IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 24643 of 2006 Between: Rayapudi Prabhakar S/o. Venkateswarlu R/o. Cheruvu Madaram, Nelakondapally Mandal, Khammam District. ..... PETITIONER AND 1 The Commissioner, Prohibition and Excise of A.P., at Hyderabad. 2 The Deputy Commissioner, Prohibition and Excise Warangal Division, Warangal. 3 The Prohibition and Excise Inspector, Prohibition and Excise Station, Nelakondapalli, .....RESPONDENT(S) 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 an appropriate writ or order or direction more particularly one in the nature of writ of Certiorari to call for the records relating to order dt. 19-7-2006 made in proceedings Cr.No. 17944/2005/CPE/D4 passed by the 1st Respondent herein whereby confirming the order dt. 7-10-2005 in Cr.No. 1098/P&E/2004/B3 passed by the 2nd Respondent herein whereby whereunder confiscating the auto bearing No. AP 16 TU 2341 and 500 Kgs of black jaggery and 50 kgs of alum and set aside the same by holding the aforesaid proceedings as illegal arbitrary and without jurisdiction and consequently direct the respondents to release the Bank Guarantee furnished for release of the vehicle, black jaggery and alum and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.A.PRABHAKAR RAO Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 24643 of 2008 Oral Order: The order of the Commissioner, Prohibition and Excise of Andhra Pradesh dated 19-06-2006 rejecting the appeal preferred by the petitioner and confirming the order dated 07-10-2005 of the 2nd respondent—The Deputy Commissioner, Prohibition and Excise, Warangal Division, Warangal whereby the 2nd respondent ordered confiscation of Autorickshaw bearing No. AP 16 TU 2341 along with a quantity of 500 Kgs of black Jaggery and 50 Kgs of Alum transported in the autorickshaw, is challenged in this writ petition. The petitioner is the owner of the autorickshaw. He claims that the vehicle was engaged on 18-03-2004 for transportation of black jaggery and Alum from Sri Vasavi Kanyaka Parameswari Kiranam and Jaggery Merchant, Kusumanchi village to Srinivasa Kiranam, Pandillapalli village. On 18-03-2004 on receipt of information about the transportation of black jaggery and alum for the purpose of manufacturing of illicit distilled liquor, the Prohibition and Excise staff intercepted the petitioner’s autorickshaw near NSP Canal Bridge, Kothru. The autorickshaw was searched and two persons including the driver were interrogated. The inspecting party found ten gunny bags containing 50 Kgs each of black jaggery and another bag containing 50 Kgs of alum. The driver, one of the accused disclosed to the inspecting party that he was transporting the black jaggery in the autorickshaw and that the black jaggery and alum belong to him. The 2nd accused -- K. Venkateshwarlu who was also travelling in the autorickshaw informed the inspection party that he was assisting the owner in unloading the black jaggery and alum. On the basis of this information, the inspecting party seized the autorickshaw along with a quantity of black jaggery and alum and a case in crime No.673 of 2003-04 dated 18-03-2004 of Prohibition & Excise Station, Nelakondapally was registered under Section 34 (e) & 39 of the Andhra Pradesh Excise Act, 1968 (Act No. 17 of 1968) (for short ‘the Act’). During the pendency of the proceedings, the petitioner herein filed a writ petition seeking release of the autorickshaw. W.P.No.6229 of 2004 was disposed of at the stage of admission directing release of the autorickshaw in favour of the petitioner therein on his furnishing a bank guarantee along with an undertaking not to alienate, sell or encumber the autorickshaw during the pendency of the proceedings. Eventually, the matter was heard and by the order dated 07-10-2005, the 2nd respondent, exercising the power under Section 46 (2) of the Act ordered confiscation of the vehicle along with the quantity of black jaggery and alum. The 2nd respondent considered the entire material on record including the explanation submitted by the petitioner. It was contended on behalf of the petitioner before the 2nd respondent that he is the owner of the vehicle and that the sale, purchase and transportation of black jaggery and alum is not prohibited nor regulated in law. It was further contended that no license or permit is required for transportation of black jaggery or alum and therefore the seizure of autorickshaw and the proposal for its confiscation is illegal and without jurisdiction. Rejecting this explanation, the 2nd respondent recorded in the order dated 07-10-2005 directing confiscation that the Chemical Examiner, Regional Prohibition & Excise Laboratory, Warangal had issued a report certifying that the black jaggery contains sugars and other extraneous matter which renders the commodity unfit for human consumption and fit only for fermentation and preparation of alcohol. On the basis of this nexus between the quantity of the seized product and its potential and proximal use for the manufacture of illicit distilled liquor, the 2nd respondent recorded that the transportation of the black jaggery and alum was within the regulatory domain of the Act. Section 34 (e) of the Act enjoins that whoever in contravention of the provisions of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act: uses, keeps or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy, on conviction be punished as stipulated therein. “Manufacture” is defined in Section 2 (22) of the Act as including every process, whether natural or artificial by which any fermented, spirituous or intoxicating liquor or intoxicating drug is produced, prepared, or blended, and also re-distillation and every process for the rectification of liquor. Section 13 (1) (f) of the Act enjoins that no person shall use, keep or have in his possession, any materials, still, utensils, implements, apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy; except under the authority and subject to the terms and conditions of a license granted by such officer, not below the rank of a Prohibition and Excise Superintendent, as may be prescribed. Section 46 of the Act enumerates the power of confiscation and sets out the procedure for ordering confiscation. Section 45 of the Act postulates the various things or commodities liable for confiscation. These include as enumerated in sub-section (3) of Section 45 of the Act, any vehicle or other conveyance used for carrying the things and commodities liable for confiscation as set out in sub-section (1) and (2) of Section 45 of the Act. Section 34 of the Act sets out the offences and penalties for illegal import etc., of the commodities regulated by the provisions of the Act and Section 42 of the Act enjoins a ‘presumption as to the commission of offences and prosecutions under Section 34, accordingly it shall be presumed that until the contrary is proved the accused person is presumed to have committed the offence punishable under that section; in respect of the things and items enumerated in sub-section (a) to (c ) of Section 42 of the Act and for the possession of which he is unable to account for satisfactorily. The presumptions enjoined in Section 42 of the Act is applicable only in respect of prosecutions under Section 34 of the Act. In the case on hand, the Chemical Examiner’s report (the validity of which is not contested in this writ petition) clearly states that the black jaggery when tested was found to contain sugars and extraneous matters which render it unfit for human consumption. When taken in conjunction that the large quantity of alum of 50 Kgs a legitimately compelling inference was warranted that both these commodities were for use in the manufacture of illicit distilled liquor. The proceedings for confiscation under the provisions of the Act are quasi judicial proceedings. The judgment of the Full Bench of this Court in Ganesh Traders Dhermapuri, Karimnagar v. District Collector1 is that the black jaggery is also a commodity which could be employed for the manufacture of an intoxicant provided a nexus between the commodity and the manufacture is established in the facts and circumstances of a given case. In the case on hand by application of the principle of ‘preponderance of probabilities’ the 2nd respondent has recorded a conclusion which does not appear to be perverse or based on no evidence. The commodity is black jaggery and alum and on the basis of Chemical Examiner’s report as to the black jaggery being unfit for human consumption, it was legitimately presumed to be for the manufacture of illicit distilled liquor. It is not in contention that the autorickshaw of the petitioner which is the vehicle employed for transportation of these commodities intended for the manufacture of illicit distilled liquor, is liable for confiscation if its involvement in the transgression of the provisions of the Act is made out. On the aforesaid analysis, this Court perceives no infirmity in the order of the 2nd respondent dated 07-10-2005 warranting interference under Article 226 of the Constitution of India. The petitioner preferred an appeal to the 1st respondent against the order dated 07-10-2005. The 1st respondent by the order dated 19-07-2006 rejected the appeal recording adequate and germane reasons for concurring with the conclusions of the 2nd respondent. The appellate order of the 1st respondent does not also suffer from any infirmity warranting interference. For the aforesaid reasons, there are no merits. The writ petition fails. The writ petition is accordingly dismissed. No costs. ____________________ GODA RAGHURAM, J Dated: 19-08-2008 pvks