1 APHC010258322021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3332] WEDNESDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI WRIT PETITION NOS: 14927/2021 & 17952/2025 Between: 1. Kouluri Eswaramma, W/o K.Eswar Reddy, aged about 68 years, occ - housewife, R/o. H.No.2-402-2a, Balajinagar, Chemmumiapet, kadapa, YSR kadapa district. ...PETITIONER AND 1. The State Of Andhra Pradesh, Rep By Its Principal Secretary, Department Of Prohibition And Excise, Secretariat Building, Secretariat, Velagapudi, Guntur District. 2. The Superintendent Of Police Cum Confiscating Authority, Kurnool, Kurnool District. 3. The Station House Officer, Kurnool Taaluk Ups, Kurnool District. 4. The Excise Inspector, Sri. R. Ravi Chandra Department of prohibition and Excise Office of Deputy commissioner of excise, kurnool district. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, direction or order more particularly one in nature of Mandamus declaring the action of the respondents 2 to 4 in initiating the proceedings of confiscation and issuing the proceedings dated 10-02-2021 pursuing to the crime registered by the 3rd respondent in Crime no.942/2020,the copy of proceedings of which furnished to the petitioner under Right to Information Act on 29-06-2021 is illegal, arbitrary, un- 2 constitutional, ultra vires, violative of Article 14 of the Constitution of India and void-ab-initio and consequently to set aside the same and direct the 2nde respondent to release the security bonds furnished to the 2nd respondent for release of the vehicle bearing AP04AP3789 of Maruti swift by quashing entire proceedings actuated with malafides by the 4th respondent and pass such other further orders as it deem fit and proper IA NO: 1 OF 2021 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings, in pursuance of the proceedings dated 10-02-2021 issued by the 2nd respondent vide Rc.No.522/ SEB/2021 by suspending the operation of the same and pass such other further orders as it deem fit and proper pending disposal of the above writ petition IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased May be pleased to receive the Counter affidavit copies on record by allowing the leave petition in the writ petition in the interest of justice and to pass IA NO: 1 OF 2026 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased May be pleased to grant leave to the petitioner to file reply affidavit in W.P.No.14927 of 2021 and to pass Counsel for the Petitioner: 1. KOCHIRI RAJA SHEKAR Counsel for the Respondent(S): 1. GP FOR PROHIBITION EXCISE 2. GP FOR HOME 3. P NARAHARI BABU 3 The Court made the following common order: The case of the petitioner is that, she is the owner of the motor car namely Maruti Swift bearing registration No.AP04 AP 3789 and the said vehicle is being used exclusively for family needs. On 16.09.2020 when her son is returning to Kurnool from Hyderabad in the said car, it was intercepted by the 4th respondent and his staff. It was her further case that, at the time of interception, 4th respondent has allegedly found 3 bottles of IMFL liquor and three bottles of breezer each of 275 ml, which are admittedly under permissible limits as per G.O.Ms.No.411 dated 24.09.2019 and as per judgment rendered by this Hon’ble High Court in W.P.No.14386/2020. When the petitioner’s son has confronted that, a person travelling in a vehicle is permitted to carry 3 bottles of IMF of any size and upto 6 bottles of beer, the 4th respondent got enraged and instantly added another bottle of IMF liquor of Mansion house XO Brandy and taken a photograph of the vehicle, liquor bottles along with the driver making him to sit infront of the vehicle and circulated the photo in the Whatsapp group. The 4th respondent, without preparing Panchanama of the seizure in the presence of mediators or without preparing proceedings, instructed the 3rd respondent (who is not even present at the alleged scene of offence) on phone to register a crime against the driver. Accordingly, a crime in Cr.No.942/2020 was registered on the allegation that the vehicle was found carrying four bottles of IMFL liquor and three bottles of breezer each of 275 ml and seized the vehicle and arrested the driver by the 3rd respondent. Subsequently, the driver was released on 4 bail by furnishing sureties and security and the vehicle was released by the 2nd respondent on depositing the value of amount of Rs.1,80,000/- by way of fixed deposit in the name of 3rd respondent on 09.10.2020. 2. It is the further case of the petitioner that, on 19.05.2021, the petitioner received an information through Whatspp from the 3rd respondent stating that pursuant to the alleged show cause notice dated 14.12.2020, since no reply was received, an order of confiscation dated 10.02.2021 was passed. Astounded by the said information furnished through phone, the petitioner made an application to the 2nd respondent on 20.05.2021 seeking information with regard to alleged proceedings dated 10.02.2021 wherein a reply dated 21.06.2021 was received stating that though the 3rd respondent tried to serve the notice on the owner of the vehicle, due to covid pandemic situation the same could not be affected and that the show cause notice and the confiscation order was served through Whatsapp number to the petitioner’s husband and a screenshot dated 13.05.2021 was enclosed purportedly containing the show cause notice. The show cause notice dated 14.12.2020 was sent on 13.05.2021 through whatsapp number to the petitioner’s husband and order of confiscation dated 10.02.2021 was sent through whatsapp on 19.05.2021. Questioning the said confiscation proceedings dated 10.02.2021 which is passed without following procedure as contemplated under law, W.P.No.14927 of 2021 was filed. 3. The further case of the petitioner is that, since the driver/accused had died during trial, the case against him was abated and there is no crime 5 whatsoever is pending. As such, the petitioner approached the 2nd respondent to return the deposited amount on 09.10.2020. Since her efforts could not be fructified, she has issued a legal notice dated 11.04.2025 requesting the 2nd respondent to issue directions to return the deposited amount but it also went in vain. Therefore, questioning the action of the 2nd respondent in not returning the amount of Rs.1,80,000/- so deposited on 09.10.2020 in the name of 3rd respondent in connection with the Cr.No.942/2020 and for non-consideration of the legal notice dated 11.04.2025, a writ petition vide W.P.No.17952 of 2025 was filed. 4. The petitioner in both the writ petitions is one and same and since both the writ petitions are interlinked, they are heard together and are being disposed of by this common judgment. 5. Heard Sri Kochiri Rajasekhar, learned counsel for the petitioner, Sri Nagaraju Pullgura, learned Government Pleader for Prohibition and Excise and Sri Ajay Babu, learned Assistant Government Pleader for Home. 6. Learned counsel for the petitioner while reiterating the contents of the affidavit contended that, without issuing show cause notice to the owner of the vehicle (petitioner) as per Section 46A of the Excise Act, 1968, the respondent authorities have issued impugned confiscation proceedings dated 10.02.2021 stating that show cause notice was sent through whatsapp to the petitioner’s husband for which no reply was submitted, which is not at all acceptable. He further submitted that, the document leading to the charges, such as 6 panchanama was not even prepared nor supplied to the petitioner so as to enable the petitioner to file effective reply and even in the counter filed by the respondents, there is no whisper about the issuance of show cause notice to the petitioner and therefore, there is violation of fundamental principles of natural justice besides in violation of the procedure contemplated under the provisions of the Excise Act, 1968 and hence the impugned confiscation proceedings are liable to be set aside. Learned counsel for the petitioner further submitted that, since the accused in Cr.No.942/2020 had died, there is no crime pending, as such amount deposited with the 3rd respondent in connection with the said crime, has to be returned to the petitioner. In view of the same, a direction may be given in that regard. 7. Learned Assistant Government Pleader for Prohibition and Excise and Home Department, while justifying the impugned confiscation proceedings collectively submitted that, as against the confiscation proceedings, the petitioner has to approach Special Enforcement Bureau by filing an appeal but the petitioner has failed to do the same and straight away filed the present writ petition. However, if this court inclines to interfere with the impugned proceedings, liberty may be granted to the authorities to take steps in accordance with law. 8. Learned Assistant Government Pleader for Home submitted that, the seizure and confiscation proceedings are strictly in conformity with law as 7 such there is neither illegality nor procedural irregularity in passing the confiscation proceedings and accordingly prayed to dismiss the writ petition. 9. Perused the record and considered the submissions of learned counsel for respective parties. 10. The prime grievance of the petitioner is that the confiscation proceedings are issued without issuing show cause notice as per law which is in clear violation of principles of natural justice. A perusal of the reply dated 29.06.2021 received to the RTI application made by the petitioner indicates that, the copy of the show cause notice dated 14.12.2020 was sent to the petitioner’s husband on 13.05.2021 through whatsapp to the phone number 994922277 from the cell no.8919150022by the SHO, Kurnool Taluq UPS. Subsequently, the impugned confiscation proceedings dated 10.02.2021 were also issued through whats app only. 11. In this background, Section 46A of Andhra Pradesh Excise Act, 1968 is relevant and for quick reference it is extracted hereunder: 46A. Issue of show cause notice: No order of confiscation of any property shall be made under Section 46 unless the person from whom the said property is seized, (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property ; and (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice. 8 12. As per the above said provision, a show cause notice has to be issued in writing and an opportunity of making a representation in writing with reasonable time should be provided before issuing confiscation proceedings. In the present case, it can be clearly seen from the reply from the office of the Inspector of Police, Kurnool Taluk UPS that the show cause notice dated 14.12.2020 was sent through whatsapp to the petitioner’s husband which is not the acceptable mode as per the provision referred supra. Issuing show cause notice in such a manner is unsustainable. Similarly, issuing confiscation proceedings are equally unsustainable. In view of the same, this court is of the firm opinion that, the confiscation proceedings are passed in violation of fundamental principles of natural justice besides the provisions of the Excise Act, 1968 and they are liable to be set aside. 13. Accordingly, the writ petition vide W.P.No.14927 of 2021 is disposed of and the impugned confiscation proceedings vide Rc.No.522/SEB/2021 dated 10.02.2021 are hereby set aside. 14. Insofar as another writ petition is concerned, to entertain a writ of mandamus, it is a pre-condition that the aggrieved person should have approached the authorities competent against whom such a direction is sought for and the said representation/appeal acknowledged by the authorities competent must be available in the file of the authority concerned. This being the mandatory requirement for the purpose of entertaining a writ petition to direct the authorities concerned to consider the representation, this court is of the considered opinion that even the legal rights regarding the claim 9 established should also be set out in the writ petition. It can be seen that the petitioner has not made any representation to the authority concerned seeking release of deposited amount. In view of the same this is inclined to dispose the W.P.No.17952/2025 granting liberty to the petitioner to make a representation to authority concerned within two (02) weeks from the date of receipt of copy of this order. On receipt of the same, the authority concerned shall pass orders in accordance with law after hearing all the parties concerned within eight(08) weeks thereafter. Accordingly, both the writ petitions are disposed of. No costs. Miscellaneous applications, pending if any, shall stand closed. ____________________________ JUSTICE RAVI CHEEMALAPATI BRS