APHC010341602021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] MONDAY ,THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 5260/2021 Between: Pampana Naga Raju ...PETITIONER/ACCUSED AND The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused: 1. KAMBHAMPATI RAMESH BABU Counsel for the Respondent/complainant: 1. PUBLIC PROSECUTOR (AP) The Court made the following: 2 VS,J Crlp_5260_2021 ORDER: This criminal petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the proceedings in F.I.R.No.128 of 2021, on the file of Special Enforcement Bureau SEB Station Eluru, West Godavari District. 2. The petitioner herein is the sole accused and the sole respondent is the defacto complainant. The case of the prosecution is that on 26.04.2021 at about 05.00 p.m., the police and staff on reliable information, rushed near the petitioner’s house situated on the right side of main road, Palagude village, Eluru Mandal and found one person with mica bag who escaped upon seeing the police leaving the mica bag, in which the Police found 9 liquor bottles of 180ML.The SEB Sub-Inspector has seized the contraband property from the scene of offence. Upon enquiry the Police came to know that the person who absconded is the petitioner herein and have registered a case in Crime No.128/2021 for the offences punishable under Section 34(a) of A.P. Excise Amendment Act, 2020. With a plea to quash the said proceedings, the petitioner has filed the present petition. 3. During the course of arguments, learned counsel for the petitioner vehemently argued that the entire allegations made by the Police on the petitioner are all false and concocted with an intention to implicate the petitioner at the instigation of local ruling party leaders. The alleged search and seizure was conducted without even complying the mandatory procedure prescribed under Section 100(4) of Cr.P.C. Before conducting search, the police ought to have obtained warrant as per Section 54 of the Andhra Pradesh Excise Act, 1967 or ought to have followed the procedure contemplated under Section 55 of the Act, 1968 as per which it is mandatory to record the grounds of belief before detain and search on a reason to believe that an offence under Section 34 is being or is likely to be committed and a search warrant cannot be obtained without affording the offender an 3 VS,J Crlp_5260_2021 opportunity of escape or concealing evidence of the offence. Without following the aforesaid procedure, the police drafted mediators report with false allegations and registered a false case against the petitioner without even following the mandatory provisions under law. Hence requested to quash the proceedings in F.I.R.No.128 of 2021, on the file of Special Enforcement Bureau SEB Station Eluru, West Godavari District. 4. Learned Assistant Public Prosecutor contended that the allegations levelled against the petitioner would constitute offence punishable under Section 34(a) of A.P. Excise Amendment Act, 2020 and that the Police have followed the due procedure contemplated under law,therefore, the proceedings against the petitioner cannot be quashed. Hence, prayed to dismiss the petition. 5. When the criminal petition came up for hearing on 20.09.2021, this Court has passed the following interim order: “….there shall be interim stay of further proceedings pursuant to registration of F.I.R in Crime No.128 of 2021 of Special Enforcement Bureau SEB Station, Eluru, West Godavari District, till the next date of hearing.” 6. Having heard the submissions made by the learned counsel representing both parties and on perusal of the material available on record, the point that arises for consideration is as follows: “Whether the proceedings against the petitioners in F.I.R.No.128 of 2021, on the file of Special Enforcement Bureau SEB Station Eluru, West Godavari District, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” 7. 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 4 VS,J Crlp_5260_2021 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. 8. 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: In “R.P. Kapur v. State of Punjab1”, 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; (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. 9. 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 1AIR 1960 SC 866 5 VS,J Crlp_5260_2021 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 Kumar2” 10. In “State of Haryana v. Bhajan Lal3” 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 2 AIR 1990 SC 494 3 1992 Supp (1) SCC 335 6 VS,J Crlp_5260_2021 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. (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. 11. Keeping in view the above principles, I would like to examine the case on hand. 12. It can be seen that on 26.04.2021 as per instructions of SEB Assistant Commissioner, Eluru, the SEB Sub-Inspector, DTF, Eluru along with staff, while conducting raids in the night have found the accused with a mica bag, who after seeing the Police escaped that place leaving the mica bag consisting 9 bottles of liquor each of 180ml. The Police upon enquiring the gathered public, got to know that the absconded person is the petitioner herein.The SEB Sub-Inspector has seized the contraband property from the scene of offence and accordingly, registered a case against the petitioner herein. The petitioner herein mainly challenged the validity of the criminal proceedings launched against him on the ground of non-compliance with the procedure contemplated under Section55 of the A.P. Excise Act.For better appreciation, Section 55 of the A.P. Excise Act are extracted hereunder: “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 excise officer not below the rank of Prohibition and Excise Sub- Inspector has reason to believe that an offence under section 34, section 35, section 36 has been, is being or is likely to be, committed, and that a search 7 VS,J Crlp_5260_2021 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. 13. The Hon’ble Supreme Court in similar circumstances in K.L. Subhayya V. State of Karnataka4, dealt with the case arose under Section 54 of the Mysore Excise Act where the Inspector who searched the car of the appellant had not made any record of any grounds 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. Section 54 of the Mysore Excise Act is analogous to Section 34 of the A.P. Excise Act, The Supreme Court in the aforesaid judgment held that the non-recording the grounds 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 renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. It was further observed that both Section 53 and 54 of Mysore Excise Act contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment. 14. Even in the instant case, the SEB Sub-Inspector, DTF, Eluru has not recorded the grounds before such search and seizure for his belief that an offence under Sections 34, 35, 36, 37-A has been, is being or likely to be committed by the petitioner and that the search warrant cannot be obtained without affording the offender an opportunity of escape or concealing the evidence of the offence. As such, there is no hesitation in holding that the officials have given a total go-bye to the aforementioned mandatory provisions 4 AIR 1979 SC 711 8 VS,J Crlp_5260_2021 and therefore, the ratio laid down in Subhayya’s Case (4th supra) squarely applied to the present facts and circumstances of the case. 15. Accordingly, this criminal petition is allowed and the proceedings in FIR.No.128 of 2021 on the file of Special Enforcement Bureau SEB Station, Eluru, West Godavari District are hereby quashed. The miscellaneous petitions pending, if any, shall also stand closed. __________________ JUSTICE V.SUJATHA 17.02.2025 Gss