THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.1137 of 2004 September 19, 2011 Between: The Commissioner of Prohibition & Excise, Andhra Pradesh, Hyderabad And another .. Appellants And P.Venkat Krishna, S/o.Sri Appalanaidu …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.1137 of 2004 ORDER: (Per Hon’ble Sri Justice V.V.S. Rao) This appeal is against the order of the learned Single Judge in W.P.No.4292 of 1998, dated 28.1.2004 whereby and whereunder the order of the second appellant dated 12.12.1997 directing confiscation of auto rikshaw bearing No.AP 31V 1942, as confirmed by the first appellant on 20.1.1998, was set aside on the ground that the second appellant failed to record a finding that the respondent had knowledge about the commission of offence by use of his vehicle. In support of the appeal, the Government Pleader for Excise placed reliance on the decision of the Supreme Court in Commissioner, P&E, A.P. v Sharana Gouda[1]. He would submit that by the Andhra Pradesh Excise (Amendment) Act 4 of 1994, with effect from 26.11.1993, the proviso to Section 45(2) of the Andhra Pradesh Excise Act, 1968 (the Act) was omitted and, therefore, the proof of mens rea on the part of the owner of a vehicle used in the commission of excise offence is not required. Per contra, the Counsel for the respondent submits that apart from the grounds of mens rea the order of confiscation passed by the Primary Authority is also vitiated on several grounds. He would point out that the respondent was not issued notice before seizure of the vehicle; the allegation that the vehicle was carrying 14 litres of Illicitly Distilled (I.D.) liquor at the time of seizure was not proved by sending sample to the laboratory; and the accused were no way connected with the respondent. The issue whether the mens rea is required to be established for the purpose of exercising power under Section 45 (1) of the Act is no more res integra. I n Sharana Gouda the Supreme Court considered this aspect. It would be apt to quote Paras 7 to 9 here. The only question for consideration is whether mens rea was 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 respectable, 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" 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." 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 any thing 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 position 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. The other questions – whether the allegation that the auto rikshaw was carrying I.D. liquor at the time of offence and whether the notice was issued to the respondent; are all matters which stand concluded by the judgment of the learned Single Judge. When the learned Single Judge proceeded only on one ground and came to the conclusion that absence of mens rea would bar confiscation of the vehicle involved in the excise offence, at the stage of appeal these issues cannot be gone into. The writ appeal is, accordingly, allowed and the order of the learned Single Judge is set aside. No costs. ________________ (V.V.S. RAO, J) ___________________ (K.G.SHANKAR, J) September 19, 2011 YS [1] (2007) 6 SCC 42