IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF JUNE, TWO THOUSAND TEN PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.11255 of 2004 Between: Sri Syeed Sadiq Ali … Petitioner And The Deputy Commissioner, Prohibition & Excise, Hyderabad & another. … Respondents Counsel for the petitioners : Sri Seetharam Chaparla Counsel for the respondents: AGP for Prohibition & Excise This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.11255 of 2004 ORDER:- This writ petition is filed for a Mandamus to declare the action of respondent No.1 in confiscating vehicle bearing No.AP 11V 2846 belonging to the petitioner vide proceedings No.Cr.No.C4/3132/2002, dated 18.12.2003, which was confirmed by respondent No.2 vide proceedings No.Cr.No.118/2004/CPE/D4, dated 03.06.2004, as illegal and unconstitutional. I have heard Sri Seetharam Chaparla, learned counsel for the petitioner and the learned Assistant Government Pleader for Prohibition and Excise appearing for the respondents. The petitioner is the owner of Auto bearing No.AP 11V 2846. The investigating officer of the excise department intercepted the Auto on 10.06.2002 and found 354 sachets of illicitly distilled (ID) liquor being transported in the said Auto. Crime No.12 of 2003 was registered for the offence under Section 7(a) read with Section 8(e) of the A.P. Prohibition Act, 1995 and a show cause notice was issued to the petitioner for confiscation of the seized property. The petitioner filed his explanation on 28.12.2002 to the said show cause notice, which was rejected by respondent No.1 by ordering confiscation of the Auto vide his proceedings dated 18.12.2003. Feeling aggrieved by the said order, the petitioner filed an appeal before respondent No.2, who by his order dated 03.06.2004, dismissed the same, whereby confirming the order of respondent No.1. At the hearing, the learned counsel for the petitioner advanced two contentions, namely, (i) that the material on record including the orders passed by respondent Nos.1 and 2 does not disclose commission of an excise offence, inasmuch as the nature of the contents of the sachets seized from the petitioner’s auto has not been discussed and (ii) that even assuming that an excise offence was committed, the petitioner cannot be held responsible, as, admittedly, the alleged material was found with and seized from the possession of the person, who was carrying the said material in the auto and was prosecuted as accused No.1 in Crime No.312 of 2002-03. I have carefully considered the submissions of the learned counsel for the petitioner. With regard to the first contention of the learned counsel, it is evident from the orders of respondent Nos.1 and 2 that 354 sachets of ID liquor, which means illicitly distilled liquor, were found in the auto belonging to the petitioner. As the very expression “illicitly distilled liquor” indicates that it was the liquor, which was not distilled with the permission of or under the licence of the excise authorities. Therefore, in the absence of any proof adduced by the petitioner before the competent authority that the liquor, which was found in the auto, was manufactured under a licence and being transported under a valid permit, the finding of respondent Nos.1 and 2 that the contraband was found to be illicitly distilled liquor cannot be interfered with. This contention is accordingly rejected. With regard to the second contention of the learned counsel, it is necessary to consider Section 45 of the A.P. Excise Act, 1968, which reads as under: “Liability of certain things to confiscation:- Whenever an offence has been committed, which is punishable under this Act, following things shall be liable to confiscation, namely:- (1) any intoxicant, materials, still utensil, implements or apparatus in respect of or by means of which such offence has been committed; (2) any intoxicant lawfully imported, transported, or manufactured, had in possession, sold or brought along with, or in addition to any intoxicant liable to confiscation under clause (1); and (3) any receptacle, package, or covering in which anything liable to confiscation under clause (1) or clause (2), is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, vessel, raft or other conveyance used for carrying the same.” Under the above reproduced provision when an offence was found to have been committed, the things, which are liable for confiscation, have been enumerated in the said provision. These things include any intoxicant, materials, still, utensil, implements etc., and any receptacle package or covering in which anything is liable for confiscation under clause (1) or clause (2) is found along with any animal, vehicle, vessel, raft etc. It is pertinent to note that prior to the Amendment Act 4 of 1994, Section 45 of the Act contained the following proviso: “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.” By the abovementioned amendment, the said proviso was deleted. With the deletion of the said proviso, it is not permissible for the owner of the vehicle to contend that he has neither knowledge nor is concerned with the commission of the offence. The language of Section 45 is couched in such a manner that de hors the proviso, which was deleted, it is irrelevant whether the contraband was seized from the possession of the owner of the vehicle, its driver or any other third person for confiscation of the animal, vehicle, vessel, as the case may be, if it is found used in the commission of an offence. Indeed, the effect of the deletion of this proviso was considered by the Hon’ble Supreme Court in Commissioner, Prohibition and Excise, A.P., and another Vs. Sharana Gouda[1] and it was held that 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. It was further held that the position has changed after omission of the proviso. For these reasons, I am unable to accept the second contention of the learned counsel for the petitioner. For the abovementioned reasons, the writ petition is dismissed. As a sequel to dismissal of the writ petition, WPMP.No.14297 of 2004 filed by the petitioner for interim relief is also dismissed. _____________________________ C.V. NAGARJUNA REDDY, J Date: 30.06.2010 ES [1] (2007) 6 SCC 42