IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY THURSDAY, THE SEVENTEENTH DAY OF JUNE, TWO THOUSAND TEN WRIT PETITION No.8490 OF 2002 Between: A.Sagar. … Petitioner And The Commissioner of Prohibition & Excise Department, Nampally, Hyderabad and others. … Respondents Counsel for the petitioner: Sri A.Ravinder. Counsel for the respondents: AGP for Prohibition and Excise. This Court made the following: ORDER:- This Writ Petition is filed for a Certiorari to quash order, dated 9-3-2002, passed by respondent No.1, by which he confirmed order, dated 20-1-2001, passed by respondent No.2. I have heard Sri A.Ravinder, learned counsel for the petitioner, and the learned Assistant Government Pleader for Prohibition and Excise. The petitioner is the owner of Auto-rickshaw bearing No. AP 9V 4303. When the said auto was intercepted and checked on 28- 10-1999, it was found carrying 400 polythene packets of I.D. Liquor, each containing 100 ml., in one gunny bag kept underneath the passengers seat. The auto along with the contraband was seized under the cover of panchanama and confiscation proceedings were initiated under Section 13 of the A.P. Prohibition Act, 1995. Respondent No.2, by his order, referred to above, confiscated the contraband along with the auto-rickshaw. The appeal filed by the petitioner, against the said order, was dismissed by respondent No.1 by the impugned proceedings. At the hearing, Sri A.Ravinder, learned counsel for the petitioner, raised the only contention that the petitioner, being the owner of the auto, is not having knowledge of transportation of contraband by a passenger, who was traveling in the auto. Section 45 of the Andhra Pradesh Excise Act, 1968, the application of which is not in dispute, was amended with effect from 26-11-1993 by the A.P. Act 4 of 1994 and by the said amendment the following proviso was deleted: “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”. While rejecting a similar contention, as raised by the petitioner in this case, the Supreme Court in Commissioner, Prohibition and Excise Vs. Sharana Gouda - 2007(6) SCCC 42 – held that in view of deletion of proviso to Section 45(2), mens rea is immaterial. Therefore, being the owner of the auto, the petitioner is vicariously liable for the acts of his driver. For the above mentioned reasons, I do not find any error in the orders passed by the respondents 1 and 2. The Writ Petition is accordingly dismissed. It is represented by the learned counsel for the petitioner that respondent No.2 allowed interim custody of the said vehicle to the petitioner on his furnishing FDR for Rs.7,000/-; and that this Court by interim order dated 26-4-2002 continued the said order. In view of the dismissal of the Writ Petition, the respondents shall be free to invoke the FDR, if the same is kept valid. The respondents are directed to pay the interest, if any, accrued on the FDR, to the petitioner. If the validity of the FDR has expired, then the respondents are entitled to take possession of the auto and sell the same in auction. -------------------------------- ----- C.V.NAGARJUNA REDDY,J Date:17-6-2010 MNR