IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 6902 of 2005 Between: Md.Azhar, S/o.Asgar Ali, R/o.5-127, Subhashnagar, Kalwakurthy, Mahaboobnagar District. ..... PETITIONER AND 1 The Commissioner of Prohibition & Excise, A.P.at Hyderabad. 2 The Deputy Commissioner of Prohibition & Excise, Mahaboobnagar Division, Mahaboobnagar. 3 The Station HOuse officer, Prohibition & Excise Station, Devarkonda, Nalgonda Dist. ....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 issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of the 1st and 2nd respondents in passing the impugned orders vide Cr.No. 654/2004/CPE/D4 dt.23-09-2004 and Cr.No.B2/1204/02 dt.12- 11-2003 respectively as arbitrary, illegal and violative of Article 14, 19 (1)(g) and 21 of Constitution of India and pass such other order or orders as this Hon'ble court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: MR.HARENDER PRASAD Counsel for the Respondents : GP FOR PROHIBITION & EXCISE The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.6902 OF 2005 ORDER: The petitioner is owner of Jeep bearing No.AP 28 A 7450. Sub Inspector of Police, P.S., Dindi, seized the vehicle on 25.11.2002 at 11.30 hours. The jeep was found transporting 5 liters of ID liquor, ﬁve 5 kgs of alum and 500 kgs of black joggery. Therefore, a case under Section 34(e) of Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity) and Section 8(b)(i) of Andhra Pradesh Prohibition Act, 1995 (Prohibition Act, for brevity) was registered. After receiving the report, second respondent issued show cause notice to petitioner to explain us as to why vehicle should not be conﬁscated to Government under Section 13-A of the Prohibition Act and Section 46-A of Excise Act. The petitioner submitted explanation pleading the ignorance and lack of knowledge. Not satisﬁed with the same, by order, dated 12.11.2003 second respondent ordered conﬁscation. Petitioner then ﬁled appeal before ﬁrst respondent, who dismissed appeal on 23.09.2004. The same is assailed in writ petition. Learned counsel for petitioner pressed only ground that in the absence of mens rea and knowledge of commission of oﬀence, Section 45 of Excise Act cannot be used for confiscating the vehicle. Whether mens rea is a condition precedent for conﬁscation of a motor vehicle or a vehicle involved in commission of oﬀence under the Act? A Full Bench of this Court in P.Gokul Anand v Commissioner of Prohibition and Excise[1] and V.Narayana Rao v State of Andhra Pradesh[2] took a view that there cannot be any order of conﬁscation of a vehicle involved in commission of excise oﬀence when knowledge or mens rea to commit such oﬀence on the part of owner is absent. The Full Bench also held that mens rea is one of the relevant considerations before passing an order of conﬁscation of the seized vehicle allegedly involved in excise oﬀence. The same view is also taken by the same Full Bench decided in an unreported Judgment in Sharana Gouda v Commissioner of Prohibition and Excise[3]. This was challenged before Supreme Court in Criminal Appeal No.1137 of 2002. Supreme Court in Sharana Gouda v Commissioner of Prohibition and Excise[4] reversed Full Bench of this Court observing that mens rea is not required to be established before a vehicle carrying contraband liquor is conﬁscated. Therefore, the question posed in this writ petition is no more res integra. The observations of Supreme Court are as follows. 7. The only question for consideration is whether mens rea required to be established by the appellant. In this connection Section 45 of the Act needs to be noted. There was originally a proviso to Sub-section (2) thereof. The said proviso was omitted by Andhra Pradesh Act 4 of 1994 w.e.f. 26.11.1993, Section 45 after the omission of the proviso reads as follows. 45. Liability of certain things to conﬁscation:- Whenever an 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, or transported, manufactured, had in possession, sold or brought 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. 8. The proviso which has been omitted reads as follows: 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. 9. The eﬀect of omission of the proviso does not appear to have been considered by the High Court. When the proviso was part of the statute, it was provided that anything speciﬁed in Clause (3) of Section 45 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. At that stage there was a prohibition on conﬁscation if owner of the property in question had no reason to believe that such oﬀence was being or was likely to be committed. This was the provision if oﬀender was not the owner of the property. The position has changed after omission of the proviso. The High Court does not appear to have kept this aspect in view. Therefore, the impugned judgment of the High Court is indefensible and is set aside. It is fairly brought to the notice of this Court by learned Government Pleader for Excise that question as to whet her mens rea is mandatory for exercising power of conﬁscation by Deputy Commissioner has been referred by learned single Judge to a Full Bench by order dated 04.7.2007 in W.P.No.20296 of 2000. In view of the binding precedent of Supreme Court in Sharana Gouda (supra), this Court is of considered opinion that petitioner’s plea cannot be accepted. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ (V.V.S.RAO,J) 29.10.2008. pln [1] 2002 (4) ALT 522 (FB) [2] 2002 (5) ALT 91 (FB) [3] W.P.No.27180 of 1999, dated 11.07.2002 [4] (2007) 6 SCC 42