Prohibition & Excise and Sri Venkateswara Rao Gudapati – for & Anr. v. Sharana Gouda[1]

Prohibition & Excise and Sri Venkateswara Rao Gudapati – for the respondent. The appeal is directed against the order dated

31.12.2003 of the learned single Judge allowing the writ petition and setting aside the proceedings Rc.No. 1442/96/B4 dated

09.12.1997 of the 2n d appellant as confirmed by the order dated

16.2.1998 of the 1st appellant. The respondent was the owner of an Ambassador Car bearing Registration No.AP 31-T 2914. On 10.12.1996 the vehicle was intercepted by the Prohibition and Excise Sub- Inspector, Visakhapatnam and found to be illegally transporting 2000- I.D. liquor sachets. The vehicle was seized for having committed an offence under Section 8(b) of the A.P. Prohibition Act, 1996 and a case in that behalf was duly registered. Thereafter, proceedings for confiscation of the vehicle were initiated by the Deputy Commissioner of Prohibition and Excise, Visakhapatnam (2nd appellant herein). After a due process as mandated under Section 46 (a) of the A.P. Excise Act, 1968 by issuing a notice and receiving the explanation of the respondent herein who pleaded that he had no notice of the transportation of liquor by the passengers in the Ambassador Car, by the order dated 09.12.1997 the Deputy Commissioner of Prohibition and Excise, Visakhapatnam passed an order of confiscation of the vehicle.

The respondent-owner preferred an appeal there-against the Commissioner of Prohibition and Excise, who passed the order dated 16.2.1998 confirming the order of confiscation and rejected the appeal. Aggrieved thereby, the respondent-owner of the Car filed the writ petition, which was allowed on the ground that though the owner had submitted his explanation to the show-cause notice, no reasons were recorded and the order of confiscation was passed by the primary authority. The learned single Judge held that unless a finding is recorded regarding the involvement and knowledge of the owner of the vehicle in any excise offence, an order of confiscation cannot be passed and since in the order impugned no reasons are recorded, though the primary authority referred to the explanation filed by the petitioner, the order is unsustainable. The learned Government Pleader for Prohibition and Excise brings to the notice of this Court a judgment of the Supreme Court in Commissioner, Prohibition and Excise, A.P. and another v.

Sharana Gouda[1], wherein the provisions of Section 45(3) of the A.P. Excise Act, 1968, after amendment by A.P. Act 4 of 1994 fell for consideration. The Supreme Court held that Section 45 of the A.P. Excise Act, 1968, after its amendment by A.P. Act 4 of 1994 and omission of the proviso, does not require knowledge by the owner of the commission of an offence under the Excise Act, though the property involved in the offence is not under the active control of the owner. The omitted proviso read: “Provided that, if anything specified in clause (3) is not the property of the offender, it shall not be confiscated if the owner thereof had no reason to believe that such offence was being or was likely to be committed”. The Supreme Court accordingly held position has changed after the omission of the proviso and, therefore, mens rea of the owner is now not a statutory requirement. In the case on hand, though the order of confiscation does not record reasons, the factum of involvement of the Ambassador Car in the transportation of 2000 sachets I.D. liquor sachets is not in dispute.

The singular grievance of the owner is that his explanation that he had no knowledge of the transportation of the I.D. liquor has not been considered by the primary authority while ordering confiscation. In view of the omission of the proviso immunizing the owner from the consequence of confiscation where he has no knowledge of the involvement of his svehicle in violation of the provisions of the Excise Act, the plea that the owner had no knowledge would not avail to avoid confiscation. On the aforesaid premises, the order under appeal is liable to be interfered with and the judgment of the learned single Judge is accordingly set aside. The order of confiscation and its confirmation by the Commissioner of Prohibition and Excise suffer from no infirmity warranting interference. The writ appeal is accordingly allowed and the order the Deputy Commissioner of Prohibition and Excise, Visakhapatnam dated 09.12.1997 as confirmed by the order of Commissioner of Prohibition and Excise dated 16.2.1998 are upheld. There shall be no order as to costs. ______________________ JUSTICE GODA RAGHURAM ______________________ JUSTICE P. DURGA PRASAD Date: 09-6-2011. MVB. [1] (2007) 6 SCC 42