IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE NINTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.10149 of 2001 Between: L. Sreenivas Goud S/o Raja Goud R/o Kamareddy, Nizamabad Dist. ..... PETITIONER AND 1 The Commissioner For Prohibition & Excise Hyderabad, Andhra Pradesh. 2 The Deputy Commissioner for Prohibition & Excise Nizamabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, order or direction more particularly in the nature of Writ of Mandamus declaring order passed by the Respondent No.1 in Cr.No.1542/2000/DPE/B2, dt.2.3.2001 in confirming the order passed by the Respondent No.2, in Cr.No.B5/2744/98, dt.3.5.99 confiscating the lorry No.AP 25 T - 4736, as illeagl, bad, arbitrary and violation of principles of natural justice by setting aside the said order passed by the Respondent No.1 in the interest of justice and pass. Counsel for the Petitioner:MR.S.BHOOMA GOUD Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following: Form-NIC-OGS/WP{RAGHU} THE HONOURABLE SRI JUSTICE V.ESWARAIAH WRIT PETITION No.10149 of 2001 ORDER: The petitioner is the owner of the Lorry bearing No.AP 25T-4736. While so, the Deputy Commissioner of Prohibition and Excise, Nizamabad issued a show cause notice in CR B5/2744/98, dated 29.12.1998 to the petitioner, the owner of the vehicle and two others requiring them to submit explanation as to why the vehicle of the petitioner bearing No.AP 25T-4736 and 466.700 liters of toddy seized in Cr.No.28/98-99, dated 04.11.1998 of Station House Officer, Narayankhed which was produced before the Deputy Commissioner of Prohibition and Excise, Nizamabad alleging that the said vehicle involved in violation of the provisions of A.P.Excise Act, 1968 (hereinafter referred to as ‘the Act’), should not be proceeded with under Sec.46-A of the Act. It is stated that the petitioner made a representation on 29.04.1999 denying the allegations and stated that he has given the said lorry to T.C.S, Kalhair on hire for monthly charges to carry toddy and afterwards he came to know about the seizure of the lorry for illegal transportation of adulterated toddy in the lorry, and neither himself nor the lorry is nothing to do with the crime allegedly committed by the accused persons. The explanation was considered and the vehicle was ordered to be confiscated in favour of the Government under Sec.46-A of the said Act. As against the said order of confiscation of the Deputy Commissioner of Prohibition and Excise, Nizamabad dated 03.05.1999 in Proceedings Cr.No.B5/2744/98, the petitioner filed appeal before the Commissioner of Prohibition and Excise, A.P.Hyderabad and the Appellate Authority/Commissioner by order dated 28.04.2000 in CR.2281/DPE/99/B2, while setting aside the confiscation order of the Deputy Commissioner on the ground that the show cause notice was vague and no specific allegations were mentioned and the order was made in a routine manner, and accordingly, remitted back to the Deputy Commissioner of Prohibition and Excise, Nizamabad to issue a specific show cause notice and proceed. Aggrieved by the said order of the Commissioner, dated 28.04.2000, the petitioner filed WP.8342/2000 on the file of this Court, contending that the Commissioner did not go into the merits of the matter and it was not proper for him to remit the matter back to the Deputy Commissioner. The vehicle was seized for the transport of adulterated toddy and the petitioner is only the owner of the vehicle and he has nothing to do with the adulterated toddy and therefore, the Commissioner himself has to consider the merits of the case and disposed of. Accordingly, the order of the Commissioner was set aside and the matter remitted back to the Commissioner for fresh consideration and disposal on merits. Pursuant to the orders of this Court, the Commissioner disposed of the appeal on merits, dismissing the appeal on the ground that the vehicle was found transporting huge quantum of toddy illegally and the toddy was found adulterated with Chloral Hydrate, therefore, the vehicle having been used in committing an offence under the provisions of the Act, is liable for confiscation under Sec.45 of the A.P.Excise Act. The learned counsel appearing for the petitioner submits that the Appellate Authority cannot assume and presume that the vehicle was involved in illegal transportation of huge quantity of adulterated toddy as the show cause notice issued by the confiscating authority i.e. Deputy Commissioner do not disclose any such averments. The show cause notice issued by the confiscating authority was only with regard to involvement of the vehicle in violation of the provisions of the Act. What was the violation and what was the illegality were not at all indicated in the show cause notice. Therefore, I am of the opinion that the confiscation order of the Deputy Commissioner of Prohibition and Excise, confiscating the vehicle on the ground that the vehicle was involved in illegal transportation of adulterated toddy cannot be approved as it was not at all indicated in the show cause notice. The Commissioner is only Appellate Authority to consider the validity of legality of confiscation order, but he cannot either issue a fresh show cause notice or come to a conclusion that the vehicle was involved in transportation of adulterated toddy, in the absence of issuing show cause notice indicating the said violation. Having regard to the facts and circumstances of the case, I am of the opinion that the Appellate Authority in an appeal filed by the owner of the vehicle cannot rectify the defect committed by the original/confiscating authority and the said order is also not in conformity with letter and spirit of the order passed by this Court in W.P.8342/2000, dated 27.11.2000. As the Appellate Authority has failed to consider the contentions raised in the appeal grounds, and having regard to the facts and circumstances, the impugned order is set aside. The Bank Guarantee furnished by the petitioner shall be discharged. The Writ Petition is, accordingly, allowed. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 09.06.2008 Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Commissioner For Prohibition & Excise Hyderabad, Andhra Pradesh. 2 The Deputy Commissioner for Prohibition & Excise Nizamabad. 3.2CCs to 4.2CD copies