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 MR JUSTICE V.V.S.RAO WRIT PETITION NO : 9569 of 2003 Between: G. Hussain Sha S/o G. Md. Ibrahim R/o Bandi Atmakur Village and Mandal, Kurnool District. ..... PETITIONER AND 1 The Commissioner of Prohibition and Excise, Hyderabad. 2 The Deputy Commissioner of Prohibition and Excise, Kurnool. .....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 to issue Writ of Certiorari to call for the records relating to Cr.No. 3886/CPE/2001/D4 on the ﬁle of the Commissioner of Prohibition and Excise, Hyderabad and quash the orders dated 20-1-2003 in Cr.No. 3886/CPE/2001/D4 on the ﬁle of the Commissioner of Prohibition and Excise, Hyderabad conﬁrming the orders of the 2nd Respondent passed in Rc. No. B1/1803/2001 dated 29-10-2001 after declaring the same as illegal, arbitrary. Counsel for the Petitioner:MR.P.NAGENDRA REDDY Counsel for the Respondents: GP FOR PROHIBITION & EXCISE The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.9569 of 2003 ORDER: The petitioner is owner of Hero Honda Motor Cycle bearing No.AP 21 D 47 of 1997 model. On an allegation that said vehicle is used for transporting 20 litres of ID arrack, the Sub-Inspector of Police, P.S. Bandi Atmakur, seized the vehicle and submitted a report to second respondent. By an order dated 29.10.2001, second respondent passed orders for conﬁscation of the vehicle under Section 13(2) of the Andhra Pradesh Prohibition Act, 1995 (the Act, for brevity). Be it noted that during the pendency of the conﬁscation proceedings it appears second respondent granted interim custody of the vehicle on condition of the petitioner furnishing bank guarantee. Be that as it is against the order of conﬁscation the petitioner unsuccessfully preferred an appeal before ﬁrst respondent which was dismissed on 20.01.2003. This is subject matter of challenge in this writ petition. Learned counsel for the petitioner submits that subsequent to seizure of the vehicle a Criminal Case, being CC.No.360 of 2001 on the ﬁle of the Court of the Judicial Magistrate of First Class, Nandyal, against the accused (not the petitioner) was ﬁled, which ended in conviction. He also submits that when the quantity of ID liquor allegedly seized from the vehicle is less than 101 litres (notiﬁed quantity as of now as per the Act), the oﬀence is compoundable under Section 11-B of the Act. Therefore, the vehicle may be released. Learned Government Pleader for Prohibition and Excise, making reference to Sections 8(b)(i)(ii) and 11-B of the Act, submits that even when the oﬀence is compoundable, the property conﬁscated cannot be released. Nextly he submits that even when the property seized and liable for conﬁscation has to be released, it can only be done only on payment of estimated value thereof as estimated by the Deputy Commissioner of Prohibition and Excise. When once excise oﬀence was registered against the petitioner, an oﬀence under Section 8(b) of the Act for possession of ID liquor is not compoundable. Such an oﬀence was made compoundable by amendment made by Andhra Pradesh Act No.35 of 1995. The same was subsequently amended by Andhra Pradesh Act No.5 of 1997. After such amendment under Section 8(b)(i) of the Act where the liquor involved in the oﬀence is less than such quantity as may be notiﬁed in this behalf with imprisonment for a term which shall not be less than six months but which may extend up to three years, the same is made compoundable under Section 11-B(1) of the Act, which reads as under. 11-B. Compounding of Oﬀences:- (1) The Collector or any Prohibition and Excise Oﬃcer specially empowered in that behalf may accept from any person who is reasonably suspected of having committed an oﬀence falling under clause (a) or sub-clause (i) of clause (b) or the proviso to sub-clause (ii) of clause (b) as it was in force, of Section 8 or Section 9, a sum of money as may be prescribed but not exceeding the maximum ﬁne which can be imposed for the oﬀence under the provisions of the Act, by way of compensation for the oﬀence which may have been committed and in all cases in which any property has been seized as liable for confiscation under this Act, may release the same on payment of the value thereof as estimated by such officer: Provided that where the property so seized is a liquor produced or manufactured in contravention of this Act, such liquor shall not be released but shall be disposed of in such manner as may be prescribed: Provided further that such sum of money shall not be accepted from any person who is reasonably suspected of having committed an oﬀence under sub-clause (i) of Clause (b) of Section 8 without the prior approval of the Commissioner of Prohibition and Excise. A perusal of the same would show that even where an oﬀence under Section 8(b) of the Act is compounded, the property liable for conﬁscation cannot be released unless the oﬀender pays the value of the property seized. In this case a criminal case already ﬁled and the oﬀender was convicted. At this stage, it is not possible to apply Section 11-B of the Act insofar as the release of the property liable for conﬁscation is concerned. However, as the petitioner is the owner and the oﬀender is already convicted it would be in the interests of justice to give an opportunity to the petitioner to pay the value of Hero Honda vehicle and got it released. As noticed supra, the petitioner, while taking interim custody of the vehicle, furnished FDR for Rs.22,000/-. Therefore, this writ petition is disposed of giving liberty to the petitioner to approach second respondent with an application for release of conﬁscated vehicle. Second respondent may get the vehicle valued by a Motor Vehicles Inspector and advice the petitioner to pay the amount. In case the petitioner fails to pay the amount as assessed by the Motor Vehicles Inspector, it shall be open to second respondent to encash FDR or seize the vehicle. No costs. _____________ (V.V.S.RAO, J) 23rd October, 2008 GHN To 1 Andhra Pradesh Industrial Infrastructure Corporation Ltd., Rep. by its Chairman & Managing Director, Parishram Bhavan, Basheerbagh, Hyderabad-28 2 The Zonal Manager, A.P. Industrial Infrastructural Corporation Ltd., Jeedimetla Zone, Industrial Estate Moulali, Hyderbad-18. 3 2CD copies Form-NIC-OGS/WP{MSKM}