HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.8674 of 2002 Date : 09.09.2009 Between : Satpal Singh. …..Petitioner And The Commissioner of Prohibition and Excise, Andhra Pradesh & another. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.8674 of 2002 ORDER : In this writ petition, the petitioner, who is the owner of a Tanker bearing No.AP-23-T-5637, has challenged the validity of the orders of confiscation of the said vehicle by the 2nd respondent-Deputy Commissioner of Prohibition and Excise, Hyderabad, by order dated 10.10.2001, and the order of the 1st respondent-appellate authority, dated 23.04.2002, passed in Cr.No.4051/2001/DPE/LA. 2. On the ground that when the Excise officials have conducted a search on 09.09.2001, and found that a Tanker bearing No. AP-23-T-5637, was transporting 12 Metric Tonnes of molasses, one plastic can containing 5 litres of I.D. Liquor and 100 litres of fermented jaggery wash, a case has been registered against the owner and Driver of the said vehicle for alleged violation of the provisions under Section 7-A of A.P. Prohibition Act, 1995 and Sections 34(a) and 34(e) of A.P.Excise Act, 1968. On the report sent by the Prohibition and Excise Inspector, Medchal on 09.09.2001 in Crime No.319/2001-02, the Deputy Commissioner of Prohibition and Excise has initiated proceedings of confiscation under the provisions of the A.P. Prohibition Act, 1995. On initiation of proceedings for confiscation, a show cause notice, dated 15.09.2001, was issued to the petitioner, by the Deputy Commissioner of Prohibition and Excise, inviting his explanation as to why the vehicle bearing No. AP-23-T-5637 should not be confiscated under Sections 12 and 13 of the A.P. Prohibition Act, 1995. On the ground that the petitioner has not offered any explanation inspite of receiving such notice, the order dated 10.10.2001 is passed, confiscating the vehicle along with 12 Metric tonnes of molasses seized. In the said order passed by the 2nd respondent, it is stated that the vehicle of the petitioner was involved in supplying molasses for illegal distillation, and the petitioner has committed an offence by indulging in the process of illegal distillation as he has supplied molasses by unloading the same at the illicit distillation center for the purpose of manufacturing I.D. liquor. In the said order, a further finding is recorded that the contraband material available at the place of unloading of Molasses was also seized, as such, it establishes that the seized tanker is used in supplying of raw-material for the purpose of abetment of illicit distillation and use of the seized molasses for manufacturing of I.D. liquor. 3. As against the said order of confiscation, the petitioner carried the matter by way of appeal before the Commissioner of Excise and Prohibition. In the grounds of appeal, it was the specific case of the petitioner that he was the resident of Sadasivapet, and he was the owner of the tanker seized, which was being driven by the Driver by name Basvaraj. Before the appellate authority, specific grounds were raised that in the absence of any prohibition for transportation of molasses, there was no offence committed by him, and in any event, the respondent authorities have fabricated the records and registered the case against him, and as such, the order of confiscation is illegal and arbitrary. The appellate authority, by order dated 23rd of April 2002, has dismissed the appeal without considering the grounds of appeal raised by the petitioner, by referring to the judgments of this Court in Writ Petition Nos.19706 of 2000 and 12279 of 2001. Curiously, a finding is recorded by the appellate authority that the tanker filled with 12 Metric Tonnes of molasses was found at the place where fermented molasses wash in two mud pots each of 50 litres capacity and one empty wash pit of 1000 litres capacity, and 5 litres of I.D. liquor were also available near Gogillapur Thanda of Qutubullapur Mandal in Ranga Reddy District. 4. In this writ petition, it is submitted by Sri C.Raghu, learned counsel for petitioner that there are no grounds at all for confiscating the tanker. It is submitted that the findings recorded by the appellate authority are contrary to the findings recorded by the primary authority. Whereas the primary authority has recorded a finding that the vehicle was seized along with 12 Metric Tonnes of molasses, 5 litres of illicit liquor and 2 mud pots each containing 50 litres of fermented molasses wash, but the appellate authority has recorded a finding that the Tanker filled with 12 Metric Tonnes of molasses was seized at a place where fermented molasses wash in two mud pots, each of 50 litres capacity and one empty wash pit of 1000 litres capacity and 5 litres of I.D. liquor was available. It is further submitted that though specific grounds are raised denying the offence, the same have not been considered by the appellate authority but by simply referring to the judgments of this Court in W.P.Nos.19706 of 2000 and 12279 of 2001, without considering the grounds of appeal, the appeal is dismissed. 5. On the other hand, it is submitted by the learned Government Pleader for Prohibition and Excise, appearing for the respondents that in this case, during the raid, it was found that the petitioner undertook transportation of molasses, which was used for illegal distillation of liquor, and in view of the provision under Sections 12 and 13 of the A.P. Prohibition Act, 1995, the said vehicle is liable for confiscation, and as such, by recording valid reasons, the vehicle was confiscated. 6. Section 12 of the A.P. Prohibition Act, 1995 provides for confiscation of certain things. Provision under Section 13-A states that no order of confiscation of any property can be made under Section 13, unless the person from whom the said property is seized, (a) is given a notice in writing, informing him of the grounds on which it is proposed to confiscate such property, and (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice. 7. From a perusal of the provision under Section 13-A of the Prohibition Act, 1995, it is clear that before passing an order of confiscation, it is obligatory on the authority to issue a show cause notice in writing by informing the owner, of the grounds, on which he proposed to confiscate the property in question. A perusal of the record in the instant case shows that, except stating that the case has been registered under Section 7-A of the A.P.Prohibition Act read with Section 34 (a) and 34 (e) of the A.P.Excise Act against the petitioner, there is no other ground detailed in the show cause notice. Merely referring to certain provisions, without notifying to the petitioner the grounds on which his property is proposed to be confiscated, itself is a defective one and no order for confiscation can be passed based on such show cause notice. Further, it is also to be noted that the order of the primary authority is passed on the premise that the Tanker of the petitioner was involved in transportation of 12 Metric Tonnes of molasses along with two mud pots, each containing 50 litres of fermented molasses wash and 5 litres of I.D. liquor. When specific grounds were raised before the appellate authority denying commission of such an offence, contrary to the finding recorded by the primary authority, the appellate authority has recorded a finding that the Tanker was found with molasses at a place where fermented molasses wash in two mud pots, each of 50 litres capacity and one empty wash pit of 1000 litres capacity and 5 litres of I.D. liquor was available near Gogillapur Thanda of Qutubullapur Mandal in Ranga Reddy District. Counter filed by the Deputy Commissioner also runs contrary to the findings recorded by the appellate authority. The counter also proceeds on the ground that the vehicle was seized along with I.D. liquor and molasses. 8. It is further submitted by the learned counsel for the parties that during the pendency of the writ petition, as per the interim orders of this Court, dated 26th of April 2002, the vehicle was released to the petitioner on giving bank guarantee and the said order continued all along during the pendency of the writ petition. 9. As much as the very confiscation order is passed without notifying the detailed grounds for confiscation as contemplated under Section 13-A of the A.P. Prohibition Act, and further, as the appellate authority has not considered the grounds raised by the petitioner, it is evidently a fit case to quash the orders of confiscation as confirmed by the appellate authority. When the primary authority has proceeded to pass order of confiscation on the premise that the vehicle was seized along with the I.D. liquor and molasses, but the findings recorded by the appellate authority are contrary to the said finding. Further, inspite of the specific ground raised by the petitioner that in view of repealing of the Molasses Control Order by the Government of India, there was no restriction on transportation of molasses, the same has not at all been considered by the appellate authority. The appellate authority, without dealing with the grounds of appeal raised by the petitioner, simply confirmed the order of confiscation in a routine and mechanical manner, simply referring to the orders of this Court in W.P.Nos.19706 of 2000 and 12279 of 2001. Having regard to the issue involved in the writ petition, the judgments referred above, could not have been solely made basis by the appellate authority for dismissing the appeal preferred by the petitioner. For the aforesaid reasons, I am of the view that it is the case where the order of confiscation passed by the primary authority as well as the order of appellate authority are fit to be quashed. 10. Accordingly, the writ petition is allowed and the order of the Deputy Commissioner of Prohibition and Excise, dated 10.10.2001, passed in Proc.No.C7/3955/2001, and the order of the Commissioner of Prohibition and Excise, dated 23rd April 2002, passed in Cr.No.4051/2001/DPE/LA, are hereby quashed. It is needless to observe that the bank guarantee furnished by the petitioner pursuant to the interim orders of this Court, stands discharged. No order as to costs. ______________________ R. SUBHASH REDDY, J 9th September 2009 ajr