APHC010257882021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY ,THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 4191/2021 Between: Neela Bhukya @ Leela Bhukya and Others ...PETITIONER/ACCUSED(S) AND The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused(S): 1. R SIVA SAI SWARUP Counsel for the Respondent/complainant: 1. PUBLIC PROSECUTOR (AP) The Court made the following: The Court made the following Order: This criminal petition is filed under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”) seeking to quash the proceedings in FIR.No.211 of 2021, before Penuganchiprolu Police Station, Krishna District for the offence punishable under Section 34(a) of the A.P.Excise Act. 2. The petitioners herein are the accused Nos.2 and 3, who are residents of Telangana. The Station House Officer, Penuganchiprolu Police Station had registered a case in FIR No.211 of 2021 for the offence punishable under Section 34 (a) of the A.P. Excise Act, 1968, against the petitioners and others basing on the mediator’s report. As per the mediator’s report, on 23.06.2021, the Station House Officer, Penuganchiprolu Police Station, on receipt of credible information about illegal transportation of 610 liquor bottles in RENAULT KWID car from Telangana to Andhra Pradesh, after securing the information from the mediators, proceeded to Penuganchuprolu Mandal along with his staff and conducted vehicle check. While conducting the raid, at about 17.00 p.m., a Renault Kwid car was proceeding from Telangana to Andhra Pradesh and the Station House Officer stopped the vehicle for checking and found that there were totally 5 persons out of whom 4 men and 1 woman were present. During the check, suddenly all the five accused, who sat in the car, tried to escape from the place, but when the police caught them and enquired they confessed that they were the residents of Telangana and were working as coolies, they used to purchase liquor bottles from Telangana State and transport the same to Andhra Pradesh for selling them at higher prices. On such confession, the police found 610 bottles of Old Adminirol 180ML and seized the bottles along with Renault Kwid vehicle under the cover of mediator’s report. Basing on the said mediator’s report, the present crime has been registered against the petitioners/Accused Nos.2 & 3 and others. 3. Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent. 4. Learned counsel for the petitioner, among other things, mainly challenges the validity of criminal proceedings launched against the petitioner on the ground of non-compliance with the procedure contemplated under Section 55 of the A.P. Excise Act, 1968. He submits that before conducting search, the respondent-police ought to have obtained warrant as per Section 54 of the A.P. Excise Act, 1968 or otherwise, ought to have followed the procedure contemplated under Section 55 of the A.P. Excise Act, 1968, which the complainant-police did not do so. He further submits that the failure on the part of the respondent-police in following the procedure contemplated under the provisions of Section 55 of the Act, which is mandatory in nature, vitiates the entire proceedings against the petitioner. In support of his contention, the learned counsel for the petitioner relied upon a decision reported in K.L. Subbayya v. State of Karnataka1, to contend that non-compliance with the provisions of Section 54 of the A.P. Excise Act, before proceeding to conduct a search by an officer and without prior recording of the grounds for his belief that an offence under the Act is likely or being committed, renders the entire 1(1979) 2 SCC 115 search without jurisdiction and as a corollary, it vitiates the launching of criminal proceedings and on that ground alone, he prays for quashing the proceedings initiated against the petitioner/A.3. 5. On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent, would contend that on reliable information about illegal transportation of liquor Station House Officer, Penganchiprolu Police Station, conducted raid and seized the material, and therefore, the police followed the procedure as contemplated under law and there are no circumstances to quash the proceedings as prayed for. 6. When the matter came up for admission on 27.07.2021, this Court was pleased to pass the following Interim Order: “Therefore, in the said facts and circumstances of the case, there shall be interim stay of further proceedings pursuant to registration of F.I.R. in Crime No.211 of 2021of Penuganchiprolu Police Station, Krishna District, till the next date of hearing” 7. Having heard the submissions made by the learned counsel for the parties and on perusal of the material available on record, the point that arises for consideration is: “Whether the proceedings initiated against the petitioners/A.2 & A.3 in FIR.No.211 of 2021, before Penuganchiprolu Police Station, Krishna District for the offence punishable under Section 34(a) of the A.P.Excise Act., are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” 8. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice. 9. Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: 10. In “R.P. Kapur v. State of Punjab2”, the Apex Court laid down the following principles: “(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; 2AIR 1960 SC 866 (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.” 11. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in “Mrs.Dhanalakshmi v. R.Prasanna Kumar3” 3 AIR 1990 SC 494 12. In “State of Haryana v. BhajanLal4” the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 4 1992 Supp (1) SCC 335 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 13. Keeping in view the above principles, I would like to examine the case on hand. 14. In the case on hand, the petitioners mainly challenges the validity of criminal proceedings launched against them on the ground of non-compliance with the procedure contemplated under Section 55 of the A.P. Excise Act, 1968 and before conducting search, the respondent-police ought to have obtained warrant as per Section 54 of the A.P. Excise Act, 1968 or otherwise, they ought to have followed the procedure contemplated under Section 55 of the A.P. Excise Act, 1968. He further submits that the failure on the part of the respondent-police in following the procedure contemplated under the provisions of Section 55 of the Act, which is mandatory in nature, vitiates the entire proceedings against the petitioners as without jurisdiction. It is relevant to refer the provisions of Section 53 and 55 of the A.P. Excise Act, which reads as under: 53. Powers to arrest without warrant, to seize articles liable for confiscation and to make searches. (1)Any officer of the Government employed in the Prohibition and Excise, Police or Revenue Department of the State subject to such restrictions as may be prescribed and any other person duly empowered, may,-(a)arrest without warrant any person for an offence punishable under Section 27 or Section 34 or Section 35 or Section 36 or Section 37 or Section 37-A or Section 40-A or Section 50 or Section 50-A;(b)seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act, or and other law for the time being in force, relating to Excise, revenue; and(c)detain and search any person upon whom and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be. (2) When any person is accused or is reasonably suspected of committing an offence under this Act, other than an offence under Section 34, Section 35, Section 36, Section 37, Section 37-A or Section 50 and on demand of any such officer as aforesaid, refuses to give his name and residence or gives a name and residence which such officer has reason to believe is false, he may be arrested by such officer in order that his name and residence may be ascertained. 55. Power to search without warrant. 55. Power to search without warrant. - Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,- (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. A reading of the provisions extracted above envisages that as per Section 55 of the Act, whenever the Commissioner or a Collector or Executive Magistrate or any police officer not below the rank of an officer-in-charge of a police station or any prohibition and Excise Officer not below the rank of an Excise Sub-Inspector of any Special Enforcement Bureau officer, has reason to believe that an offence under Section 34,Section 35, Section 36, Section 37, Section 37-A has been, is being or is likely to be committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may, after recording the grounds of his belief, detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid. As such, before conducting a search, the police must obtain warrant or must record reasons for conducting the search.In the case on hand, it is admitted fact that the Sub-Inspector of Police, Vetapalem, who searched the car of the petitioner, had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Section 54 were not at all complied with.Further, by virtue of Rule 2 (3) of A.P. Excise (Powers and Duties) Rules, 1972 (any officer of the Revenue Department of and above the rank of Tahsildar and) every Police Officer of and above the rank of Deputy Superintendent having jurisdiction over the place, is empowered to exercise the powers under Section 52 of the Act. However, by virtue of G.O.Ms.No.515 Revenue (Ex.II) Department, dated 28.08.2002 the said sub-rule was omitted. Further, by virtue of Rule 3 of the same rules any Excised Officer not below the rank of Sub-Inspector of Police or any Police Officer of and above the rank of an Inspector and any officer of the Revenue Department of and above the rank of a Deputy Tahsildar having jurisdiction over the place may seize such material. 15. In the instant case, as the Station House Officer, who conducted search and seized the contraband from the car of the petitioners, had not recorded any ground on the basis of which he had a reasonable belief that an offence under the Act was being committed, before proceeding to search the car. Thus, there is no hesitation to hold that the Station House Officer, who conducted search, had not followed the mandatory provisions as contemplated under the Section 55. Consequently, for these lacunae, the search and seizure conducted by the police is vitiated, as such continuation of criminal proceedings launched against the petitioners is an abuse of process of court and hence, the same are liable to be quashed. 16. Accordingly, the Criminal Petition is allowed and the proceedings initiated against the petitioners/accused Nos.2 & 3 only in FIR.No.211 of 2021, before Penuganchiprolu Police Station, Krishna District, are hereby quashed. Consequently, miscellaneous applications pending if any, shall stand closed. ___________________ JUSTICE V.SUJATHA Date: 25.02.2025 SRT 285 THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 4191/2021 Date: 25.02.2025 SRT