IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTEENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No: 16529 of 2003 BETWEEN: Nallala Ram Reddy, S/o Sanjeeva Reddy, R/o Gopal Rao Building, KUC Road, Hanamkonda, Warangal District. ... PETITIONER AND 1 The Commissioner, Prohibition & Excise of A.P., Hyderabad. 2 The Deputy Commissioner of Prohibition & Excise, Warangal Division, Warangal, Warangal District. 3 Sub-Inspector of Police, Police Station, Hanamkonda, Warangal, Warangal District. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the order dated 20-11-2002 in proceedings Cr.No.2928/2001/CPE/D4 passed by the I respondent whereby confirming the order dated 30-5-2001 in proceedings Cr.No.1775/96/P& E/B5 passed by the 2nd respondent as illegal, arbitrary and pass such other order or orders. Counsel for the Petitioner: MR.A.PRABHAKAR RAO Counsel for the Respondents: GP FOR PROHIBITON & EXCISE The Court made the following: ORDER: Petitioner seeks a Writ of Mandamus to declare the order dated 20.11.2002 in proceedings Cr.No.2928/2001/CPE/D4 passed by the first respondent whereby confirming the order dated 30.05.2001 in proceedings Cr.No.1775/96/P& E/B5 passed by the second respondent as illegal and arbitrary. 2. Petitioner submits that he is the owner of the car bearing No. AP16 E 2556 and on 25.07.1996, at about 16.40 hours the Sub-Inspector of Police, Hanamkonda/third respondent intercepted the car and seized the same on the allegation that the said car was found transporting 30 full bottles of Indian Liquor in contravention of Section 8(b) of the Andhra Pradesh Prohibition Act, 1995 (for short ‘the Prohibition Act’). The police conducted panchanama before the mediators and seized the car along with the contraband and arrested him. Based on the said panchanama report a case is Cr.No.173 of 1996 dated 25.07.1996 was registered for violation of Section 8 (a) & (b) of the Prohibition Act and remanded him to judicial custody. The third respondent after investigation also filed a charge sheet before the Special Judicial First Class Magistrate for Prohibition and Excise Cases, Warangal and the learned Magistrate, acquitted the petitioner in C.C.No.795 of 1997 by judgment dated 25.04.2001 holding that the prosecution failed to establish the guilt of the petitioner and the petitioner was found not guilty of the offence under Section 8 (b) of the Prohibition Act. 3. Petitioner further submits that while so, during the pendency of confiscation proceedings the Deputy Commissioner of Prohibition & Excise/second respondent released the said vehicle on 18.02.2007 on furnishing bank guarantee of Rs.25,000/-. Thereafter, the second respondent passed confiscation orders in Cr.No.1775/96/P&E/B5 dated 30.05.2001 confiscating the said vehicle. Against the said order, the petitioner filed an appeal before the Commissioner of Prohibition and Excise/first respondent, who by order in Cr.No.2928/2001/CPE/D4 dated 20.11.2002, dismissed the appeal. 4. Learned counsel for the petitioner submits that the criminal case against the petitioner ended in acquittal on the ground that the charges have not been established and in fact, the petitioner was not present at the time of occurrence of the crime and the panchanama do not contain his signatures, therefore, the confiscating authority i.e. the Deputy Commissioner of Prohibition & Excise, ought to have taken into consideration the judgment of the criminal Court dated 25.04.2001 and without taking into consideration the judgment, the confiscation order dated 30.05.2001 has been erroneously passed. He further submits that, no doubt, the petitioner could not avail the reasonable opportunity before the Deputy Commissioner of Prohibition & Excise but there is no material to the satisfaction of the confiscating authority with regard to the involvement of the petitioner’s vehicle in the said crime. He further submits that the appellate authority observing that the petitioner was caught red handedly while transporting the liquor in the Maruthi car erroneously rejected the contention of the petitioner that he had no knowledge about the illegal transportation of the liquor and that he was not present. 5. (a) Counter has been filed stating that during the course of the interrogation the petitioner/accused cum owner of the said car confessed that he is doing the business of illicit trade of Indian Liquor since imposition of prohibition in the State of Andhra Pradesh by getting the Indian Liquor stocks from Maharashtra and Karnataka States along with his friends and selling the same. Insofar as the present incident is concerned, it is stated that the police seized 30 OT whisky bottles from the car of the petitioner under the cover of panchanama and petitioner was arrested and brought to the Police Station Hanamkonda and registered a case vide Cr.No.173 of 1996 and remanded him to judicial custody. The seized car along with the contraband was produced before the Deputy Commissioner of Prohibition & Excise, Warangal Division for initiation of confiscation proceedings under Section 13 of the Prohibition Act. (b) It is stated that in the instant case the petitioner/accused and the owner of the vehicle is one and the same and he himself transported the prohibited IML and as there are sufficient grounds for confiscation the proceedings have been initiated under Section 13 of the Prohibition Act. Accordingly, a show cause notice dated 15.10.1996 was issued calling upon the petitioner to submit a written explanation as to why the said car should not be confiscated for illicit transportation of prohibited Indian made Foreign Liquor by giving 15 days time for submitting the explanation. The show cause notice was served on 15.10.1996 and the petitioner submitted his explanation on 31.10.1996 through Advocate denying all the allegations made in the show cause notice and stated that he was illegally implicated in the said case on 23.07.1996 and forcibly took his car in his absence and registered a false case and accordingly he requested to drop the confiscation proceedings. (c) The Deputy Commissioner of Prohibition & Excise posted the case for hearing on 22.12.1998 but the same was adjourned to 12.01.1999 and on 12.01.1999 the petitioner attended for hearing and requested for adjournment since his counsel did not attend, therefore, the case was posted to 02.02.1999. On 02.02.1999, the petitioner’s counsel appeared and requested time to advance his arguments, accordingly, the case was posted to 03.03.1999 and thereafter it was adjourned to 16.03.1999. The counsel for the petitioner appeared on 16.03.1999 and requested to post the case on 30.03.1999, accordingly, the case was finally adjourned to 13.04.1999, on which date, neither the counsel for the petitioner nor the petitioner appeared to prove his innocence or made any representation. Thus, the Deputy Commissioner of Prohibition & Excise based on the material available passed the confiscation order under Section 13(2) of the Prohibition Act. As against the said order, the Commissioner of Prohibition & Excise dismissed the appeal filed by the petitioner. 6. Learned Government Pleader for Prohibition & Excise submits that the petitioner, being the owner of the car, was caught red handedly while illegally transporting the prohibition IML and the car was seized under the cover of panchanama. The acquittal of the petitioner in C.C.No.795 of 1997 dated 25.04.2001 has nothing to do with the confiscation proceedings under the Prohibition Act and when two parallel proceedings have been contemplated, one cannot depend on other as they are independent and distinct. 7. Learned counsel for the petitioner relied on two judgments of this Court i n A.D.S SARMA v. DEPUTY REGISTRAR OF COOPERATIVE SOCIETY, AMALAPURAM, EAST GODAVARI DISTRICT[1] and R. YADAIAH v. PROHIBITION & EXCISE SUPERINTENDENT [2] . 8. The first case relates to the initiation of surcharge proceedings even after acquittal of the accused for the offence under Section 408 of the Indian Penal Code by the criminal Court on the self-same allegations relating to misappropriation or fraudulent retention of money or for criminal breach of trust. This Court held that the acquittal of the employee of the society by criminal Court is not a bar for initiating surcharge proceedings under Section 60 or 61 of the Andhra Pradesh Cooperative Societies Act, but the authority cannot initiate the surcharge proceedings altogether ignoring the judgment of the competent criminal Court based on the same set of facts and same set of circumstances. The second case relates to the suspension of TFT licence before renewal wherein the licence holders were acquitted by the criminal Court and the involvement of the TFT licence holders was not established and there was no prohibition for grant or renewal of licence, in those circumstances, this Court held that refusal to renew the TFT licence pending criminal proceedings is illegal and contrary to the Prohibition Act. 9. Learned counsel for the petitioner also relied on a judgment of the Supreme Court in JACKARAN SINGH v. STATE OF PUNJAB[3]. In the said case the accused was found guilty of the offence under Section 302 of the Indian Penal Code and Section 25 of the Arms Act by the Special Court, Ferozepur mainly on the ground that the deadly weapon was seized from his possession. None of the panch witnesses have been examined at the trial and the so-called disclosure statement does not bear the signature or thumb impression of the accused. Even the recovery memo of the weapon (revolver) and the catridges does not bear the signature of the accused. It was held that the absence of the signatures or thumb impression of the accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement. Accordingly the defence version that the accused was arrested during the night as alleged by the prosecution is doubtful. In the said case the accused denied the ownership of the crime revolver and the prosecution has led no evidence to show that the crime revolver belongs to the accused. In those circumstances, the Apex Court held that the prosecution has not been able to establish the case against the accused beyond reasonable doubt. 10. The aforesaid case has no application to the instant case, as under Section 27 of the Indian Evidence Act, so much of such information received from the accused with regard to the extent of recovery may alone be admissible. In the instant case, there is no further recovery based on the information but the entire case of the prosecution is that the petitioner was caught red handedly while transporting the prohibited IML in the presence of the panch witnesses and the signatures of the panch witnesses were admitted before the criminal Court, therefore, Section 27 of the Evidence Act has no application to the instant case. 11. I have considered the rival contentions. In the instant case, even before the criminal Court the prosecution examined the panch witnesses and they have admitted their signatures on the panchanama stating that the signatures contained on the panchanama belong to them but they have turned hostile. The record produced by the learned Government Pleader discloses the arrest caused, the remand report and the petitioner obtaining bail from the criminal Court, therefore, it cannot be said that a false case has been foisted against the petitioner and that he was not present at the time of the crime. In fact, there is no dispute with regard to the ownership of the said vehicle. A perusal of the judgment of the criminal Court goes to show that the petitioner was acquitted mainly on the ground that the panch witness have become hostile and that there was some lapse and delay in sending the report, therefore it was observed that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt. 12. Learned counsel for the petitioner submits that there was no justification on the part of the Deputy Commissioner of Prohibition & Excise in not taking into consideration the judgment of the criminal Court as admittedly the confiscation proceedings were passed on 30.05.2001 whereas the petitioner was acquitted vide judgment dated 25.04.2001. 13. Under Section 7 of the Prohibition Act, the selling, buying, being in possession and consumption of liquor, otherwise than in accordance with the provisions of the Prohibition Act or Excise Act, is prohibited. Under Section 8(a) of the Prohibition Act the consumption of liquor except in accordance with the provisions of the Prohibition Act or Excise Act, Rules, Notifications, Orders, licence or permit issued thereunder is an offence liable for punishment. Under Section 8(b) of the Prohibition Act, possession, collection, sale, transportation, production or manufacture of any liquor except otherwise in accordance with the provisions of both the Acts is also liable for punishment. Under Section 12 of the Prohibition Act without prejudice to the powers of the Excise Officers under Section 46 of the Andhra Pradesh Excise Act, an offence committed under the Prohibition Act, the liquor by means of which offence has been committed shall liable to confiscation along with the receptacles, packages, coverings, animals, vessels, carts or other vehicles used to hold or carry the same. 14. Learned counsel for the petitioner submits that unless the offence is committed i.e. the criminal Court finds the petitioner guilty of the offence the vehicle cannot be confiscated. 15. A perusal of joint reading of Sections 12, 13 and 13-D of the Prohibition Act goes to show that notwithstanding the launching of criminal case and without any reference to the acquittal or conviction, the initiation of confiscation proceedings by the Deputy Commissioner of Prohibition & Excise is independent and separate. Though for a criminal action the offender is acquitted, at the same time, the vehicle and the goods seized by means of which the liquor is transported, are liable for confiscation. Under Section 13(1) irrespective of the initiation of criminal proceedings, the goods seized, which are liable for confiscation, shall be produced before the Deputy Commissioner of Prohibition & Excise without any unreasonable delay and on production of the seized property, the Deputy Commissioner of Prohibition & Excise, if satisfied that an offence has been committed under the Prohibition Act, then such goods seized, which are liable for confiscation under Section 12, can be confiscated. In the instant case a show cause notice as contemplated under Section 13-A of the Prohibition Act was issued and in fact, the explanation was submitted but the petitioner could not rebut the allegations made in the show cause notice with regard to the transportation of the prohibited Indian Liquor. The petitioner admittedly has not examined any of the panch witnesses or placed any material before the Deputy Commissioner of Prohibition & Excise to prove his innocence, therefore, it cannot be said that the vehicle was not involved in the transportation of the prohibited Indian Liquor. In view of the aforesaid facts and circumstances of the case, the contention of the petitioner that he had no knowledge and that he was not at all present, is without any basis whatsoever. Therefore, I do not see any merit in the writ petition. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J July 14, 2008 Note: LR Copy to be marked (B/o) DSK [1] 2002 (5) ALD 250 [2] 2002 (2) ALD 839 [3] AIR 1995 SC 2345