HON’BLE MR.JUSTICE R.SUBHASH REDDY Writ Petition No.419 of 2008 Date: August 25, 2011 Between: Vannem Reddy Madhusudhan Rao, S/o.Nageswara Rao, aged about 33 years, Occ:business, R/o.Pedana, Krishna District … Petitioner And The Commissioner, Prohibition & Excise, Hyderabad and another … Respondents Order: This writ petition is filed questioning the order dated 30.11.2007 passed in Cr.No.9670/2007/CPE/D4, by the 1st respondent-Commissioner, Prohibition & Excise, Hyderabad, by which he has confirmed the order dated 17.07.2007 passed in proceedings Rc.No.946/2006/A2, by the 2nd respondent-Deputy Commissioner of Prohibition & Excise, Vijayawada, confiscating the vehicle of the petitioner, i.e. mini van bearing Regn.No.AP.16V.1568. On 30.03.2002, at about 12 noon, the Station House Officer, Machilipatnam Prohibition and Excise Station, along with his staff seized the vehicle of the petitioner while it was transporting 2000 kgs. of black jaggery in the limits of Gokavaram village, Bandar Mandal of Krishna District. On the ground that the said transportation was illegal, a case was registered in Machilipatnam Prohibition & Excise Station, vide Cr.No.1645/2001-02 under Section 34(e) read with Section 13(f) & 34(a) of the Andhra Pradesh Excise Act, 1968. On the ground that the said transportation was illegal and accused No.2, who is the owner of the black jaggery, was transporting the same for manufacture of illicit liquor, proceedings were initiated for confiscation of the vehicle of the petitioner and a show-cause notice was issued to him. The petitioner has submitted his explanation to the 2nd respondent, who, by order dated 17.07.2007 ordered confiscation of his vehicle by recording a finding that the vehicle of the petitioner was involved in transportation of 2000 kgs. of black jaggery, which is prohibited under the Act. He has also ordered confiscation of the black jaggery which was seized from the vehicle belonging to the petitioner. Aggrieved of the said order, the petitioner filed an appeal before the Commissioner of Prohibition and Excise, who, by order dated 30.11.2007, confirmed the order of the 2nd respondent by recording a finding that the vehicle of the petitioner is involved in transportation of black jaggery which is prohibited under the Act and is therefore liable for confiscation. Assailing both the orders, this writ petition is filed. The orders of confiscation of the vehicle in question, as confirmed by the appellate authority, are mainly questioned on the ground that no valid reasons have been recorded for ordering such confiscation. It is stated that there is no material whatsoever to show that the black jaggery that was being transported in the vehicle in question is intended for manufacture of arrack or any other intoxicant; in that view of the matter there is no justification for ordering confiscation of the vehicle. On the other hand, in the counter-affidavit filed on behalf of the respondents, it is stated that as the black jaggery which is seized from the vehicle in question is intended for illegal distillation and manufacture of arrack, the vehicle has been seized and even in the absence of any knowledge of the owner of the vehicle about the transportation, the vehicle is liable for confiscation. Having heard learned counsel on either side, I have perused the order passed by the 2nd respondent-Deputy Commissioner dated 17.07.2007, by which he has ordered confiscation of the vehicle in question. From the said order, it is clear that confiscation is ordered only on the ground that 2000 kgs. of black jaggery was being transported in the vehicle in question, which is prohibited under the Act. It is the case of the petitioner that transportation of black jaggery by itself is not an offence within the meaning of the Act and the Rules made thereunder. Even the learned Government appearing on behalf of the respondents did not bring to the notice of this Court any statutory provision or any Rule under the Act, which prohibits transportation of black jaggery. Though it is submitted by the learned Government Pleader that the black jaggery which was seized from the vehicle in question is intended for manufacture of arrack, no such finding is recorded in the order of confiscation passed by the 2nd respondent-Deputy Commissioner. In the absence of any such finding alleging that the owner of the vehicle is in collusion with the owner of the material seized and the same is intended for manufacture of any illegal intoxicant and also in absence of any specific provision prohibiting transportation of black jaggery under the provisions scheme of the Act and the Rules made thereunder, this Court is of the considered opinion that no order confiscating the vehicle in question could have been passed, as affirmed by the 1st respondent-appellate authority. Although learned Government Pleader states that the material seized from the vehicle in question is, in fact, intended for manufacture of illegal intoxicants and the same is stated in the counter-affidavit, as held by the Hon’ble Supreme Court in Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi and others[1], when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Therefore, the submission of the learned Government Pleader cannot be accepted. Further, Section 45 of the Act indicates the liability of certain things for confiscation, whenever an offence has been committed, which is punishable under the Act, which include any receptacle, package, or covering. Confiscation is permissible only in the event of any receptacle, package or covering in which anything liable to confiscation under clause (1) of clause (2) is found. In absence of any specific provision under the Act, prohibiting transportation of black jaggery, it cannot be said that the petitioner has committed any offence punishable under the Act and the Rules made thereunder. For the foregoing reasons, the order dated 30.11.2007 passed in Cr.No.9670/2007/CPE/D4, by the 1st respondent- Commissioner, Prohibition & Excise, Hyderabad, confirming the order dated 17.07.2007 passed in proceedings Rc.No.946/2006/A2, by the 2nd respondent-Deputy Commissioner of Prohibition & Excise, Vijayawada, by which the vehicle of the petitioner, i.e. mini van bearing Regn.No.AP.16V.1568 is confiscated, is hereby quashed. The bank guarantee given by the petitioner for release of his vehicle stands discharged and the petitioner is entitle to return of the documents, relating to bank guarantee furnished by him. Writ petition is allowed to the extent indicated above. No order as to costs. ______________________ (R.SUBHASH REDDY, J) August 25, 2011 MRR [1] AIR 1978 SC 851