IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTY FIRST DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.13597 of 2005 Between: M.Prabhakar, S/o.Venkat Rao, R/o.1-11-111/5/A, Shyamala Buildins, Hyderabad. ..... PETITIONER AND 1 The Commissioner of Prohibition and Excise, Hyderabad Division, Hyderabad. 2 The Deputy Commissiner of Prohibition and Excise, Hyderabad Division, Hyderabad. 3 The Prohibition and Excise Inspector, S.H.O., Malakajgiri, Hyderabad. .....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 an appropriate writ, order or direction more particularly a writ in the nature of writ of Mandamus declaring the proceedings on Crime No.C4/5078/2002 dated 5-12-2003 passed by the 2nd respondent conﬁscating the TATA Sumo vehicle bearing No.AP 10 J 3532 and the order passed by the 1st respondent in proceedings No.CR No.1418/2004/CPE/D4 6-8-2004 conﬁrming the orders passed by the 2nd respondent as illegal and arbitrary and consequently set aside the same as otherwise the petitioner suﬀer irreparable loss and injury. Counsel for the Petitioner:SRI A.RAVI SHANKAR 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.13597 of 2005 ORDER: The petitioner is the owner of a Tata Sumo vehicle bearing No.AP 10 J 3532. It is his case that he gave the vehicle on hire to P.Vijay Kumar for pilgrimage trip on 27.08.2002. Third respondent seized the vehicle on 28.09.2002, when it was found transporting IML liquor bottles on which duty was not paid. In the conﬁscation proceedings ensued, the petitioner was given show cause notice. The petitioner then ﬁled an application for release of vehicle by way of interim custody, in vain. The Deputy Commissioner by proceedings dated 05.12.2003 ordered conﬁscation. The petitioner then preferred an appeal. Along with the appeal he again sought interim custody, which was denied. The petitioner then ﬁled W.P.No.8699 of 2004 and this Court disposed of the matter on 30.04.2004 directing release of the vehicle on condition of furnishing bank guarantee. The petitioner could not furnish bank guarantee. Therefore, vehicle was not released. Be that as it is, the Commissioner dismissed the appeal on 06.08.2004, aggrieved by which, the present writ petition is filed. The only submission made by the learned Counsel for the petitioner is that petitioner has no knowledge or mens rea, and unless and until knowledge is attributed, even if vehicle is involved in commission of excise oﬀence, the same cannot be conﬁscated. 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 Excise submits that in view of deletion of the proviso under Section 45(3) of the Andhra Pradesh Excise Act, 1968 (Excise Act, for brevity), knowledge or mens rea of owner of vehicle is immaterial for the purpose of conﬁscating the vehicle under Sections 45 and 46 of the Excise Act. In Commissioner, Prohibition and Excise, A.P. v Sharana Gouda[2] 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 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 vehicle cannot be seized or confiscated, is without merit. The Writ Petition is, therefore, dismissed. No costs. _____________ (V.V.S.RAO, J) 31.10.2008 vs To 1 The Commissioner of Prohibition and Excise, Hyderabad Division, Hyderabad. 2 The Deputy Commissiner of Prohibition and Excise, Hyderabad Division, Hyderabad. 3 The Prohibition and Excise Inspector, S.H.O., Malakajgiri, Hyderabad. 4 2CCs to G.P for Prohibition and Excise, High Court of A.P., Hyd. 5 2CD copies Form-NIC-OGS/WP{JA} [1] (2007) 6 SCC 42 [2] (2007) 6 SCC 42