HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE G. V. SEETHAPATHY Writ Appeal No.781 of 2006 Between: The Deputy Commissioner of Prohibition & Excise, Karimnagar and others … Appellants And Ch.Muthaiah … Respondent ::JUDGMENT:: Counsel for the appellants: Government Pleader for Prohibition and Excise Counsel for the respondent: Sri K. M. Mahinder Reddy July 21, 2006 Per G.S. Singhvi, CJ Whether 60.11 quintals of black jagerry belonging to the respondent M/s. Chidura Muthaih and Company could be confiscated by Deputy Commissioner, Prohibition and Excise, Karimnagar (for short ‘the Deputy Commissioner’) by invoking the provisions of Sections 45 and 46 of Andhra Pradesh Excise Act, 1968 (for short ‘the 1968 Act’) is the question which arises for determination in this appeal filed under Clause 15 of the Letters Patent for setting aside order dated 7-12-2005 passed by the learned Single Judge in Writ Petition No.16379 of 2005 whereby she quashed the confiscation of black jaggery. The Facts: The respondent is engaged in the business of agricultural products like paddy, maize, jaggery etc. It is said to have sold 60.11 quintals of jaggery on credit to Laxmi Kirana Merchants, Kataram, Karimnagar District. The jaggery was transported in a hired Eicher van bearing Registration No. AP – 25 T – 8212. The vehicle was seized by the Station House Officer, Prohibition and Excise Station, Mancherial, Adilabad District on the premise that the jaggery was intended to be used for manufacturing I.D liquor. After two months, the Deputy Commissioner issued notice dated 20-1-2004 to the respondent requiring it to show cause against the proposed confiscation of the jaggery and vehicle used for its transportation on the ground of violation of Section 34 (e) read with Sections 45 and 46 of the 1968 Act. In the notice, it was alleged that the jaggery was being transported to Burgupalli Thanda, Mancherial Mandal of Adilabad District for the purpose of manufacturing intoxicant. In its reply dated 25-3-2004, the respondent took up the stand that the jaggery in question was sold on credit to Laxmi Kirana Merchants, Kataram and it was being transported with all valid documents. After considering the same, the Deputy Commissioner passed order dated 27-5-2004 for confiscation of the black jaggery and vehicle. The appeal preferred against the order of confiscation was dismissed by the Commissioner, Prohibition and Excise, Andhra Pradesh vide his order dated 11-2-2005. Paragraphs 5 and 6 of that order are reproduced below: “5. A perusal of the records reveals that the vehicle was involved in transportation of 60.11 quintals of Black Jaggery. As per way bill, the consignment of 60.11 quintals of jaggery was to be transported from Kamareddy to M/s.Laxmi Kirana Merchant, Kataram of Karimnagar District. But, the vehicle was caught by the Prohibition & Excise Inspector, Mancheryal while transporting 60.11 quintals of black jaggery in 190 gunny bags in the limits of Burugupally Thanda, Jaipur Mandal, Adilabad District. The consignment was diverted instead of taking to the destination covered under the bills, therefore, the contention that the driver was new and lost the way is not tenable and only created to escape the liability. The way bill issued by the Commercial Tax Department relates to jaggery but not black jaggery, hence the contention that the contraband was covered with valid bills is not tenable. The accused Srinivas in the panchanama stated that he was transporting the jaggery for supplying to the I.D. manufacturers. All the circumstances clearly proves that the black jaggery was being transported for supplying to I.D. manufacturers. 6. The Full Bench of the Hon’ble High Court in W.P.No.19706/2000 held that the authorities can register a case U/s.34 (e) of A.P. Excise Act, 1968, if it is reasonably believed that the Black Jaggery is meant for preparation of I.D. Liquor. The Chemical Examiner analysed samples and reported that the sample contains sugars and extraneous matter. It is jaggery fit for fermentation producing alcohol unfit for consumption. The Sub-Divisional Proh. & Excise Officer reported that the Burugupalli Thanda is notorious for illicit distillation and that the accused were transporting the black jaggery to the I.D. Distillers of Burugupalli Thanda.” The respondent challenged the appellate order in Writ Petition No.9492 of 2005. The same was disposed of by the learned Single Judge on 26-4-2005 with a direction to the Commissioner to reconsider the case of the writ petitioner in accordance with Para 4 (iii) of Circular No.4294/DPE/2001/CS dated 3-11-2002. Thereafter the Deputy Commissioner, passed order dated 30-6-2005 whereby he held that the case of respondent does not fall within the parameters of Para 4 (iii) of Circular dated 3-11-2002 because the consignment was diverted with a mala fide intention of supplying the black jaggery to the I.D. liquor manufacturers of Burugupally Thanda, which is notorious for distillation of I.D. liquor. Aggrieved by the refusal of the Deputy Commissioner to release the jaggery, the respondent filed Writ Petition No.16379 of 2005. In the affidavit filed by the representative of the petitioner Shri Chidura Raji Reddy, it was pleaded that the jaggery was sold to a bona fide purchaser under valid documents and, therefore, the Deputy Commissioner did not have the jurisdiction to confiscate the same. It was further pleaded that there was no basis for recording a finding that the jaggery in question was meant to be used for manufacture of I.D. liquor. In the counter-affidavit filed by Shri M. Mohan Reddy, Assistant Prohibition & Excise Superintendent, Mancherial, it was averred that the black jaggery and van were seized by the Station House Officer, Mancherial at the outskirts of Burugupally Thanda, Jaipur Mandal. The jaggery was meant to be transported from Kamareddy to Kataram, but it was found near Burugupally Thanda of Adilabad District. On interrogation, the servant of the consignor, namely, G. Srinivas, who accompanied the consignment disclosed that on reaching Godavarikhani, he received telephonic message on cell phone from Sammi Reddy resident of Bheemaram who instructed to bring the consignment to Burgupally Thanda by saying that he will be waiting at Godavari Bridge. However, when the van reached the bridge, Sammi Reddy was not found and, therefore, the consignment was being supplied to I.D. manufacturers in Burugupally Thanda. Sri G. Srinivas disclosed that on an earlier occasion also he supplied black jaggery in Burugupally Thanda to I.D. manufacturers. Shri M.Mohan Reddy further averred that as per Rc.No.A/2/04 dated 21-2-2004 sent by Sub- Divisional Prohibition and Excise Officer, Mancherial, the black jaggery was meant to be supplied to I.D. manufacturers at Burugupally Thanda. Therefore, it was confiscated after giving notice and opportunity of hearing to the consignor. According to Shri Mohan Reddy, the chemical analysis of the sample of black jaggery revealed that it contained material fit for manufacture of intoxicant. In the reply affidavit filed by him, Shri Chiduri Raji Reddy reiterated that the consignment of jaggery could not have been confiscated because the same was not meant for manufacture of intoxicant. In an additional affidavit dated 23-11-2005 filed by him, Shri Chiduri Raji Reddy pleaded that the Deputy Commissioner had deliberately refused to release the jaggery and vehicle though in similar cases order of release had been passed. The learned Single Judge relied on the judgment of a Single Bench in Ulli Bhaskar v. State of A.P.[1] and held that mere possession of black jaggery even with an intention to manufacture illicit liquor cannot be treated as an offence under Section 34 (e) and, therefore, the confiscation of jaggery is legally unsustainable. Learned Government Pleader for Prohibition and Excise assailed the order under challenge and argued that the learned Single Judge committed a serious error by nullifying the order of confiscation without even recording a finding that the same suffers from any jurisdictional infirmity or error of law apparent on the face of the record. She further argued that the ratio of the Full Bench judgment in Ganesh Traders v. District Collector, Karimnagar[2] is squarely applicable to the case of the respondent and the Deputy Commissioner did not commit any illegality by ordering confiscation of the black jaggery because the same was intended to be used for manufacture of intoxicant. She also pointed out that the plea set up by the respondent about mistaken diversion of the route by the driver was rightly rejected by the Deputy Commissioner because the route from Kamareddy to Kataram is on the southern side of Karimnagar whereas Burugupally Thanda in Jaipur Mandal of Adilabad District is on northern side. The learned Government Pleader argued that the interpretation placed by the learned Single Judge on Section 34 (e) in Ulli Bhaskar v. State of A.P. (supra) runs contrary to the majority of the Full Bench judgment in Ganesh Traders v. District Collector, Karimnagar (supra) and, therefore, the same could not have been made basis for nullifying the order of confiscation. Learned counsel for the respondent supported the impugned order and argued that the action of the respondents to confiscate black jaggery was per se illegal and arbitrary. He submitted that the jaggery was sold to a bona fide purchaser and was not meant for manufacture of intoxicant. We have thoughtfully considered the respective submissions. Section 13, which contains prohibition against manufacture etc. of excisable articles, Section 34, which prescribes penalties for illegal import, export, transport, manufacture etc. of intoxicants in violation of the provisions of the Act, Sections 45 and 46, which deal with confiscation of certain things, read as under: “13. Manufacture etc., of excisable articles prohibited except under a licence: (1) No person shall, _ (a) manufacture or collect an intoxicant; (b) cultivate hemp plant; (c) tap an excise tree or draw toddy from any such trees; (d) construct or work a distillery or brewery; (e) bottle liquor for sale; or (f) use, keep or have in his possession, any materials, stills, utensils, implements of apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy; except under the authority and subject to the terms and conditions of a licence granted by such officer, not below the rank of an Excise Superintendent, as may be prescribed : Provided that the provisions of this sub-section insofar as they relate to establishing, continuing or licensing a distillery shall apply only to those distilleries which manufacture spirits for potable purpose and regulatory provisions relating to regulation and supervision, shall be applicable to all distilleries. (2) A licence granted under this section shall extend and cover servants and other persons employed by the licensee and acting on his behalf. (3) Notwithstanding anything in sub-section (1) the Government may, by notification, direct that in such areas as may be specified therein it shall not be necessary to take out a licence for the manufacture of liquor for bona fide home consumption of the manufacturer. 34. Penalties for illegal import etc. Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or (b) taps any excise tree; or (c) draws toddy from any excise tree; or (d) constructs or works any distillery or brewery; or (e) uses, keeps, or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy; or (f) bottles any liquor for purposes of sale; or (g) buys any intoxicant; or (h) possesses any material or film either with or without Government logo of any district in the State of Andhra Pradesh or any other State or wrapper or any other thing in which intoxicants can be packed or any apparatus, or implement or machine for the purpose of packing any intoxicant; (i) removes any intoxicant from any distillery, brewery or warehouse licenced, established or continued under this Act; shall on conviction be punished : (1) in the case of an offence falling under clause (a),_ (i) where the intoxicant involved in the offence is less than such quantity as may be notified in this behalf with imprisonment for a term which shall not be less than six months but which may extend upto three years and with fine which shall not be less than rupees five thousand but which may extend upto rupees twenty thousand; (ii) where the intoxicant involved in the offence is not less than the quantity notified as aforesaid with imprisonment for a term which shall not be less than one year and which may extend upto five years and with fine which shall not be less than rupees ten thousand but which may extend upto rupees one lakh; and (2) in the case of an offence other than an offence falling under clause (a) with imprisonment which shall not be less than six months but which may extend to one year and with fine which may extend upto rupees ten thousand. 45. Liability of certain things to confiscation: Whenever any offence has been committed, which is punishable under this Act, following things shall be liable to confiscation namely: (1) any intoxicant, materials, still, utensil, implements or apparatus in respect of or by means of which such offence has been committed; (2) any intoxicant lawfully imported, transported, or manufactured, had in possession, sold or bought along with, or in addition to, any intoxicant liable to confiscation under clause (1); and (3) any receptacle, package, or covering in which anything liable to confiscation under clause (1) or clause (2) is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, vessel, raft or other conveyance used for carrying the same; [ x x x x ] 46. Confiscation by Excise Officers in certain cases: (1) Notwithstanding anything contained in this Act or any other law for the time being in force, where anything liable for confiscation under Section 45 is seized or detained under the provisions of this Act, the Officer seizing and detaining such property shall, without any unreasonable delay, produce the said seized property before the Deputy Commissioner of Prohibition and Excise who has jurisdiction over the area. (2) On production of the said seized property under sub-section (1) the Deputy Commissioner of Prohibition and Excise if satisfied that an offence under this Act has been committed, may, whether or not a prosecution is instituted for the commission of such an offence, order confiscation of such property. (3) While making an order of confiscation under sub-section (2), the Deputy Commissioner of Prohibition and Excise may also order that such of the properties to which the order of confiscation relates which in his opinion cannot be preserved or are not fit for human consumption be destroyed. (4) Where the Deputy Commissioner of Prohibition and Excise after passing an order of confiscation under sub-section (2) is of the opinion that it is expedient in the public interest so to do, he may order the confiscated property or any part thereof to be sold by public auction or dispose of departmentally. (5) The Deputy Commissioner of Prohibition and Excise shall submit a full report of all particulars of confiscation to the Commissioner of Prohibition and Excise within twenty-four hours of such confiscation. (6) The Deputy Commissioner of Prohibition and Excise shall, for the purposes of this Act have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when making enquiries under this section in respect of the following matters, namely: (a) receiving evidence on affidavits; (b) summoning and enforcing the attendence of any person and examining him on oath; and (c) compelling the production of documents.” An analysis of the provisions reproduced above makes it clear that manufacture of an intoxicant except under the authority and subject to the terms and conditions of a licence granted by the competent authority is prohibited (Section 13). A person who violates this provision is liable to be convicted and punished (Section 34). Clause (e) of Section 34 declares that whatsoever uses, keeps or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy can be proceeded against and punished. Sections 45 (1) provides for confiscation of any intoxicant, materials, stills, utensils, implements or apparatus in respect of or by means of which any offence has been committed under the Act. Section 45 (2) provides for confiscation of any intoxicant lawfully imported, transported, or manufactured and Section 45 (3) provides for confiscation of any receptacle, package or covering in which anything liable to confiscation under sub-sections (1) and (2) is found. Section 46 (1), which begins with a non-obstante clause, empowers the Deputy Commissioner of Prohibition and Excise to order confiscation of the property which is subject matter of offence. The above noted provisions came up for consideration before the Full Bench of this Court in Ganesh Traders v. District Collector, Karimnagar (supra). By majority, the Full Bench laid down the following propositions: a) The provisions of the A. P. Excise Act including Sections 13 (f) and 34 (e) should be interpreted with reference to the objects of the Act and penal provisions dealing with excise offences should also receive broader interpretation having regard to the fact that the Excise Act is intended to achieve partially the objective of Article 47 of the Constitution of India; b) Having regard to the provisions of Sections 13, 34 and 53 and 55 of the Excise Act, we must hold that if Commissioner, Collector, Police Officer or Excise Officer “has reason to believe" that black jaggery (material) is likely to be used for manufacture of ID liquor the same can be seized and persons can be arrested and subject to facts and circumstances of each case including any report of the chemical examiner a charge sheet can be filed under Section 34 (e) of the Excise Act. c) In a situation such as (a) and (b) above, if the circumstances so warrant the person/accused is entitled to approach under Section 482 of Cr. P. C. and-or Article 226 of the Constitution of India and seek quashing of proceedings provided his case comes within well-settled principles for quashing FIR, charge sheet or criminal case. However, a Writ Petition in such an event at the stage of investigation is not permissible when there is prima facie material to show that black jaggery is not fit for human consumption and was intended for manufacture of ID liquor. d) If the FIR shows the ingredients of offence under Section 34 (e) read with Section 13 (f) of the Excise Act, a person cannot be heard to say in High Court that he is carrying on business or transporting black jaggery either because he is an agriculturist or businessman. All such pleas are to be raised before appropriate criminal Court.” Goda Raghuram, J, who constituted the majority, emphasized the need of maintaining the balance between the rights and liberties of the manufacturers and traders and the equally cherished rights to life and healthy existence of the general population, and observed: “Even this processed interpretation may be productive of substantive inconvenience to the manufacturers, traders and dealers of “black Jaggery" as it is only on analysis of a specific sample of the material that the conclusion is possible that it is “black Jaggery" that has no other use except potentially for manufacture of an intoxicant. But in my considered view this is not a disproportionate burden on the manufacturers or traders of “black Jaggery" that outweighs the clear and present danger of leaving this material totally unregulated. “Black Jaggery" which has no other legitimate, established or demonstrable purpose and utility except for the manufacture of an intoxicant, is comprehended within the meaning of the expression “materials" in Sec. 13 (f) and as such is susceptible to the regulatory framework and to the penalties set out in the 1968 Act including Sec. 34 thereunder. As potential hardship and grave inconvenience would ensue in the absence of a clear prescription as to what constitutes “black Jaggery" within the meaning of the 1968 Act, the State Government is directed to prescribe, by an appropriate instrument, the description, character and composition of “black Jaggery" that would have no other use except for the manufacture of an intoxicant; prescribe procedures for prompt and speedy analysis of “black Jaggery" seized, duly specifying the authority or agency for conduct of such analysis; prescribe the time frame within which the report of such an analysis should be submitted to the regulatory agency and shall further specify that on such report recording that the commodity seized is not “black Jaggery" within the meaning of the 1968 Act as interpreted by this Court above, the seized material and the vehicles carrying the same shall be released forthwith and further proceedings dropped. As “black Jaggery" in general may include 'black Jaggery" within the meaning of the 1968 Act and as the question is whether a specific sample of Black Jaggery includes “black Jaggery" as comprehended within the meaning of the 1968 Act and as this identification is possible only after the analysis of the sample, I hold that the satisfaction of the regulatory agency/authority under the Act that a specific matrial is “black Jaggery" within the meaning of this Act, would justify the seizure thereof for the purpose of further proceedings, which shall of course, be subject to the result of the analysis.” V.V.S. Rao, J, who was the other member of the majority, observed: “Fine quality jaggery is usually golden-yellow to light brown in colour, free from dirt, other extraneous matter like straw or sand and any other material deleterious to health (Indian Standard Specification 12923 of 1990, para 4.1). Black jaggery is not fit for human consumption and being left over residue settled at the bottom after removing fine quality jaggery, consists of a lot of dirt, sand, straw and other harmful materials deleterious to health. As per a note placed before us by the learned Government Pleader for Excise, black jaggery is mixed with water, molasses and ammonium sulphate. Dangerous chemicals like alum are also added. Fermentation of alcohol is done in unscientific fashion and in unhygenic conditions.” While rejecting the argument that if mere possession of the ingredients like black jaggery used in manufacturing I.D. liquor is made punishable under Section 13 read with Section 34, then it will cause great hardship to lorry transporters and small businessmen who deal in black jaggery, V.V.S.Rao, J observed: “If a substance or material including some chemicals 'can only be used’ for manufacturing intoxicating substances and nothing else, we fail to understand as to how the principle of res ipsa loquitur is not attracted. Nobody keeps black jaggery only for the sake of keeping. If it is 'reasonably believed" that black jaggery is 'kept' for manufacturing of ID liquor, the authorities can register a case under Section 34 (e) of the Excise Act.” I n Ulli Bhaskar v. State of A.P., (supra), the learned Single Judge referred to the language of Section 34 (e) of the 1968 Act and held as under: “So, it is clear that possession must be “for the purpose of manufacturing of an intoxicant”. It is well known that there are four stages in the commission of an offence, i.e., (i) forming an intention to commit the offence, (ii) making preparations therefor, (iii) making an attempt to commit the offence and (iv) actually committing the offence. Since section 34 (e) of the Excise Act speaks about the person being in possession “for the purpose of manufacturing an intoxicant”, it is clear that the offence is committed only when ‘manufacturing’ is going on, and not before the manufacture, because even to constitute an attempt, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances, and not necessarily in isolation, an intention, as distinguished from mere desire or object to commit a particular offence (see State of Maharastra v. Mohd Yakub, AIR 1980 sc 1111 at 1117 and