IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY THIRD DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.23952 of 2004 Between: Smt.Bharata Lakshmi W/o.Yakaiah Lingam Kothabazar, Mahbubabad, Warangal Dist. ..... PETITIONER AND 1 The Commissioner of Prohibition& Excise, Nampally, Hyderabad. 2 The Dy.Commissioner of Prohibition& Excise, Warangal Division, Warangal Dist. 3 The Station House Officer, P.S.Yellandu, Khammam Dist. .....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 issue a writ in the nature of Writ of Mandamus or any other appropriate writ or aside the order dt 16-9-2004 passed in Cr.No.2283/2004/CPE/D4 on the file of the first respondent and the order dt 31-12-2003 passed in Cr.No.2397/2003/P&E/B1 on the ﬁle of the 2nd respondent as illegal, arbitrary and without jurisdiction: Award costs and pass such other or further orders as are deemed ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: SRI K.RAGHUVEER REDDY Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.23952 of 2004 ORDER: The petitioner is owner of Tractor and Trailer bearing No.AP-24-T-1331 and 1332. She statedly gave it on hire to one Pendyala Madhusudhan. On 16.06.2003 the said person took the trailer for transporting kirana goods from Mahabubabad to Yellandu, where he was running a kirana shop. The third respondent ﬁled a report before the second respondent alleging that on 16.06.2003 the inspection team found the tractor and trailer and that they found bags of black jaggery, alum and navasaram in the trailer. It was alleged that the same is being transported by the husband of the petitioner for being sold to manufacturers of ID liquor. Therefore, the second respondent initiated action under Sections 45 and 46 of the Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity), alleging that an oﬀence under Section 34(e) of the Excise Act was committed, and issued a show cause notice. During the pendency of conﬁscation proceedings, the vehicle was released to the petitioner on furnishing a bank guarantee of Rs.44,500/-. After considering the case, the second respondent passed orders on 31.12.2003 ordering conﬁscation of the tractor and trailer along with 15 quintals of black jaggery, 1½ quintals of alum and 25 kgs of navasaram to the State. Aggrieved by the same, the petitioner preferred an appeal before the Commissioner of Prohibition and Excise, and the same was dismissed on 16.09.2004, aggrieved by which, the present writ petition is filed. Respondents ﬁled counter aﬃdavit opposing the writ petition. Learned Counsel for the petitioner raised two contentions. First, he submits that petitioner has no knowledge of commission of excise oﬀence, and in the absence of mens rea, the vehicle cannot be seized. Secondly, it is submitted that petitioner’s husband, who was accused in C.C.No.245 of 2003, was acquitted by the Court of the Judicial Magistrate of First Class, Yellandu, on 06.02.2007, and therefore, in the absence of any offence, the vehicle cannot be seized. The two questions raised by the learned Counsel for the petitioner are no more res integra. In Commissioner, Prohibition and Excise, A.P. v Sharana Gouda[1] 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 the 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 4 of 1994 by which the proviso to subsection (3) of Section 45 of the 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 vehicle cannot be seized or conﬁscated, is without merit. The next question is that when an accused in excise oﬀence is acquitted by criminal Court, whether the vehicle involved in such criminal case can be conﬁscated. This aspect of the matter was considered recently in N.Ram Reddy v Commissioner, Prohibition and Excise of A.P., Hyderabad[2], wherein it was held as under. A perusal of joint reading of Sections 12, 13 and 13-D of the Prohibition Act goes to show that notwithstanding the launching of criminal case and without any reference to the acquittal or conviction, the initiation of conﬁscation proceedings by the Deputy Commissioner of Prohibition and Excise is independent and separate. Though for a criminal action the oﬀender is acquitted, at the same time, the vehicle and the goods seized by means of which the liquor is transported, are liable for conﬁscation. Under Section 13(1) irrespective of the initiation of criminal proceedings, the goods seized, which are liable for conﬁscation, shall be produced before the Deputy Commissioner of Prohibition and Excise without any unreasonable delay and on production of the seized property, the Deputy Commissioner of Prohibition and Excise, if satisﬁed that an oﬀence has been committed under the Prohibition Act, then such goods seized, which are liable for conﬁscation under Section 12, can be confiscated. Therefore, even if there was an acquittal by the criminal Court in the criminal case, the same does not make a diﬀerence insofar as conﬁscation is concerned. Furthermore, while dismissing the appeal, the Commissioner observed as under. A perusal of the records reveals that all the three accused persons stated that the material was being transported for supplying it to ID manufacturers. The accused has not produced any way bill, transport permit for transporting material. The Government Chemical Examiner of Regional Prohibition and Excise laboratory Warangal reported that the sample contains sugars and extraneous matter. It is jaggery ﬁt for fermentation producing alcohol. Unfit for consumption. The accused has not shown any evidence to believe that the material was intended for bonaﬁde use. The husband of the appellant has accompanied while transporting the material and confessed that it was intended to sell it to the manufacturers of ID liquor. Therefore, the contention of the appellant that she had no knowledge of the oﬀence is not tenable and intended only to escape the liability. In view of the above, this Court does not ﬁnd any inﬁrmity in the impugned order. The Writ Petition is, therefore, dismissed. No costs. ____________ (V.V.S.RAO, J) 23.10.2008 vs To 1 The Commissioner of Prohibition& Excise, Nampally, Hyderabad. 2 The Dy.Commissioner of Prohibition& Excise, Warangal Division, Warangal Dist. 3 The Station House Officer, P.S.Yellandu, Khammam Dist. 4 2CCs to G.P for Prohibition and Excise, High Court of A.P., Hyderabad. 5 2CD copies Form-NIC-OGS/WP{MVK} [1] (2007) 6 SCC 42 [2] 2008 (5) ALD 529