IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 19335 of 2000 Between: Subash Sharma, S/o S.P.Sharma, R/o Tatibandh, Raipur, Raipur District, (MP), through his GPA Ghan Shyam Sharma, S/o Late Sri Bhagwati Prasad Sarma, aged 44 yrs, Occ: Business, R/o 15-2-673, 1st Floor, Kishan Gunj. ..... PETITIONER AND 1 The Commissioner of Prohibition & Excise, Hyderabad, Andhra Pradesh. 2 The Deputy Commissioner of Prohibition & Excise, Karimnagar Division, Karimnagar. 3 The Prohibition & Excise Inspector, Adilabad, Adilabad Distirct. .....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 to issue an order, direction or writ particularly one in the nature of Writ of Certiorari calling for the records of the 1st respondent in Proceedings CR.No.3098/DPE/99B2, dt.13.1.2000, and quash the same by declaring it as being illegal, arbitraty, unconstitutional apart from being contrary to the A.P.Prohibition Act, 1995, and A.P.Excise Act. 1968 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.S.NIRANJAN REDDY Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.19335 of 2000 ORDER: The petitioner is owner of a lorry/tanker bearing No.MP 23 DA 1144. The Prohibition and Excise Inspector, Adilabad, and staﬀ of prohibition and excise department intercepted the tanker at Bhoraj Village. The tanker was found transporting 12,000 bulk liters (BLs) of rectiﬁed spirit and 500 BLs of lubricant oil illegally. The inspecting party, therefore, registered a case, being PR No.208/1998-99 on 07.04.1999 as there is prima facie commission of excise oﬀence under Section 34(e) of the Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity). Second respondent issued a show cause notice for conﬁscation. The petitioner submitted explanation inter alia alleging that he had no knowledge of his tanker being used for commission of an excise oﬀence. Rejecting the explanation, second respondent passed orders on 09.09.1999 ordering conﬁscation of the tanker to the Government. The petitioner ﬁled an appeal before ﬁrst respondent and was unsuccessful there. In this writ petition the petitioner seeks a writ of Certiorari questioning the order of ﬁrst respondent conﬁrming confiscation order of second respondent. The only submission made by the learned counsel for the petitioner is that petitioner, who is owner of the vehicle involved in excise oﬀence, has no knowledge or mens rea, and unless and until the same is attributed, even if vehicle is involved in commission of excise oﬀence, the same cannot be conﬁscated. He placed reliance on Sections 45, 46 and 46-B of Excise Act. Per contra, placing reliance on the judgment of the Supreme Court in Commissioner, Prohibition and Excise, A.P. v Sharana Gouda[1], learned Assistant Government Pleader for Prohibition and Excise submits that in view of deletion of the proviso under Section 45(3) of Excise Act, knowledge or mens rea of owner of vehicle is immaterial for the purpose of conﬁscating the vehicle under Section 46 of Excise Act. I n Sharana Gouda (supra) while reversing the judgment of Full Bench of this Court in W.P.No.27180 of 1999, dated 11.07.2002, the Supreme Court held that knowledge or mens rea of the owner of the vehicle is immaterial for the purpose of conﬁscation of the vehicle involved in excise oﬀence. After referring to Andhra Pradesh Amendment Act No.4 of 1994 by which the proviso to Sub-Section (3) of Section 45 of Excise Act was omitted, the Supreme Court observed 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 if 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 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 dicta, the plea of the petitioner’s counsel that in the absence of knowledge and mens rea of the owner, vehicle cannot be seized or conﬁscated, is without merit. Even on merits the petitioner has no case to defend the order of confiscation. The appellate authority, while dismissing the appeal, observed as under. I have gone through the records placed before me including panchanama and crime and occurrence report. The mediators report reveals that the tanker was specially designed to store the Lubricant Oil and Rectiﬁed Spirit, and that, a huge quantity 12,000 B.Ls., of Rectiﬁed Spirit and 500 B.Ls of Lubricant Oil were seized during the course of inter-state transit. Such a huge quantity of Rectiﬁed Spirit cannot be transported beyond the boarder of the state of origination without the connivance of the owner. No material is placed before me to deviate from the ﬁndings of the Deputy Commr. of Proh. And Excise, Karimnagar. The writ petition is, therefore, dismissed. No costs. _____________ (V.V.S.RAO, J) 03rd November, 2008 GHN To 1 The Commissioner of Prohibition & Excise, Hyderabad, Andhra Pradesh. 2 The Deputy Commissioner of Prohibition & Excise, Karimnagar Division, Karimnagar. 3 The Prohibition & Excise Inspector, Adilabad, Adilabad Distirct. 4 2CCs to GP for Prohibition and Excise 5 2CD copies Form-NIC-OGS/WP{ANURADHA} [1] (2007) 6 SCC 42