THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No. 708 of 2004 JUDGMENT: (Per the Hon’ble Sri Justice Goda Raghuram) Heard the learned Government Pleader for Prohibition & Excise and Sri Venkateswara Rao Gudapati – for the respondent. The appeal is directed against the order dated 21.1.2004 of the learned single Judge allowing the writ petition and setting aside the proceedings bearing D.Dis.No.309/97/B2 dated 13.12.1997 of the 2n d appellant as confirmed by the order dated 17.3.1998 of the 1st appellant. The respondent was the owner of an Auto bearing Registration No.AP 35-T 0787. On 7.3.1997 the vehicle was intercepted by the Prohibition and Excise Inspector, Vizianagaram and found to be illegally transporting 200 sachets of arrack along with contraband. The vehicle was seized for having committed an offence under Section 8(b) of the A.P. Prohibition Act, 1995 and a case in that behalf was duly registered. Thereafter, proceedings for confiscation of the vehicle were initiated by the Deputy Commissioner of Prohibition and Excise, Visakhapatnam (2nd appellant herein). After a due process as mandated under Section 46 (a) of the A.P. Excise Act, 1968 by issuing a notice and receiving the explanation of the respondent herein who pleaded that he had no notice of the transportation of liquor by the passengers in the Auto, by the order dated 13.12.1997 the Deputy Commissioner of Prohibition and Excise, Visakhapatnam passed an order of confiscation of the vehicle. The 2nd respondent-owner preferred an appeal there-against to the Commissioner of Prohibition and Excise, who passed the order dated 17.3.1998 confirming the order of confiscation and rejected the appeal. Aggrieved thereby, the 2nd respondent-owner of the Auto filed the writ petition, which was allowed on the ground that though the owner had submitted his explanation to the show-cause notice, no reasons were recorded and the order of confiscation was passed by the primary authority. The learned single Judge held that unless a finding is recorded that transportation of liquor was with the knowledge and connivance of the petitioner, no order of confiscation could be passed and since in the order impugned no reasons are recorded, though the primary authority referred to the explanation filed by the petitioner, the order is unsustainable. The learned Government Pleader for Prohibition and Excise brings to the notice of this Court a judgment of the Supreme Court in Commissioner, Prohibition and Excise, A.P. and another v. Sharana Gouda[1], wherein the provisions of Section 45(3) of the A.P. Excise Act, 1968 after amendment by A.P. Act 4 of 1994 fell for consideration. The Supreme Court held that Section 45 of the A.P. Excise Act, 1968, after its amendment by A.P. Act 4 of 1994 and omission of the proviso, does not require knowledge by the owner of the commission of an offence under the Excise Act, though the property involved in the offence is not under the active control of the owner. The omitted proviso read: “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”. The Supreme Court accordingly held that the position has changed after the omission of the proviso and, therefore, mens rea of the owner is now not a statutory requirement. In the case on hand, though the order of confiscation does not record reasons, the factum of involvement of the Auto in the transportation of the contraband and 200 sachets of arrack is not in dispute. The singular grievance of the owner is that his explanation that he had no knowledge of the transportation of the arrack and contraband has not been considered by the primary authority while ordering confiscation. In view of the omission of the proviso immunizing the owner from the consequence of confiscation where he has no knowledge of the involvement of his vehicle in violation of the provisions of the Excise Act, the plea that the owner had no knowledge would not avail to avoid confiscation. On the aforesaid premises, the order under appeal is liable to be interfered with and the judgment of the learned single Judge is accordingly set aside. The order of confiscation and its confirmation by the Commissioner of Prohibition and Excise suffer from no infirmity warranting interference. The writ appeal is accordingly allowed and the order of the Deputy Commissioner of Prohibition and Excise, Visakhapatnam dated 13.12.1997 as confirmed by the order of Commissioner of Prohibition and Excise dated 17.3.1998 are upheld. There shall be no order as to costs. ______________________ JUSTICE GODA RAGHURAM ______________________ JUSTICE P. DURGA PRASAD Date: 09-6-2011. MVB. [1] (2007) 6 SCC 42