sessions Judge with
empowerment to take cognizance of the offence directly
under Section 190 of Cr.P.C. without any committal
under Section 209 Cr.P.C. for taking cognizance at post
committal stage under Section 193 Cr.P.C., and the
earlier expressions of the Apex Court under Section 5-A
of the Prevention of Corruption Act, 1947 - reported in
H.N.Rishbud and Inder Singh v. State of Delhi , State
of Uttar Pradesh v. Bhagwan Kishore Joshi , S.N.
Bose v. State of Bihar  and P.Sirajuddin v. State of
Madras . All in reference to prevention of Corruption Act
and the provisions of Cr.P.C. the then prevailing having
referred to the earlier expressions that even in respect of
cases which are triable by the Court of Sessions, but
then this would create a conflict that can be resolved by
treating, although called a Magistrate, the Special Court
as the Sessions Court and also referred, in this regard,
Sections 26, 28 & 29 of Cr.P.C. regarding the power of
Sentence that to be passed by the Court of Sessions and
the Chief Judicial Magistrate or Chief Metropolitan
Magistrate and the Judicial First Class Magistrate and
the Metropolitan Magistrates etc., and concluded
ultimately at para 13 that there is no manner of doubt
that the Special Court, although called the Special Court
of Judicial Magistrate of First Class, is also a Court of
Session, and as the Court of Session has all the powers
to act under various provisions of Chapter XXXIII of the
Code of Criminal Procedure including for entertaining the
applications for anticipatory bail under Section 438 of
Code of Criminal Procedure. Once the Special Court has
the jurisdiction in the matters as above, it would be
creating conflict of jurisdiction if in addition to a Court of
Session which is specially designated for such matters
the regular Court of Session also is recognised as one
empowered to grant bail under Cr.P.C.  It will be, in our
view, not legitimate only to retain the jurisdiction of the
Special Court of Economic Offences for all purposes,
other than the grant of anticipatory bail and recognise
such power of granting anticipatory bail in the Sessions
Court of the district in which the offence is allegedly
committed of which the Court has otherwise jurisdiction
in the matter. Accordingly it was answered as follows:
01. Special Court of Economic Offences being a Court
having jurisdiction through out the State is alone
empowered to take cognizance of the offences which
are referable to the special enactments in the
Annexure to the notification under which the Special
Court has been created and to act for all purposes in
Chapter XXXIII of the Code of Criminal Procedure
including for granting anticipatory bail;
02. Jurisdiction of the regular Court of Session to the
extent of the offences under the Acts which are
mentioned in the annexure to the notification
creating the Special Court of Economic Offences is
excluded.  Persons apprehending arrest for the
offences under any of such Acts can move the Special
Court of Economic Offences for anticipatory bail and
not the regular Court of Session.

        Thus the Division Bench expression of this Court
also cleared any little cloud if remaining, in its categorical
saying of bail application under chapter XXXIII of
Cr.P.C., touching any of the offences under the 12
enactments enumerated by the G.O. (supra) is conferring
jurisdiction only on the Special Judge for Economic
Offences, for the entire State.  Thus, that alone got
jurisdiction which is the Court of Session as a separate
unit including the powers of Magistrate and no other
Court including any other Court of Session has any other
power to entertain any bail application. Though not
necessary thereby, but for reference to say that this
Court, in the course of hearing, addressed the Registry as
to any other circular instructions after the references
supra, in particular, after the Honble Division Bench
expression in Fhakruddin Sharafali Ampanwala v.
State (2supra). The answer received is in negative, saying
no further circulars have been issued in this regard as it
appears.  In fact one proceeding of this Court in
ROC.No.1970/E1/2005 of the Registrar (Vigilance), dated
21.06.2013, supplied by the Registry later speak that, it
was addressed to the Metropolitan Sessions Judge,
Hyderabad that Money Laundering Act, 2002 -
Designation of XXI Additional Chief Metropolitan
Magistrates Court Nampally, Hyderabad as Court of
Session as per the orders issued by the Government of
Andhra Pradesh pursuant to the notification issued by
the Government of India extraordinary Part-II, No.1028,
dated 08.05.2013 as the Special Court for trial of
Offences in respect of all the cases connected with
M/s.Satyam Computer Services (SCSL) under Section 9  
of Cr.P.C. and G.O.Ms. No.34, Law (LA & J Home Courts
C) Department, dated 02.04.2013.  It is in fact, the
Money Laundering Act, 2002 not specifically covered in
the G.O.Rt.No.734 among the annexure - 12 enactments;
apart from the same confined to that particular case
under trial and not a general conferment of the Special
Jurisdiction under the enactment even and thereby,
nothing more is required to be discussed with reference
to the said proceeding, which is only the existing Court
for the limited purpose to deal with the scope of the Act
in relation to the crime covered by the Act and other
offences that is dealing by a particular court for the
purpose of its empowering adjudication of the lis
efficaciously, touching the offence covered by the
provisions of that Act also.  It is also need less to say, but
for in the context from a little relevancy that, all the
District and Sessions Judges in the State and the
Metropolitan Sessions Judges equally, in particular,
under Section 11(2) Cr.P.C. are appointed by the High
Court to exercise the powers of a Judicial Magistrate of
First Class under the Code of Criminal Procedure covered
by the High Courts general notification
Roc.No.25/SO/74  I dated 14.08.1974 and the same
was also referred by sanctifying the same and the
subsequent circular instructions of this Court under
Section 11(2) of Cr.P.C. in Roc.No.1354/SO/82, dated
21.09.1982, the Additional District & Sessions Judge
functioning in the District Head-Quarter also being the
Chief Judicial Magistrate for the respective Districts and
confers on them all the powers, for no proceedings are
separately required for each Additional District and
Sessions Judge; and in a dispute raised before a Division
Bench of this Court regarding taking of cognizance under
Sections 190 read with 200 of Cr.P.C. on a private
complaint for the offence under Section 138 of N.I. Act by
the Additional District Judge, Nalgonda, when impugned,
the same was upheld by the Honble Division Bench of
this Court in K.Sudarshana Chari v. G.Saidulu and
others   holding that the above circular instructions
covered the area of taking cognizance even as Judicial
Magistrate of First Class under Section 138 of N.I. Act
read with 190 of Cr.P.C. by the additional District &
Sessions Judge is not illegal and thus there is nothing to
impugn the same.  In a similar situation in relation to
Section 9(2) of Cr.P.C. read with 2(1)(i) Cr.P.C. another
Honble Division Bench of this Court in Patel Sudhakar
Reddy v. The Registrar (Administration) High Court
and Ors.  held that the High Court, under Section 9
Sub-Sections (2) and (3) of the Code of Criminal
Procedure, shall appoint a Session Judge, Additional
Sessions Judge/s and Assistant Sessions Judge/s for
every Court of Sessions and the definition of District
Judge in Article 236 of Constitution of India including
the Sessions Judge is only for a limited purpose of
Chapter 6 of Part VI of the Constitution of India and
cannot be taken in aid for interpreting the expression
here in this context of the lis and reference to the then
designation in the cadre of Grade II and Grade I of the
then District Judge of Andhra Pradesh State Higher
Judicial Service not makes difference and also held that
no separate notification need be issued whenever the
District Judge is appointed as a Sessions Judge from the
general notification in Roc.No.25/SO/74, dated
14.08.1974 that was issued under Section 9 of Code of
Criminal Procedure, and further by G.O.Ms.No.518 dated
29.10.1987, the II Additional Metropolitan Sessions
Judge of the Metropolitan Sessions Court, Hyderabad is
appointed as Additional Judge to exercise jurisdiction of
the designated Court constituted for Metropolitan
Sessions Division for the offence under TADA  Act, 1987
and the said composite notification no way invalid and
those are held suffice.  There is another circular
instruction of the High Court in Roc.No.510/SO-1/2002
dated 02.09.2002, which is as per the Honble Apex
Court direction in giving clarifications that the designated
the then Additional District Judge as chief Judicial
Magistrates (as per the circular instructions referred
supra), by virtue of the directions of the Honble Apex
Court, the designation of the Senior Civil Judge cum
Assistant Sessions Judges as Chief Judicial Magistrates
and the Chief Metropolitan Magistrates and also with
reference to the understanding of the same in its
referring to the Criminal Rules of Practice and the
Circulars orders of 1990, in saying amendment to the
relevant Rule in that behalf that was stated to be issued
shortly. In fact it was also issued in taking care of.
        22. It is also necessary to refer in this context the
Apex Courts expression in State by Central Bureau of
Investigation, Appellant v. S.Bangarappa,
Respondent  in dealing with the prevention of
Corruption Act, 1988 for trial of offences specified under
Section 3 of the Act by Special Judge in pointing out the
name of the Presiding Judge holding the Court in the
notification empowering the Civil and Sessions Judge,
Bangalore; it was held by the Apex Court that even if no
Court is empowered, the criminal proceedings can be
kept in abeyance till Government issues Notification
conferring power of competent Court.  In fact that
difficulty also does not arise in this case as the offence
occurred prior to the coming into force of the Andhra
Pradesh State Re-organisation Act, 2014 w.e.f.
02.06.2014, apart from the fact that the place of offence
is within the newly formed State of Telangana and the
designated Court is also within the area of the Stte as per
the Act, 2014.  Thus, it is only for the offences taken
place after dated 02.06.2014 within the jurisdiction of
the State of Andhra Pradesh (consisting of Andhra &
Rayalaseema regions), a separate notificate is required
from the Government concerned conferring jurisdiction
on any one or more Courts of the State of Andhra
Pradesh and till then, the Registry of the High Court can
take care of by issuing necessary circular instructions,
pursuant to the Apex Courts expression in
S.Bangarappa (supra).
        23. From the above, coming to the facts, the
panchanama in this case and the crime registered in this
case show the accused person apprehended with 16 gold  
bars brought in his hand bag received in Doha for
handover another person at his village and intercepted at
RGI Airport Hyderabad and this RGI Airport area and the
economic offence Court are, undisputedly, within the
bifurcated State of Telangana and the contention raised
by referring to the expression no way a bar in this case
as any said contention that till separate notification for
the State of Andhra Pradesh designating any other
Metropolitan or Additional Metropolitan Session Judge or
Additional Sessions Judge in that area of the State of
Andhra Pradesh covered by the Andhra Pradesh State  
reorganisation Act, 2014; and till being designated the
existing Court if for the State of Telangana afresh, the
case relating to the economic offences cannot be tried by
the economic offences Court at Hyderabad is untenable
for the aforesaid reasons.  Hence and subject to that, it is
even left open to raise the lis in appropriate forum with
appropriate contention, but for to observe that the
authorities concerned may take care of, if any such
notification requires to have separate notification for the
State of Andhra Pradesh and for the State of Telangana
and it is made clear to avoid any future confusion till
such separate notification being given, the existing
notification and the jurisdiction holds good conferring
jurisdiction on the economic offences Court at Hyderabad
for the entire state of Andhra Pradesh that existing as on
the date of bifurcation and before to continue. The above
conclusion draws support from expression of Lord
Denning Quoted in Land marks in the law (Butterworths)
at page 62; from Christopher St. Germans doctor &
Student Chapter XVI Page 45 as the following:
Judges should not go by the letter by the intendment
of the Statute in giving interpretation, by doing what
the makers of statute would have done if they had
thought of it and filling in gaps accordingly

        The judges may judge after the mind of the makers
so far as the latter may suffer A judge must not alter the
material of which it is woven, but he can & should iron
out the creases.
                24. Having regard to the above, the learned
Metropolitan Sessions Judge has no right at all to
entertain much less to grant bail and the bail order
granted is unsustainable and thereby the bail order,
dated 23.04.2014, in Crl.M.P. No.1464 of 2014 is liable
to be set aside.  It is in this context to be kept in mind
that, as per the Apex Courts expression relied on by the
accused  respondent to this application that is
Omprakash (3supra) the offence under the Excise Act
and the Customs Act in view of Section 9-A, 19 and 20 of
Excise Act and Sections 103 and 104 of Customs Act are
bailable irrespective of the term of imprisonment fixed for
said offence (irrespective what is contained in schedule II
of Cr.P.C.).
        25.     Thus, to subserve the ends of justice any by
invoking the inherent powers under Section 482 Cr.P.C.,
the bail order to be kept in force for one week from today
instead of cancelling forthwith and by directing the
respondent  accused herein meanwhile to surrender
himself before the learned Special Judge for Economic
Offences, under Section 44 of Cr.P.C. to take him in to
custody and move for regular bail afresh to entertain the
said bail application of the accused  respondent herein
and to decide afresh including as to the same is bailable
or non bailable as the case may be and for granting bail
subject to such conditions necessary which may not
influence to the conditions imposed by the learned
Metropolitan Sessions Judge in the impugned order since
held without Jurisdiction in granting bail as the
conditions may include furnishing of full and correct
address with proof with bank account particulars,
passport particulars and surrender of passport, if any,
attending to the investigation, assurance of availability
and securing his presence before Court, non-interference
with witnesses particularly the mediators to the
panchanama and the like.  Accordingly, the point I is
answered.
In Re. Point No.2:
        26. In the result, the Criminal petition is allowed
and consequently order of the learned Metropolitan
Sessions Judge, Hyderabad passed in Crl.M.P. No.1464  
of 2014 in Crime No.HQ. POR. NO.43 of 2014-CUS-PREV     
of Superintendent of Customs, Hyderabad is set aside,
however by invoking the inherent powers of this Court
under Section 482 Cr.P.C., this order of setting a side the
bail order granted by the learned Metropolitan Sessions
Judge is stayed for one week from today, for the
Respondent-accused to continue on the bail meanwhile, 
so as to enable him to surrender before the learned
Special Judge for Economic Offences, under Section 44 
Cr.P.C.; to take him to custody and more for regular bail
a fresh to entertain by the learned Special Judge to hear
and decide, including as to whether the offences are
bailable or non-bailable, with reference to the expression
of the Apex Courtin Omprakash(supra) and in granting
bail is with necessary conditions like execution of self
bond with sureties furnishing of full and correct address
with proof, with bank account particulars, surrender of
passport, attending to the investigation, assurance of
availability and securing his presence before Court, non
interefence with witnesses particularly of the mediators
to the panchanama and the like.
____________________________    
Dr. B.SIVA SANKARA RAO    
Dt.06.08.2014 

Accident claim - M.V.Act - Rs.15000/- per annum as per schedule when applied - when the future prospects not given , deducting to 50% percent of income towards personal expenditure for a bachelor is reasonable - their Lordships held that when it is proved that the deceased was able body person and living on doing labour work - fixing Rs.100/- per day is not unreasonable and further held that Deduction of 50% income towards personal charges as held by apex court - causes more miserable as the court not taken in to consideration of future prospects while fixing income of Labour as Labour too would fetch increased wages daily and further the old parents are depending on the income of the deceased and as such deducting only 1/3rd income towards personal expenditure is reasonable - appeal filed by company was dismissed = M.A.C.M.A No.2601 of 2009 06-08-2014 The United India Insurance Co. Ltd.Rep. by its Deputy Manager, Hyderabad ... Appellant Smt. K. Kistamma and others.. Respondents = 2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11800

Accident claim - M.V.Act - Rs.15000/- per annum as per schedule when applied - when the future prospects not given , deducting to 50% percent of income towards personal expenditure for a bachelor is reasonable - their Lordships held that when it is proved that the deceased was able body person and living on doing labour work - fixing Rs.100/- per day is not unreasonable and further held that Deduction of 50% income towards personal charges as held by apex court - causes more miserable as the court not taken in to consideration of future prospects while fixing income of Labour as Labour too would fetch increased wages daily and further the old parents are depending on the income of the deceased  and as such deducting only 1/3rd income towards personal expenditure is reasonable - appeal filed by company was dismissed =

one K. Srinivas, 30 years old bachelor died when a
tanker lorry hit him when its driver in the process of reversing the vehicle
drove it in a rash and negligent manner and hit the deceased.
The claimants
who are the parents of the deceased filed M.V.O.P.No.272 of 2006 and
claimed Rs.4,00,000/- as compensation against respondents 1 and 2 who are
the owner and insurer of the offending vehicle.
1st respondent/ owner
remained ex parte and 2nd respondent/ Insurance Company contested the
matter.
After trial, on consideration of evidence on record, the Tribunal
awarded total compensation of Rs.2,77,000/- with costs and interest at 6% p.a
against respondents. =
Once there is evidence of the fact that the deceased was working, the
learned Tribunal can safely presume that the deceased was having an
income. Item 6 of the Second Schedule attached to the Motor Vehicles
Act, 1988 (henceforth to be referred to as 'the Act' for short) speaks of
"Notional income for compensation to those who had no income prior to
accident" (emphasis added).
Hence, a notional income can be presumed
only in case the deceased had 'no income' prior to his death by accident.
However, in case the deceased was employed, he would naturally, be
earning some amount. In other words, he would have 'some income'.
Hence, 'notional income' cannot be presumed in such a case. To apply a
notional income in those cases where there is lack of evidence with
regard to the income of the deceased, is to misread and misapply item 6
of the Second Schedule of the Act.
 Therefore, the contention raised by
Mr. Bhandari, about the application of notional income, is
unacceptable.
However, learned Tribunal should have also considered
the fact that even for a labourer, the income does increase in the future.
Thus, learned Tribunal should have added at least 50 per cent of the
income to the assessed income in order to arrive at the correct
compensation. =
It is true that in the cited decision in Syed Basheer Ahameds case
(1 supra) and also in Smt. Sarla Verma and Others vs. Delhi Transport
Corporation and another  the Apex Court held that in case of a bachelor
50% of his earnings is to be deducted.  However, it should be noted that the
tribunal while fixing the monthly earnings of the deceased at Rs.3,000/- has
not taken into consideration the component of his future prospects.  Thereby,
the compensation was reduced.
        In Santhosh Devi vs. National Insurance Co.Ltd.  the Apex Court
observed that even in case of self-employed and fixed wage persons future
prospects have to be taken into consideration and in that regard the Supreme
Court differed with the observation made in the earlier decision in Sarla
Vermas case (5 supra). So, it shows that tribunals and courts have to
consider the future prospects for computation of compensation.
Unfortunately that was not done in the instant case and thereby compensation
was lowered.  If 50% of the earnings of the deceased were to be deducted, as
argued by the appellant as against 1/3rd deducted by the tribunal, that would
result in further injustice to the claimants.  Therefore, for this reason this
Court declines to deduct 50% towards personal expenditure of the deceased.
For another reason also, this Court disapproves deduction of 50%.  In Sarla
Vermas case (5 supra) the Apex Court while advising deduction of 50%
towards personal expenditure of a deceased bachelor, however, observed that
in case of exceptional circumstances like the deceased had to feed more
mouths like widowed mother and large number of younger slimlings, the
personal expenditure can be restricted to 1/3rd.  In the instant case, the plea
of
claimants who are the parents of the deceased is that they are depending on
the earnings of the deceased and his death thrown them into miserable
condition. In the evidence of PW1the mother, she deposed that during his
life time the deceased used to look after herself and her husband by arranging
bread and butter.  Their dependency is not challenged in the cross-
examination. As the deceased had to support his parents, it would be natural
for him to use 1/3rd of his income for his personal expenditure.

2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11800

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.2601 of 2009

06-08-2014

The United India Insurance Co. Ltd.Rep. by its Deputy Manager, Hyderabad ...
Appellant

Smt. K. Kistamma and others.. Respondents  

Counsel for Appellant: Sri G. Ramachandra Reddy

Counsel for Respondents 1 and 2: Sri G. Madhu

<Gist:

>Head Note:

?Cases referred:
1)      (2009) 2 SCC 225 = 2009 ACJ 690 (SC)
2)      2007 (3)ALD 731
3)      2007 (3) ALD 634
4)      2007 ACJ 1477 (Rajasthan)
5)      2009 ACJ 1298 (SC) = AIR 2009 SC 3104  
6)      2012 ACJ 1428 (SC)
7)      1987 ACJ 561 (SC)


THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            
M.A.C.M.A. No.2601 of 2009

JUDGMENT:  
        Challenging the quantum of compensation, 2nd respondent in the OP/ 
Insurance Company preferred MACMA.    
2)      On factual side, one K. Srinivas, 30 years old bachelor died when a
tanker lorry hit him when its driver in the process of reversing the vehicle
drove it in a rash and negligent manner and hit the deceased.  The claimants
who are the parents of the deceased filed M.V.O.P.No.272 of 2006 and
claimed Rs.4,00,000/- as compensation against respondents 1 and 2 who are  
the owner and insurer of the offending vehicle.  1st respondent/ owner
remained ex parte and 2nd respondent/ Insurance Company contested the  
matter.  After trial, on consideration of evidence on record, the Tribunal
awarded total compensation of Rs.2,77,000/- with costs and interest at 6% p.a
against respondents.
        Hence the appeal by Insurance Company challenging the compensation  
as exorbitant.
3)      The parties in this appeal are referred to as they stood before the
Tribunal.
4)      Heard arguments of Sri G.Ramachandra Reddy, learned counsel for
appellant/ Insurance Company and Sri G.Madhu, learned counsel for
respondents/ claimants.
5 a)    Challenging the compensation, learned counsel for appellant firstly
argued that the Tribunal erred in fixing the notional income of the deceased
as Rs.100/- p.m. Instead, it ought to have fixed his annual income at
Rs.15,000/- following Second Schedule of Motor Vehicles Act.  He further
contended that the Tribunal ought to have deducted 50% towards personal
expenditure of the deceased in view of the decision in Syed Basheer Ahamed
and others vs. Mohd. Jameel and another   It deducted only 1/3rd, he argued.
His further submission is that second claimant who is the father of the
deceased was not a dependant and hence he is not entitled to compensation.
On this aspect, he relied upon the following decisions:
i)      Shamsunder Tiwari @ Shamlal Tiwari and others vs. Narsimha
Reddy and another
ii)     Gosala Ramadevi and others vs. P.Sivanarayana and another
b)      Finally he contended that the vehicle involved in the accident was AP
28 U 560 but the vehicle insured was AP 28 V 560 and the same was falsely 
implanted to gain compensation.
        He thus prayed to allow the appeal and reduce the quantum of
compensation.
6)      Per contra, while supporting the award, learned counsel for
respondents/ claimants firstly argued that the deceased was a young person
having the potentiality to earn more than Rs.100/- per day by doing labour
work.  In spite of it, the Tribunal took a moderate amount of Rs.100/- per day
and fixed his notional income as Rs.3000/- p.m and therefore, the Tribunal
cannot be found fault.  He further submitted that both the parents who are old
aged people are his dependants and hence they deserve compensation.  He
thus prayed for dismissal of the appeal.
7)      In the light of above rival arguments, the point for determination in this
appeal is:
Whether the compensation awarded by the Tribunal is just and reasonable
or needs interference?
8) POINT: The first contention of the appellant is that the tribunal ought to
have fixed notional income of the deceased at Rs.15,000/- per annum basing
on the Second Schedule of the M.V.Act and erred in fixing his income as
Rs.100/- per day.
a)      The contention of counsel for claimants is that the notional income of
Rs.15,000/- as provided in Second Schedule of the M.V.Act shall be made 
applicable to the non-earning persons such as old, bed ridden, sick and
infirm who had no income, but not to those persons who are able bodied
persons and by their exertions can earn some income. In those cases, the
Court has to fix notional income depending upon the age, earning capacity
and avocation of such persons. In such an event the Court need not be carried
away by the second schedule. On this aspect he relied upon the decision
reported in Vishan Das and others vs. Suwa Lal and others . I find force in
the submission of counsel for claimants.  The notional income of Rs.15,000/-
as provided in item No.6 of Second Schedule appended to M.V.Act applies to
those persons who had admittedly no income prior to the accident.  The
heading to Item No.6 which reads as Notional income for compensation to
those who had no income prior to accident, itself is self-explanatory in this
regard. Should we give a plain meaning to the words who had no income
prior to accident we understand that they refer to those persons who
admittedly had no income prior to accident. We can visualize those persons
as old and infirm, bed ridden by sickness and those who had no earning
capacity. In respect of those persons, notional income has to be taken as
Rs.15,000/- for computation of compensation. However, honestly speaking
the said notional income will not apply to other persons who are able bodied
persons and having earning potentiality and those who are employed in one
or other avocation and earning some income. In respect of such persons even
if there is no concrete evidence regarding their earnings, the Court shall make
a reasonable estimate of their earnings having regard to their age, nature of
occupation etc.  My view gets fortified from the observation of learned Judge
in the cited decision reported in Vishan Dass case (4 supra) which is as
follows:
Once there is evidence of the fact that the deceased was working, the
learned Tribunal can safely presume that the deceased was having an
income. Item 6 of the Second Schedule attached to the Motor Vehicles
Act, 1988 (henceforth to be referred to as 'the Act' for short) speaks of
"Notional income for compensation to those who had no income prior to
accident" (emphasis added). Hence, a notional income can be presumed  
only in case the deceased had 'no income' prior to his death by accident.
However, in case the deceased was employed, he would naturally, be 
earning some amount. In other words, he would have 'some income'. 
Hence, 'notional income' cannot be presumed in such a case. To apply a
notional income in those cases where there is lack of evidence with
regard to the income of the deceased, is to misread and misapply item 6
of the Second Schedule of the Act. Therefore, the contention raised by
Mr. Bhandari, about the application of notional income, is
unacceptable. However, learned Tribunal should have also considered
the fact that even for a labourer, the income does increase in the future.
Thus, learned Tribunal should have added at least 50 per cent of the
income to the assessed income in order to arrive at the correct
compensation. 
b)      In the instant case, it is pleaded deceased was aged 28 years and
earning Rs.3,000/- per month by working as labourer (adda coolie) and
fending his parents who are dependants. In the evidence of PW1 also she
deposed in similar lines. In Ex.A4postmortem report deceased was shown   
as 25 years old person. So, the facts and evidence show that deceased was an
young and able bodied person having earning potentiality.  Though there is
no recorded evidence regarding his earnings, still there is evidence to the
effect that he was earning some income. Therefore, the tribunal was right in
considering him as unskilled labourer and earning Rs.100/- per day.
c)      Then the second contention of the appellant is that the tribunal ought to
have deducted 50% of the earnings towards personal and living expenses of
deceased. It is true that in the cited decision in Syed Basheer Ahameds case
(1 supra) and also in Smt. Sarla Verma and Others vs. Delhi Transport
Corporation and another  the Apex Court held that in case of a bachelor
50% of his earnings is to be deducted.  However, it should be noted that the
tribunal while fixing the monthly earnings of the deceased at Rs.3,000/- has
not taken into consideration the component of his future prospects.  Thereby,
the compensation was reduced.  
        In Santhosh Devi vs. National Insurance Co.Ltd.  the Apex Court
observed that even in case of self-employed and fixed wage persons future
prospects have to be taken into consideration and in that regard the Supreme
Court differed with the observation made in the earlier decision in Sarla
Vermas case (5 supra). So, it shows that tribunals and courts have to
consider the future prospects for computation of compensation.
Unfortunately that was not done in the instant case and thereby compensation
was lowered.  If 50% of the earnings of the deceased were to be deducted, as
argued by the appellant as against 1/3rd deducted by the tribunal, that would
result in further injustice to the claimants.  Therefore, for this reason this
Court declines to deduct 50% towards personal expenditure of the deceased.
For another reason also, this Court disapproves deduction of 50%.  In Sarla
Vermas case (5 supra) the Apex Court while advising deduction of 50%
towards personal expenditure of a deceased bachelor, however, observed that
in case of exceptional circumstances like the deceased had to feed more
mouths like widowed mother and large number of younger slimlings, the
personal expenditure can be restricted to 1/3rd.  In the instant case, the plea
of
claimants who are the parents of the deceased is that they are depending on
the earnings of the deceased and his death thrown them into miserable
condition. In the evidence of PW1the mother, she deposed that during his
life time the deceased used to look after herself and her husband by arranging
bread and butter.  Their dependency is not challenged in the cross-
examination. As the deceased had to support his parents, it would be natural
for him to use 1/3rd of his income for his personal expenditure.
10)     The next contention is that second claimant who is the father of the
deceased is not a dependent and hence he is not entitled to compensation.  I
am unable to agree with this contention.  It is already held supra that as
against the plea of the petitioners that they are dependants of the deceased,
there was no contra evidence.  Therefore, both the claimants can be taken as
his dependants.  Even otherwise dependency alone is not a factor to consider
the entitlement of compensation.  The claimants are admittedly the legal
representatives of the deceased.  Under Section 166(1) (c) of M.V. Act, legal
representatives can file the claim petition irrespective of the fact whether
they
are dependants or not.  In Gujarat State Road Transport Corporation,
Ahmedabad vs. Ramanbhai Prabhatbhai , Apex Court allowed the claim of
the elder brothers of a deceased boy of about 14 years on the ground that they
were the legal representatives of the deceased, though they were not his
dependants.   Hence the contention of the appellant cannot be upheld.
11)     Finally, it was argued about difference in the vehicle number.  This
argument cannot be approved because the tanker lorry involved in the
accident was AP 28 V 560 but the claimants by mistake mentioned its
number as AP 28 U 560.  Later they got amended the registration number as
AP 28 V 560 as per orders in I.A.No.591 of 2007.  Hence there is no
ambiguity in it.
12)     In the result, I find no merits in the appeal and accordingly, the same is
dismissed by confirming award passed by the Tribunal in OP No.272 of 2006.
There shall be no order as to costs in the appeal.
     As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 06.08.2014

Red Sandal wood - Qualis Max Cab - interim custody - Police registered the case - but no form 66 was presented along with Vehicle before the Magistrate - Interim custody petition in the mean while - returned expressing no jurisdiction - Revision - High court held that since the property not produced before the Magistrate , the Magistrate has no jurisdiction to release the vehicle for interim custody and as such the order of trial court is correct = CRIMINAL REVISION CASE No.1436 of 2014 07-08-2014 A.Sathisha.Petitioner The State of A.P. rep. by the S.H.O Chagalamarri P.S.. Respondent = 2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11805

Red Sandal wood - Qualis Max Cab - interim custody - Police registered the case - but no form 66 was presented along with Vehicle before the Magistrate - Interim custody petition in the mean while - returned expressing no jurisdiction - Revision - High court held that since the property not produced before the Magistrate , the Magistrate has no jurisdiction to release the vehicle for interim custody and as such the order of trial court is correct =

the petitioner is the owner of the Toyota
Qualis Max Cab vehicle bearing No.KA 04 A 6300 and a case was  
registered in Crime No.106/2014 of Chagalamarri Police Station for the
offences punishable under the above sections of law for which the owner
of the vehicle filed a petition under Section 451 Cr.P.C praying to
release the vehicle.
The grounds urged in the said petition that the
petitioners vehicle was taken by driver for rent from Bangalore to
Schemoga and misused the same by transporting of red sandal by
violating forest rules and illegally transporting forest goods, upon which
the police seized the vehicle.
The learned Magistrate returned the
petition on the ground that the Court has no jurisdiction to entertain the
petition as the offence is under Forest Act and Red Sandal Act.
     
3) Aggrieved by the same, the petitioner preferred this revision on
the ground that the trial Court erred in returning the petition without
any valid or cogent reasons, that it ought not to have proceeded on the
wrong premise with regard to the actual custody of the seized vehicle,
for the custody could be either actual or symbolic, that the Judicial
Magistrate of the First Class has jurisdiction as the report of seizure of
the vehicle was made after registration of crime and more particularly
the crime was registered by the police (Law and order) and prayed to
release the vehicle as it is the only source of income for the petitioner.=
 No doubt the factual matrix show the crime is detected by the
regular police and not by forest officials and the vehicle was also seized
by them in detecting the crime along with the red sandal and it is a pre-
liti interim custody sought by the petitioner as nothing to show the
property produced before the learned Magistrate Court for its custody
with Form No.66 required by law by then.  Now, the question is whether
the learned Magistrate got jurisdiction or it is the forest officials by
virtue of the Forest Act offence that alone got jurisdiction. =
a Division Bench of
this Court in D.F.O, Warangal V. District Judge, Warangal  and held
that the decision referred by the learned Magistrate and Sessions Judge
of 1981(2) A.W.R is no longer good law.  The learned Single Judge of this
Court referred supra observed that, the Legislature did not provide
though wanted, the two forums one is Criminal Court which is in
existence and the other is Forest Officer and once the seized authority
has discretion to produce the seized forest produce and the crime
vehicle either before forest officer or before Magistrate; the proceedings
wherein respectively are also different and distinct.  So long as the
seized vehicle not produced before Magistrate and that too produced
before D.F.O it is under the Forest Act, the D.F.O is only empowered to
confiscate or release the vehicle and the produce and the learned
Magistrate ordered release of the vehicle that is confirmed with
modification by the Court of Sessions have no jurisdiction.
        13) The sum and substance of two expressions supra speak that, 
unless the vehicle is produced by the authorities concerned before the
Magistrate with Form No.66, the Magistrate has no jurisdiction to order
for interim custody pendentiliti  to say no pre-liti or pre-production
jurisdiction; that too when the vehicle seized is while illegally
transporting the forest wood which is a red sandal covered by the Rules
made including Red Sandal Transit Rules.  As such the return
endorsement on the application for custody, made by the learned
Magistrate to satisfy the query on jurisdiction for entertaining the
application is justified for nothing to show the vehicle was produced
with Form No.66 before the learned Magistrate to assume jurisdiction for
its interim custody.

  The Apex Court there
from upheld the order of the Magistrate confirmed by Sessions Court in
revision of the Magistrate has no jurisdiction to pass any interim custody
of seized vehicle but for the authorized officer of the Forest
Department, it was observed by the Apex Court in para-39 referring to
the other expressions in K.A.Kunchidammed (supra), second forester v.
Mansoor Ali Khan  which followed the earlier expression in State of
Karnataka V. K.Krishnan  that when a vehicle is involved in the forest
offence, the same is not to be released to the offender or to the
claimant as a matter of routine till the culmination of the proceedings
which may include confiscation of such vehicle.  It was therefrom the
facts held that the confiscation order passed by the forest officials and
sitting against by the learned District Judge against which while sitting
by the High Court in its invoking jurisdiction under Section 482 Cr.P.C for
interim release of vehicle held is nothing but exceeding jurisdiction.

2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11805
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

CRIMINAL REVISION CASE No.1436 of 2014    

07-08-2014

A.Sathisha.Petitioner

The State of A.P. rep. by the S.H.O Chagalamarri P.S.. Respondent

Counsel for the Petitioner : Sri V.Nitesh
 Counsel for the Respondent:  Public Prosecutor

<Gist :

>Head Note:

? Cases referred:

1.      1978(2) APLJ 191
2.      1996(2) ALT (Crl.) 699 = 1996(4) ALD 223
3.      1985(1) APLJ 47
4.      (2004)4 SCC 129
5.      1980(1) ALT 8
6.      1978(1) APLJ 391
7.      (2002)1 SCC 495
8.      (2004)1 SCC 293
9.      (2000)7 SCC 18


HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          
CRIMINAL REVISION CASE No.1436 of 2014    

ORDER :
      1) This revision is filed by the petitioner/owner of the vehicle
under Section 397 and 401 Cr.P.C. aggrieved by the order dated
27.06.2014 in CFR No.2806 of 2014 in Crime No.106 of 2014 of
Chagalamarri Police Station registered for the offences punishable under
Sections 379 I.P.C and Sections 29(1)(b), 20(1)(3) and (1) of Indian Forest
Act, 1967, Rule 3 of A.P. Forest Products and Transit Rules and Rule 3 of
Red Sandal Wood Possession Rule 1970 under which the petition under
Section 451 of Cr.P.C filed by the petitioner was returned by the learned
Judicial Magistrate of the First Class, Allagadda, Kurnool District.  The
petitioner shown his address as Mahadevapura Bande, Bangalore.
      2) Brief facts are that the petitioner is the owner of the Toyota
Qualis Max Cab vehicle bearing No.KA 04 A 6300 and a case was   
registered in Crime No.106/2014 of Chagalamarri Police Station for the
offences punishable under the above sections of law for which the owner
of the vehicle filed a petition under Section 451 Cr.P.C praying to
release the vehicle.  The grounds urged in the said petition that the
petitioners vehicle was taken by driver for rent from Bangalore to
Schemoga and misused the same by transporting of red sandal by  
violating forest rules and illegally transporting forest goods, upon which
the police seized the vehicle.  The learned Magistrate returned the
petition on the ground that the Court has no jurisdiction to entertain the
petition as the offence is under Forest Act and Red Sandal Act.
      3) Aggrieved by the same, the petitioner preferred this revision on
the ground that the trial Court erred in returning the petition without
any valid or cogent reasons, that it ought not to have proceeded on the
wrong premise with regard to the actual custody of the seized vehicle,
for the custody could be either actual or symbolic, that the Judicial
Magistrate of the First Class has jurisdiction as the report of seizure of
the vehicle was made after registration of crime and more particularly
the crime was registered by the police (Law and order) and prayed to
release the vehicle as it is the only source of income for the petitioner.
      4) The learned Public Prosecutor opposed the revision petition
stating the learned trial Magistrate is correct in his observation on want
of jurisdiction to entertain the application since it is the forest officials
having jurisdiction and thus there is nothing for this Court to interfere by
sitting in revision and sought for dismissal.
      5) Heard both sides and perused the material on record.
      6) Now, the points that arise for consideration are
(i)     Whether the impugned order of the learned Judicial
Magistrate of the First Class, Allagadda covered by
order dated 27.06.2014 is not sustainable and to what
extent this Court to interfere while sitting in revision
against revision.
(ii)    To what result?
POINT No.i:
        7) A perusal of the panchanama dated 20.05.2014 shows that in
between C.K.Palli and Mutyalampadu villages near Birds school based on
information to the S.I. of Police, the Sub-Inspector with staff along with
the mediators proceeded to the said place reached by 17.15 hours and a
quails zeep with Meroon Red colour coming from Ahobilam area and on
seeing the police party of the Qualis vehicle reached nearby
apprehending interception within a distance of 10 feet away from the
police party, suddenly the vehicle reversed back to flee away.  However,
the police party apprehended and could stop the vehicle from
proceeding further and noticed two persons therein besides the driver
and they were made to get down in so they noticed four logs of red
sandal which they were illegally transporting in the vehicle and the
driver is Chandran Sateesh of Bengaluru city, Old Madras Road and the
investigation show the modus operandi of him even earlier in so
transporting illegally the red sandal and the other two persons in the
vehicle are Amjad Pasha and Shabbir Pasha who also belongs to
Bengaluru and they also disclosed their identity by respective individual
interrogation which discovered the facts of their privy to the crime and
the Toyota Red colour quails jeep is bearing No.KA 04 A 6300 and the
police party called the Forest Settlement Officer and in the presence of
Forest Officials cause measured the red sandal weighing about 50 kgs
worth Rs.50,000/- and the further facts discovered disclosed the red
sandal logs purchased by these persons from other three persons of
Dornakottala village who were trading with the forest wood by uprooting
the trees.  It is from registration of the crime and seizure of the
property under the panchanama including the vehicle with the red
sandal logs the police started investigation of the case.
        8) Pending investigation, the application filed before the lower
Court by the petitioner claiming as owner of the vehicle saying the
driver who has taken the vehicle for rent from Bengaluru to Shemoga
misused the same in illegally transporting the red sandal logs against the
forest rules and the vehicle seized is by Chagalmarri Police and being the
owner of the vehicle is seeking interim custody undertaking not to
change the colour and utility.  Hence to release.
        9) The Learned Magistrate by endorsement dated 27.06.2014
returned the same holding that he has no jurisdiction to entertain the
petition as the offence is a Forest and Red Sandal Acts offence.  It is
impugning the same as referred supra, the present revision is filed.
        10) No doubt the factual matrix show the crime is detected by the
regular police and not by forest officials and the vehicle was also seized
by them in detecting the crime along with the red sandal and it is a pre-
liti interim custody sought by the petitioner as nothing to show the
property produced before the learned Magistrate Court for its custody
with Form No.66 required by law by then.  Now, the question is whether
the learned Magistrate got jurisdiction or it is the forest officials by
virtue of the Forest Act offence that alone got jurisdiction.  In this
regard the petitioner placed reliance upon a Division bench judgment of
this Court in W.A. No.66 of 1978 (Hazi Begum V. State of A.P ) wherein
it was held that the forest range officer, Hyderabad (south) near
Hussaini Alam Police Station intercepted the vehicle carrying red sandal
wood billets without permit against the red sandal wood and Sandal
Wood Transport Rules and the Andhra Pradesh Forest Act provisions and
the same were seized under panchanama and the Range Officer  
produced the forest produce and the vehicle before D.F.O, Hyderabad
who lodged report in registering crime and submitted F.I.R to the
concerned Metropolitan Magistrate, also the arrested accused driver
with remand report and the vehicle also to judicial custody and the
accused was remanded for 15 days judicial custody and for the
absconding owner of the billets to secure, a bailable warrant was issued.
The writ appeallant Hazi Begum claimed as owner of the vehicle and
pending trial sought for delivery of the vehicle and the learned
Magistrate ordered interim custody of the vehicle to said claimant-Hazi
Begum subject to self-bond with two sureties and subject to the deposit
of the revision case of the vehicle in Court and to produce the vehicle on
every adjournment during enquiry/trial and not to transfer and not to
change use etc, conditions that order of the Magistrate was impugned in
W.P. No.5540 of 1977 by the Forest Range Officer showing the said Hazi
Begum as the 1st respondent to the writ petition and the writ petition
was allowed by the learned Single Judge setting aside the order of the
Learned Magistrate holding that he has no jurisdiction to release the
vehicle. Correctness of the said writ petition order was impugned in the
writ appeal.  The Court ferred Section 53 of the Andhra Pradesh Forest
Act, 1967 (for short, the Act) besides Section 44, 45, 50, 58 and 58-A
including the Andhra Pradesh Forest Amended Act, 17 of 1976 and with
reference to the provisions observed that the wording of Section 53 of
the Act is indicating relating to arrest of the person by the Forest Officer
without orders of Magistrate and to produce before Magistrate for
Judicial Custody.  It also speaks from para-4 of the Judgment that a
forest officer not below the rank of F.R.O can seize the forest produce
together with tools, ropes, chains, boats vehicles and cattle employed in
commission of the offence under Section 44 of the Act and after said
seizure put marks on the goods seized and keep in his custody or with
forest guard or village headman till offence is compounded or release of
seized article and when so required by Magistrate or until the orders of
the Court for disposal of the order is received and the goods otherwise
are to be produced before Assistant Conservator of the Forest who is
competent by Government notification to deal with seized goods.  The
proviso to Section 44 of the Act speaks the property seized is that of the
Central or State Government and even after, if not even it shall be
reported to the D.F.O and where the Forest Officer seized the property
in respect of the forest offence he may order confiscation of the timber
or other produce so seized or produce together with all tools - - - -,
vehicles used in commission of the offence, after the person from whom
the property seized given notice informing grounds on which the
property proposed to be confiscated and opportunity of making written
representation, if any and of hearing before passing such order for
confiscation and if the owner of the vehicle or the like proves to the
satisfaction of the forest officer of the same used in carrying the
property without his knowledge or connivance in its use in commission of
the offence despite he has taken reasonable and necessary precautions
against such use and it is subject to that; the confiscation be made.
Against such confiscation order, for the aggrieved person within 30 days
from the date of communication of confiscation order there is right of
appeal in District Court within the jurisdiction there the property is
seized to hear and pass orders.
        11) It is ultimately held in so referring that, for the Range Officer
there are two options either to produce before Forest Officer, the forest
produce with tools or make a report of seizure to the Magistrate and the
option is material for no obligation to report seizure to the Magistrate as
if the offence is not compounded by forest officials, the officials have
recourse to the procedure prescribed for confiscation which is no doubt
subject to right of appeal before the District Court for attaining finality.
Once there is report of seizure to the Magistrate, the Magistrate is
empowered to take such measures necessary besides trial of the accused  
for disposal of the property and the powers thus enumerated are
dehorse on the powers of Magistrate under Section 45 Cr.P.C for
custody, disposal pending trial and order for disposal at conclusion of
trial as per the relevant chapter of Cr.P.C.  It is observed that sub-
section (4) and (5) of Section 44 of the Act in terms are not compatible
of any ambiguity for power of Magistrate to dispose of the forest
produce and tools once a report is received by him and Sub-section (5)
speaks of the interim arrangements and thereby held that the learned
Magistrate cannot be held to have passed the order without jurisdiction
and allowed the writ appeal.
        12) The other decision placed reliance is of a single Judge of this
Court in State of A.P. V. Anandmal Surajmal Sethia .  In this case the
Forest Range Officer seized the lorry and produce before D.F.O, Kadapa
and the owner of the lorry approached the learned Magistrate, Rajampet
under Section 457 Cr.P.C for release of the vehicle for interim custody
and the learned Magistrate ordered for its release subject to conditions
including furnishing of bank guarantee and the same was when
challenged before the Court of Session by revision the same was
modified regarding the bank guarantee and to deposit registration
certificate book and other documents and to produce the vehicle as and
when required by Court or D.F.O. Against which, the matter reached
under Section 482 Cr.P.C before this Court where the Honourable Single
Judge of this Court observed that when the seized lorry was produced
before D.F.O and not before learned Magistrate under Section 44 of the
Act, it is only the Forest Officer of forest department that is competent
to confiscate or release the vehicle pending investigation and the
Magistrate or Learned Sessions Judge have no jurisdiction and for that
conclusion placed reliance upon earlier expression of a Division Bench of
this Court in D.F.O, Warangal V. District Judge, Warangal  and held
that the decision referred by the learned Magistrate and Sessions Judge
of 1981(2) A.W.R is no longer good law.  The learned Single Judge of this
Court referred supra observed that, the Legislature did not provide
though wanted, the two forums one is Criminal Court which is in
existence and the other is Forest Officer and once the seized authority
has discretion to produce the seized forest produce and the crime
vehicle either before forest officer or before Magistrate; the proceedings
wherein respectively are also different and distinct.  So long as the
seized vehicle not produced before Magistrate and that too produced
before D.F.O it is under the Forest Act, the D.F.O is only empowered to
confiscate or release the vehicle and the produce and the learned
Magistrate ordered release of the vehicle that is confirmed with
modification by the Court of Sessions have no jurisdiction.
        13) The sum and substance of two expressions supra speak that, 
unless the vehicle is produced by the authorities concerned before the
Magistrate with Form No.66, the Magistrate has no jurisdiction to order
for interim custody pendentiliti  to say no pre-liti or pre-production
jurisdiction; that too when the vehicle seized is while illegally
transporting the forest wood which is a red sandal covered by the Rules
made including Red Sandal Transit Rules.  As such the return
endorsement on the application for custody, made by the learned
Magistrate to satisfy the query on jurisdiction for entertaining the
application is justified for nothing to show the vehicle was produced
with Form No.66 before the learned Magistrate to assume jurisdiction for
its interim custody.  Even the expression of the Apex Court in State of
West Bengal V. Sujith Kumar Rana  in dealing with a forest case is that
when there is a power of a Magistrate under Cr.P.C for interim release
of vehicle involved in the West Bengal Forest Act offence concerned, it
was observed with reference to Section 52 and 59(g) of the West Bengal
Forest Act that the object of confiscation of the property involved in the
forest offences is to protect and to maintain the ecological balance and
to prevent the crimes under the Forest Act.  The State Legislature made
provisions relating to seizure and confiscation by forest officials in order
to preserve the forest as national wealth and within the spirit of Articles
48(a) and 58(g) of the Constitution of India and the confiscation is
permissible once the ownership of the forest produce is clear and there
is a remedy against the order of confiscation taken care of by appeal and
procedure also made to follow for confiscation proceedings to
commence by ordering notice.  Confiscation envisages a civil liability in
respect of the property, must be generally proceeded by a judgment of
conviction or the like.  It was observed in para-31 that the criminal
Courts although have jurisdiction under Cr.P.C, but once confiscation
proceedings initiated it has no jurisdiction as said jurisdiction of criminal
Court excluded and once that is the case the High Court while sitting
against it, cannot exercise its inherent power even to assume
jurisdiction on criminal Court.  At para-36 of the judgment of the Apex
Court, it referred to a division bench expression of this Court in
Md.Yasim V. Forest Range Officer  that was also approved in another
bench in saying the procedure contemplated under Section 44 of the
Act-one is trial of a person accused of an offence under the Act and the
other is confiscation of the property which forming part of the subject
matter of the offence even by the Forest Officer and when the Act
provides a special machinery for confiscation of the forest produce etc,
by the forest officer concerned in the general public interest to suppress
the mischief to worthless exploitation of Government forests by illicit
felling and removal of valuable forest produce even acquittal of the
accused by trial Magistrate did not entail nullifying the confiscation
order of the seized property by the forest officer on his subject to
satisfaction and the same was quoted with approval of earlier Division
Bench expression in State of A.P V. T.K.Mohamood .  At para-37 of the
Apex Court judgment, they referred another judgment of the Apex Court
in State of West Bengal V. Gopal Sarkar  in saying the forest produce
which is property of State Government once produced before forest
officer in respect of an offence committed, he may pass order of
confiscation together with the tools, ropes, chains, boats and vehicles
and cattle etc, and the power of confiscation is independent of any
proceeding of prosecution for the forest offence committed.  It also
referred at para-38 another expression of the Apex Court in State of
Karnataka V. K.A.Kunchidammed a case relating to sandal wood under  
Karnataka Forest Act; saying for preserving the forest and forest produce
in the State, the provisions in the Act were made, where under the
forest officer of the forest department when empowered to confiscate
the seized forest produce in respect of the forest offence, the general
power vested in the Magistrate for dealing with the interim custody of
the seized vehicle under Cr.P.C has to go away.  The Apex Court there
from upheld the order of the Magistrate confirmed by Sessions Court in
revision of the Magistrate has no jurisdiction to pass any interim custody
of seized vehicle but for the authorized officer of the Forest
Department, it was observed by the Apex Court in para-39 referring to
the other expressions in K.A.Kunchidammed (supra), second forester v.
Mansoor Ali Khan  which followed the earlier expression in State of
Karnataka V. K.Krishnan  that when a vehicle is involved in the forest
offence, the same is not to be released to the offender or to the
claimant as a matter of routine till the culmination of the proceedings
which may include confiscation of such vehicle.  It was therefrom the
facts held that the confiscation order passed by the forest officials and
sitting against by the learned District Judge against which while sitting
by the High Court in its invoking jurisdiction under Section 482 Cr.P.C for
interim release of vehicle held is nothing but exceeding jurisdiction.
        14) Having regard to the above, the law is fairly settled in saying
that because of the specific provision empowering the forest officials
the criminal Courts cannot assume the general jurisdiction conferred
under Cr.P.C for ordering interim custody or release of vehicle.
POINT No.ii:
        15) In the result, the revision is dismissed holding that the
impugned order by return of the interim custody of the vehicle for want
of jurisdiction dt.27.06.2014 passed by the learned Magistrate in CFR
No.2806 of 2014 in Crime No.106/2014 of Chagalamarri Police Station no
way requires interference by sitting against.  Consequently the
miscellaneous petitions pending, if any, shall stand closed.
_________________________  
Dr. B. SIVA SANKARA R?O, J  
Date:   -08-2014