THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE P.DURGA PRASAD W.A.No.941 of 2004 JUDGMENT: (Per. Hon’ble Sri Justice Goda Raghuram) This writ appeal is by the State and is directed against the order dated 07.01.2004 passed in W.P.3521 of 1998, whereby the writ petition is allowed. Respondent is the owner of the Auto bearing No.AP- 03/T.6591. By the order dated 21.10.1997 of the 2nd appellant herein the Auto was confiscated in exercise of powers under Section 46 of the A.P. Excise Act, 1968. The 1st appellant, who is the appellate authority, confirmed the order of confiscation by an order dated 26.12.1997. Assailing both these orders, the respondent herein filed the writ petition. On 23.01.1997 around 12 Noon, the Prohibition and Excise Inspector, Tirupathi along with staff while conducting raids at Anganvadikendram, Navodaya colony, Tirupathi, seized the Auto on observing that it was transporting 105 litres of I.D. liquor in three plastic cans. One Hari Babu and driver of the Auto, Madhu, were arrested and a case in Crime No.P.R.214/96-97 was registered for the offence under Section 8 (b) of the A.P. Prohibition Act, 1995. On an application of the respondent herein, the owner of the Auto, the vehicle was released on furnishing a fixed deposit for Rs.2,000/-. Thereafter, confiscation proceedings were initiated. The primary authority passed an order of confiscation on 21.10.1997 as despite a show cause notice issued, the respondent did not file an explanation. The respondent in her appeal to the 1st appellant, inter alia, pleaded that she had no knowledge about the alleged offence or that the driver and other passenger were carrying contraband liquor in the auto. In allowing the writ petition, a learned Single Judge relied on a decision of a Full Bench of this Court in P.GOKUL ANAND VS. COMMISSIONER OF PROHIBITION AND EXCISE, HYDERABAD[1], wherein this Court observed, in the context of analysis of Section 46 of the A.P. Excise Act, 1968 (the Act) that where the owner of the vehicle had no knowledge about the offence and that the vehicle was being used for violation of the provisions of the A.P. Excise Act, knowledge and mens rea being ingredients of the offence authorizing confiscation, an order of confiscation could not be passed. I n COMMISSIONER, PROHIBITION AND EXCISE V. SHARANA GOUDA[2], the Supreme Court reversed the decision of the Full Bench of this Court in P.GOKUL ANAND and held that by the A.P. Amendment Act 4 of 1994 with effect from 26.11.1993, the proviso to Section 46 of the Act is omitted. The omitted proviso is to the effect that where any receptacle, package or covering in which anything liable to confiscation under clause (1) or clause (2) of Section 46 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. Taking note of the omitted proviso by amendment Act 4 of 1994, the Supreme Court in SHARANA GOUDA held that knowledge of the owner of the vehicle about the offence or user of the vehicle is not an exculpatory factor and would not absolve the owner from the statutory consequence of confiscation. In the light of the judgment of the Supreme Court in SHARANA GOUDA, the fundamental basis of the judgment under appeal is seen to be erroneous. Accordingly, the Writ Appeal is allowed. The judgment dated 07.01.2004 passed in W.P.No.3521 of 1998 is set aside and order of confiscation of vehicle passed by the 2nd appellant as confirmed by the 1st appellant are upheld. No order as to costs. ______________________ GODA RAGHURAM, J ____________________ P.DURGA PRASAD, J 07.07.2011 Gsn. [1] 2002 (4) ALT 522 (F.B) [2] (2007) 6 SCC 42