THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18022 of 2003 Date:16.7.2010 Between: Baline Subhash ..... PETITIONER AND The Commissioner of Prohibition & Excise and others. .....RESPONDENTS Counsel for the Petitioner : Sri A.Prabhakar Rao Counsel for the Respondent: A.G.P. for Excise The Court made the following : THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18022 of 2003 Order: This writ petition is filed for a mandamus to set aside order in C.R. No.2313/2001/CPE/D4, dated 19.2.2003 passed by respondent No.1, whereby he has confirmed the order dated 31.5.2001 in C.R. No. 2323/98/P&E/B2, dated 31.5.2001 of respondent No.2. The petitioner is the owner of a jeep bearing No. MTG 7386. On 14.12.2008, when the vehicle was proceeding on Mulugu X roads, respondent No.3 seized the same on the ground that two of the passengers travelling in the said jeep were carrying 210 Ltrs., of I.D. liquor in their baggage. Crime No.359/98-99 was registered under Section 7(a) read with Section 8(e) of the A.P. Prohibition Act, 1995. A show cause notice was issued by respondent No.2 calling upon the petitioner as to why the vehicle should not be confiscated. The petitioner submitted his explanation and also the affidavits of the panch witnesses, who were examined by respondent No.2 with reference to what they have stated in their affidavits. After considering the material on record, respondent No.2 passed order dated 31.05.2001 confiscating the vehicle along with the contraband. Feeling aggrieved by the said order, the petitioner filed a statutory appeal before respondent No.1, who, by his order dated 19.02.2003, confirmed the order of respondent No.2. The petitioner has therefore filed the present writ petition. A counter affidavit has been filed by respondent No.3 wherein it is inter alia stated that though the panch witnesses have filed their affidavits, during the hearing, they have deposed that they do not remember as to what happened long time back. It is also averred that the mens rea or knowledge, have no relevance for confiscation of the vehicle. At the hearing, Sri A. Prabhakar Rao, learned counsel for the petitioner, advanced two submissions, namely; (i) that the affidavits given by the panch witnesses before respondent No.2 clearly showed that the seizure has not taken place in their presence and that their signatures were obtained on blank papers. He further stated that respondent No.2 has cross-examined the panch witnesses though he has no such power and that even in the cross-examination, nothing was elicited from them to discredit the contents of their affidavits and (ii) that the petitioner had no knowledge or mens rea in commission of offence and therefore the vehicle is not liable for confiscation. As regards the first submission of the learned counsel for the petitioner, the panch witnesses in their affidavits, have stated that no seizure has taken place in their presence and that they have signed on blank papers. However, the record produced by the learned Assistant Government Pleader reveals that during the hearing of the case, respondent No.2 has enquired the panch witnesses about their statements. He has noted on the file that the panch witnesses stated that they have forgotten what happened long back. The learned counsel for the petitioner submitted that respondent No.2, being quasi judicial authority ought not to have cross-examined the panch witnesses. Under Section 46(6) of the A.P. Excise Act, 1968, respondent No.2 is vested with the power of a Civil Court when making enquiries under this Section in respect of receiving evidence; summoning and enforcement of attendance of any person and examining him on oath; and compelling the production of documents. Respondent No.2 stated in the file that he has examined the panch witnesses who have given their evidence. In my opinion such power is conferred on him by the above mentioned provision. Therefore, I do not find any illegality in the procedure followed by respondent No.2 in eliciting the truth or otherwise of the statements given by the panch witnesses. Coming to the submission of the learned counsel for the petitioner that as the evidence of panch witnesses goes to show that the seizure has not taken place in their presence, as noted above, though they have stated so in their chief examination, on examination by respondent No.2, they are stated to have informed that they have forgotten as to what had happened as the seizure had taken place long back. That the panch witnesses made such a statement is not denied by the petitioner. These uncontroverted facts clearly show that the panch witnesses have vacillated and retracted their earlier statements. Therefore, no credence can be given to the affidavits filed by them. As such, it cannot be stated that the seizure has not been proved. The issue whether knowledge or mens rea of the owner is necessary for confiscation of a vehicle involved in commission of an Excise offence is no longer res integra in view of the judgment of the Supreme Court in Commissioner, Prohibition and Excise, Andhra Pradesh and another Vs. Sharana Gouda – (2007) 6 SCC 42 - wherein the Supreme Court has taken into consideration the amendment to Section 45 of the A.P. Excise Act, 1968, which was brought into force with effect from 26-11-1993, whereby the proviso to the said Section was deleted. The Supreme Court held that with the deletion of the said proviso, the knowledge or mens rea on the part of the owner of the property is irrelevant and that the position has changed after omission of the said proviso. In view of the above mentioned judgment of the Supreme Court, this contention of learned counsel does not merit acceptance. In the light of the above, I do not find any illegality in the orders passed by respondents 1 and 2. Lastly, learned counsel for the petitioner submitted that in pursuance of the interim order granted by this Court, the vehicle was released to the petitioner on his furnishing bank guarantee for a sum of Rs.45,000/-. He submitted that the petitioner may be permitted to return the vehicle and take back the bank guarantee. In my opinion, as the vehicle is confiscated, the respondents are entitled to take back the possession of the vehicle and sell the same. If the respondents realize the value of the vehicle, as assessed at the time of seizure by sale of the vehicle the petitioner is entitled to return of the bank guarantee as a whole. In case the respondents do not realize the full value of the vehicle on such sale, the short fall amount may be realised by encashing the bank guarantee, and the balance amount shall be refunded to the petitioner. The writ petition is accordingly dismissed. As a sequel to disposal of main petition, W.P.M.P. No.22435 of 2003 is disposed of as infructuous. __________________________ C.V. NAGARJUNA REDDY,J DATE: 16th July, 2010 Pnb/Es