HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT APPEAL No.1624 of 2003 Between: The Commissioner of Prohibition and Excise, Government of Andhra Pradesh, Hyderabad and others …APPELLANT(S) and Ch.Mallesham …RESPONDENT(S) This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT APPEAL No.1624 of 2003 JUDGMENT OF THE DIVISION BENCH: Appellants in this writ appeal are the Commissioner of Prohibition and Excise, Andhra Pradesh, Hyderabad; the Deputy Commissioner of Prohibition and Excise, Karimnagar Division and the Prohibition and Excise Inspector, Jagityal. They filed this writ appeal under Clause 15 of the Letters Patent questioning the order dated 08.08.2003 of the learned single judge of this Court allowing Writ Petition No.14321 of 2003. 2. The respondent herein is the petitioner in the aforesaid writ petition and he is admittedly the owner of the auto trolley bearing registration No.AP-15U-9715. For disposal of this writ appeal the relevant facts which led to the filing of the writ petition and also the composition of the offence in question by the writ petitioner which is brought to our notice should be stated, and hereafterwards for convenience we shall refer to the parties as they are arrayed in the writ petition. 3. The Prohibition and Excise Inspector, Jagityal (Prohibition Inspector) issued a show cause notice dated 16.10.2000 to the writ petitioner alleging that on 31.08.2000 his auto trolley was found transporting 28 lumps of black jaggery intended for manufacture of illicitly distilled liquor and called upon him to show cause as to why the said vehicle should not be confiscated under the provisions of the Andhra Pradesh Excise Act, 1968 (for short Act). It transpires from the record that the Prohibition Inspector also registered a case in Crime No.215 of 2000-01 of Prohibition & Excise Station, Jagityal in that connection. We shall deal with this FIR a little later. 4. The writ petitioner did not submit any explanation to the above show cause notice. The record shows that thereafter the Deputy Commissioner of Prohibition & Excise, Karimnagar division (2nd respondent in the Writ Petition) by his proceedings dated 30.10.2001 confiscated the auto trolley and the 28 lumps of black jaggery which it was found transporting. Thereafter the writ petitioner filed an appeal before the Commissioner of Prohibition and Excise (Commissioner). The Commissioner considered that appeal and by his order dated 20.03.2003 dismissed that appeal. The order of the Deputy Commissioner and the order of the Commissioner purport to have been passed under Section 46 of the Act and they have that power under it. Questioning the above order of the Deputy Commissioner and the Commissioner the petitioner filed present W.P.No.14321 of 2003. 5. The Excise authorities contested the writ petition. However the said writ petition was allowed for two reasons. The first is that black jaggery is by itself not a contraband inasmuch as it cannot be treated as an intoxicant as that expression is defined in Section 2(19) of the Act and therefore Section 34(a) of the Act which deals with imports, exports, transports, manufacture, collection or possession or sale of any intoxicant does not apply to black jaggery. The learned Judge observed that since the orders of the Deputy Commissioner and the Commissioner proceed on the premise that Section 34(a) of the Act applies the said orders cannot be said to be valid. In holding so, the learned Judge relied upon a Full Bench decision of this Court given in GANESH TRADERS (KIRANA AND GENERAL MERCHANTS), DHARMAPURI, KARIMNAGAR DISTRICT vs. DISTRICT COLLECTOR, KARIMNAGAR[1]. The second reason given is that even assuming that the petitioners auto trolley was used transporting black jaggery and even if it is treated as a material intended for manufacturing ID liquor following the criteria or guidelines or rules which would have been framed following the aforesaid Full Bench decision, still the case may fall under Section 34(f) of the Act and since the orders of the Deputy Commissioner and the Commissioner show that they dealt with the matter as if it falls under Section 34(a) of the Act, their orders cannot be sustained. In that view of the matter, the orders of the Deputy Commissioner and the Commissioner were set aside by allowing the writ petition. 6. Respondents i.e. the Excise authorities are questioning the above order and the reasoning in it in this writ appeal. We have heard the learned Government Pleader appearing for the appellants and Sri Bhaskar Reddy, the learned counsel appearing for the writ petitioner. 7. We should mention here that in the record we have found a copy of the F.I.R in Crime No.215 of 2000-01 of the Excise Station, Jagityal. This copy is not disputed. In this FIR the seizure of the auto trolley bearing No.AP-15U-9715 and the 28 lumps of black jaggery found carried in it are mentioned. This FIR contains a list of four accused. Their names are as follows. Thodati Narsayya (A1), Polgani Gangadhar (A2), Yadla Rajamallu (A3) and B.Nagaraju (A4). Of them the occupation of the first accused is given as labour and the occupation of the fourth accused is given as jaggery merchant. In the contents of the FIR it is stated that the first accused was transporting the 28 lumps of black jaggery in the auto trolley in question and at that time i.e. on 31.08.2000 at 07.30 pm the said auto trolley was driven by the third accused Yadla Rajamallu. It should also be noted here that the sections of law mentioned in the above FIR are Section 34(e), Section 42 and Section 50 of the Act. The allegations in the FIR would further show that the black jaggery in question was usable for manufacturing ID liquor. 8. It may then be noted that Section 34(e) deals with among other things possession of any materials for the purpose of manufacturing any intoxicant other than toddy, while section 42(c) deals with the presumption in favour of the prosecution with regard to possession of any material which has undergone any process towards the manufacture of an intoxicant. Then coming to Section 50 it deals with penalty for abetment of any of the offences under the Act by any person or any officer. 9. It is thus clear that in the FIR the offence mentioned with regard to black jaggery in question is the one falling under Section 34(e) of the Act i.e. possession of any material which is intended for the purpose of manufacturing any intoxicant other than toddy. At the time of arguments both the learned Government pleader and the learned counsel for the petitioner brought to our notice that a charge sheet was also filed against the writ petitioner along with others for an offence under Section 34(e) of the Act and that they compounded the offences by paying the composition fee. We have adjourned the matter several times to enable the learned Government Pleader and the learned counsel for the petitioner to produce a copy of the charge sheet filed against the writ petitioner and others and also a copy of the order passed by the learned Magistrate who dealt with the matter. They however could not produce the said copies and ultimately stated that this Court can take it from them that a charge sheet has been filed and the writ petitioner also compounded the matter. 10. It may be noted that once the writ petitioner having been prosecuted for an offence under Section 34(e) of the Act, has compounded that offence by paying the composition fee, it follows that he has admitted the offence under Section 34(e) of the Act i.e. his auto trolley was transporting black jaggery which was intended for manufacture of ID liquor. In view of this composition of the offence by the writ petitioner it is not necessary now for us to express any view as to whether the black jaggery in question in the circumstances of this case constitutes an intoxicant by itself. It would be sufficient to note, at the risk of repetition, as the petitioner has compounded the offence it follows that he must be deemed to have admitted that his auto trolley was transporting black jaggery which was intended for manufacturing ID liquor. The chemical analyst report dated 22.09.2000 given by the Government Chemical Examiner of Prohibition and Excise Laboratory, Warangal would also show that the black jaggery in question is not fit for consumption and that it is fit for fermentation for producing alcohol. 11. In view of this it follows that the Deputy Commissioner’s order dated 30.10.2001 as confirmed by the Commissioner’s order dated 20.03.2003 have to be sustained. No doubt in their said orders the Deputy Commissioner and the Commissioner mentioned about the offence under Section 34(a) of the Act which deals with the offence of import, export, transport, manufacture, collection or possession or sale of any intoxicant. The substance of the case set out by the said officers in their orders would however show that they dealt with the case in substance as a case of transportation of black jaggery in the petitioner’s auto trolley for use in the manufacture of ID liquor and this offence false under Section 34(e) of the Act. It therefore follows that they dealt with the case properly and that the mention of Section 34(a) of the Act instead of Section 34(e) of the Act can be said to be a mistake and it does not vitiate the orders. 12. Accordingly for the aforesaid reasons we allow this writ appeal and consequently the writ petition stands dismissed. No costs. _____________________ A.GOPAL REDDY, J _____________________ N.RAVI SHANKAR, J 7th April 2011 CVRK [1] 2002(1) ALT 611 (F.B.)