IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FOURTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 18045 of 2004 Between: D. Prabhakar Reddy @ Mallanna, S/o. Rami Reddy, R/o.9-12, Long Beach Apartments, Valmikinagar, Thiruvanmyar, Chennai. ..... PETITIONER AND 1 Commissioner of Prohibition & Excise, Andhra Pradesh, Hyderabad. 2 Deputy Commissioner of Prohibition and Excise, Guntur. 3 Sub-Inspector of Police, Gudur Police Station, Nellore 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 will be pleased to to issue a Writ of Mandamus, or any other appropriate writ, order or direction, declaring the action ofthe 2nd respondent, dt. 22-12-2001 and consequential orders of the 1st respondent, dt. 16-9-2003 in crme No. 749/2002/CPE/D4 conﬁrming the orders of the 2nd respondent, as being, arbitrary, illegal and unreasonable, apart from contrary to the law laid down by this Hon'ble High Court and Consequently set aside the same Counsel for the Petitioner:MR.P.VENKATA RAO 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.18045 of 2004 ORDER: The petitioner is owner of an ambassador car bearing No.TN 07E 0518. Third respondent conducted vehicle check on 20.08.2001 and found 96 nip bottles in the car. Crime No.98 of 2001 was registered under Section 34(a) of the Andhra Pradesh Excise Act, 1968 (the Act, for brevity) and the case was reported to second respondent, who gave interim custody of the vehicle on condition of the petitioner furnishing bank guarantee for Rs.75,000/-. Subsequently after issuing show-cause notice, obtaining explanation, second respondent passed orders on 22.12.2001 ordering conﬁscation of the vehicle involved in commission of excise oﬀence. The petitioner carried the matter in appeal under Section 46-C of the Act before ﬁrst respondent, who dismissed the appeal on 16.09.2003. Aggrieved by the same instant writ petition is ﬁled. The petitioner mainly contends that he is ignorant and there is no mens rea. Whether mens rea is a condition precedent for conﬁscation of a motor vehicle involved in commission of offence under the Act? A Full Bench of this Court in P.Gokul Anand v Commisioner of Prohibition and Excise[1] and V.Narayana Rao v State of Andhra Pradesh[2] took a view that there cannot be any order of conﬁscation of a vehicle involved in commission of excise oﬀence when knowledge or mens rea to commit such oﬀence on the part of owner is absent. The Full Bench also held that mens rea is one of the relevant considerations before passing an order of conﬁscation of the seized vehicle allegedly involved in excise oﬀence. The same view was also taken in an unreported Judgment in Sharana Gouda v Commissioner of Prohibition and Excise[3]. This was challenged before Supreme Court in Criminal Appeal No.1137 of 2002. Supreme Court in Commr., Prohibition and Excise v Sharana Gouda[4] (Criminal Appeal No.1137 of 2002) reversed the decision of the Full Bench of this Court observing that mens rea is not required to be established before a vehicle carrying contraband liquor is conﬁscated. Therefore, the question posed in this writ petition is no more res integra. The observations of Supreme Court are as follows. 7. The only question for consideration is whether mens rea required to be established by the appellant. In this connection Section 45 of the Act needs to be noted. There was originally a proviso to Sub-section (2) thereof. The said proviso was omitted by Andhra Pradesh Act 4 of 1994 w.e.f. 26.11.1993, Section 45 after the omission of the proviso reads as follows. 45. 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, or transported, 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. 8. The proviso which has been omitted reads as follows: 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. 9. The eﬀect of omission of the proviso does not appear to have been considered by the High Court. When the proviso was part of the statute, it was provided that 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. At that stage there was a prohibition on conﬁscation if owner of the property in question had no reason to believe that such oﬀence was being or was likely to be committed. This was the provision if oﬀender was not the owner of the property. The position has changed after omission of the proviso. The High Court does not appear to have kept this aspect in view. Therefore, the impugned judgment of the High Court is indefensible and is set aside. In view of the binding authority, the writ petition is dismissed. No costs. _____________ (V.V.S.RAO, J) 24th October, 2008 GHN To 1 Commissioner of Prohibition & Excise, Andhra Pradesh, Hyderabad. 2 Deputy Commissioner of Prohibition and Excise, Guntur. 3 Sub-Inspector of Police, Gudur Police Station, Nellore District. 4 2CCs to GP FOR PROHIBITION & EXCISE 5 2CD copies Form-NIC-OGS/WP{RLD} [1] 2002(4) ALT 522 (FB) [2] 2002(5) ALT 91 (FB) [3] W.P.No.27180 of 1999, dated 11.07.2002 [4] (2007) 6 SCC 42