HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.27056 of 2008 Date : 04.11.2011 Between : Kanteti Visweswara Surya Prakash Rao. …..Petitioner And The Commissioner of Prohibition and Excise, A.P. & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.27056 of 2008 ORDER : This writ petition is filed against the order of confiscation, dated 26.12.2007, passed in R.C.B1/678/06, by the 2nd respondent-Deputy commissioner of Prohibition and Excise, Kakinada, and the order of the appellate authority, dated 09.09.2008, passed in C.R.No.4970/2008 by the 1st respondent-Commissioner of Prohibition and Excise, Andhra Pradesh. Petitioner is the owner of Tata Indigo Car bearing No. AP-5-AK-3957. On 26.04.2006, the Prohibition and Excise Inspector, Tallarevu, along with staff, conducted a route watch in the limits of Gadimoga village. During the said watch, they have seized the above said car of the petitioner on the ground that it undertook transportation of 480 NIPS of whisky and 12 beer bottles. As the inspecting authorities have noticed that such transportation was illegal and was not supported by any valid permit as required under the Andhra Pradesh Excise Act, 1968, a case was registered in Crime No.1/06- 07 on the file of Tallarevu Prohibition and Excise Station. After seizure, the Station House Officer of Tallarevu Prohibition and Excise Station has submitted proposals to the Deputy Commissioner of Prohibition and Excise, Kakinada, for confiscation of the seized vehicle along with liquor. Based on such proposal sent by the Station House Officer, Tallarevu, a show cause notice was issued to the petitioner, who is the owner of the vehicle, vide show cause notice, dated 13.11.2006, in R.C.B1/678/06, to show cause as to why the aforesaid vehicle should not be confiscated in exercise of powers under Section 46 of the Andhra Pradesh Excise Act, 1968. Though the petitioner has received the aforesaid show cause notice on 22.10.2007, he has not filed any explanation to the said show cause notice. The Deputy Commissioner of Prohibition and Excise, Kakinada, the 2nd respondent herein, after considering the material on record i.e. mediators report, FIR etc., by recording a finding that the vehicle was used for illegal transportation of liquor i.e. 480 NIPS of whisky and 12 beer bottles, has ordered for confiscation of the vehicle, by order dated 26.12.2007, issued in R.C.B1/678/06. As against the order of confiscation passed by the 2nd respondent-Deputy Commissioner of Prohibition and Excise, Kakinada, the petitioner has filed an appeal before the 1st respondent-Commissioner of Prohibition and Excise, Andhra Pradesh. The appellate authority, by impugned order, dated 09.09.2008, passed in C.R.No.4970/2008, dismissed the appeal and confirmed the order of confiscation, dated 26.12.2007, passed in R.C.B1/678/06. Assailing the validity of the said orders, the present writ petition is filed. Mainly, it is contended by the learned counsel appearing for petitioner that his vehicle was not at all used for transportation of liquor, as alleged, and it is further submitted that in any event, he had no knowledge of transportation of liquor as alleged. It is submitted that as the vehicle was being used during the Elections and as the transportation of liquor in the said vehicle was not to the knowledge of the petitioner, same is not liable for confiscation. On the other hand, it is submitted by the learned Government Pleader appearing for respondents that during the route watch conducted by the Prohibition and Excise Inspector of Tallarevu on 26.04.2006, the car of the petitioner was seized when about 480 NIPS of whisky and 12 beer bottles were transported in it. It is submitted that in view of the mediators report prepared at the time of seizure and immediate registration of crime against the petitioner for illegal transportation of liquor without any valid permit, it cannot be said that the vehicle was not used for transportation of liquor. It is submitted that in any event, even assuming that the petitioner had no knowledge about the transportation of liquor, same is no ground to invalidate the order of confiscation as the same is not an essential ingredient for passing an order of confiscation in exercise of powers under Section 46 of the Andhra Pradesh Excise Act, 1968. At the time of arguments, the learned Government Pleader appearing for respondents has produced the file relating to the seizure of the vehicle and further registration of crime against the petitioner. The said file contains the mediators panchanama conducted on 26.04.2006 by the Prohibition and Excise Inspector in the presence of other panchas, who have subscribed their signatures to the said report. A perusal of the said mediators report clearly indicates that the liquor i.e. 480 NIPS of whisky and 12 beer bottles of Haywards 5000 were seized from the car. In the mediators report, it is also reported that at the time of seizure, two persons, who were in the car, also ran away from the scene of occurrence. In view of the said panchanama conducted and registration of crime against the petitioner, who is the owner of the vehicle, it is difficult to accept the contention of the learned counsel for petitioner that the vehicle was not used for transportation of liquor. Even the other argument advanced by the learned counsel for petitioner that the vehicle is used without his knowledge for transportation of liquor, same is also no ground to invalidate the order of confiscation. Further, by a judgment, dated 05.06.2007, in the case of Commissioner, Prohibition and Excise, A.P. and another Vs. Sharana Gouda, in Criminal Appeal No.1137 of 2002, the Hon’ble Supreme Court has held as under : “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 any thing 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 position 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”. In view of the aforesaid judgment, even the argument of the learned counsel for petitioner that he was not having the knowledge of transportation of liquor in his car, also has no consequence to nullify the order of confiscation when it is proved that the said vehicle was used for transportation of liquor without any permit as required under the provisions of the Andhra Pradesh Excise Act, 1968 and rules made thereunder. As no other argument is advanced, in view of the reasons stated above, I do not find any merit in this writ petition, so as to interfere with the order of confiscation passed by the 2nd respondent-Deputy Commissioner of Prohibition and Excise in R.C.B1/678/06, dated 26.12.2007, as confirmed by the appellate authority 1st respondent-Commissioner of Prohibition and Excise, A.P., in C.R.No.4970/2008, dated 09.09.2008. For the aforesaid reasons, the writ petition is dismissed. No order as to costs. ______________________ R. SUBHASH REDDY, J 4th November 2011 ajr