Sub Inspector vs K. Ravinder Reddy

The present writ appeal is arising out of an order dated 10.12.2003, passed in W.P.No.2695 of 1997 by the learned Single Judge allowing the writ

petition filed by the respondent herein.

The facts of the case reveal that a writ petition was preferred by the respondent herein, who was the owner of the vehicle bearing No.AHK 9949

(Mini Lorry of Nissan make). The Prohibition and Excise Inspector, Warangal while conducting inspection on 23.07.1995 had found the vehicle in

question transporting 990 litres of I.D. liquor in 11 rubber tubes. The Prohibition and Excise Officer apprehended the driver of the vehicle, namely

A.Dharma Rao and other persons and seized the vehicle. Proceedings were initiated under the Telangana Excise Act, 1968 (for short, “the Excise

Actâ€) for confiscation of the vehicle and a show cause notice, dated 05.08.1995 was issued to the person from whom the vehicle was seized under

Section 46-A of the Excise Act. It is an undisputed fact that though notice was not issued to the owner of the vehicle, i.e., the respondent herein, he

did file a detailed reply on 15.08.1995, which is on record and thereafter an order, dated 27.09.1995, was passed by the Deputy Commissioner of

Prohibition and Excise, Warangal Division/appellant No.2 herein in exercise of powers conferred under Section 46 read with Section 45 of the Excise

Act confiscating the Mini Lorry bearing No.AHK 9949 and also to destroy the contraband of I.D. liquor. Against the aforesaid order, dated

27.09.1995, the owner of the vehicle preferred an Appeal before the Commissioner of Prohibition and Excise/appellant No.3 herein, and the appellant

No.3 herein dismissed the said Appeal by order dated 16.11.1996. Aggrieved by the same, the respondent herein preferred the writ petition and the

learned Single Judge has allowed the writ petition keeping in view the Judgment delivered in the case of P.Gokul Anand v. Deputy Commissioner of

Prohibition and Excise, Hyderabad 2002 (2) ALD (Crl) 201 (AP) (FB) on the ground that no notice was given to the owner of the vehicle in question.

Against the order passed by the learned Single Judge, the present writ appeal has been filed by the respondents in the writ petition and the learned

Government Pleader for Prohibition and Excise has vehemently argued before this Court that Section 46-A of the Excise Act provides for notice to

the person from whom the property was seized and a show cause notice was issued to the driver of the vehicle in question and the respondent/writ

petitioner has also submitted a detailed reply to the show cause notice and therefore, the writ petition could not have been allowed on the ground that

the notice was not issued to the owner of the vehicle. It is also stated that against the Judgment delivered in the case of P.Gokul Anand (supra), an

SLP has been preferred and in the other writ petitions, which have been allowed on the basis of the aforesaid Judgment, the Hon’ble Supreme

Court has granted stay in those matters. However, while the present case was being argued before this Court on the ground of mens rea on the basis

of which a Full Bench of this Court has delivered the Judgment, a Judgment of the Hon’ble Supreme Court has been brought to the notice of this

Court by the learned Government Pleader, delivered in the case of Commissioner, Prohibition and Excise, A.P., v. Sharana Gouda (2007) 6 SCC 42

and the contention of the learned Government Pleader is that in similar circumstances, SLP preferred by the State Government has been allowed by

the Hon’ble Supreme Court.

This Court has carefully gone through the order passed by the learned Single Judge allowing the writ petition.

The relevant statutory provisions as contained in Sections 45 and 46-A of the Excise Act are reproduced as under:-

“45. Liability of certain things to confiscation:- Whenever an offence has been committed, which is punishable under this Act, the 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, transported, or 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.

46-A. Issue of show cause notice:- No order of confiscation of any property shall be made under Section 46 unless the person from whom the said

property is seized,-

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property; and

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice.â€​

The aforesaid statutory provisions of law make it very clear that a notice has to be issued to the person from whom the said property is seized

before passing an order of confiscation. In the present case, notice was certainly issued to the person from whom the vehicle was seized and the

respondent/writ petitioner, who is the owner of the vehicle, also submitted a detailed and exhaustive reply on 15.08.1995 to the show cause notice

issued by the Department in confiscation proceedings and therefore, it is nobody’s case that the owner of the vehicle or the driver of the vehicle

was not heard by the Deputy Commissioner/ appellant No.2 while passing an order of confiscation on 27.09.1995.

In the present case, the incident took place on 23.07.1995 at about 11.30 a.m. The A.P.Excise Act, 1968 was amended vide A.P.Act No.4 of 1994,

with effect from 26.11.1993. Originally, there was proviso to sub-section (3) of Section 45 of the Excise Act, which was omitted by the amendment.

When the proviso was part of the statute, it was provided that “if anything specified in clause (3) of section 45 of the Excise Act 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

communicatedâ€. At that stage, there was a prohibition of confiscation if the owner of the property in question had no reason to believe that such

offence was being or likely to be committed. This was the position in the case where the offender was not the owner of the property. The said

position was changed by omission of the said proviso. Thus, mens rea was not required to be established at all by the Prohibition and Excise officials.

Therefore, the order passed by the learned Single Judge deserves to be set aside.

Heavy reliance has been placed by the learned counsel for the respondent/writ petitioner in the case of P.Gokul Anand (supra). However, in the

case of Commissioner, Prohibition and Excise v. Sharana Gouda (supra), the Hon’ble Supreme Court has held as under (paragraphs 7 to 10):-

“7. 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.â€"Whenever an offence has been committed, which is punishable under this Act, following

things shall be liable to confiscation, namelyâ€

(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.â€​

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.â€​

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 if 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 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 appeal is allowed.â€​

In the light of the aforesaid Judgment and keeping in view the amendment to clause (3) of Section 45 of the Excise Act, which has been discussed

by the Hon’ble Supreme Court, which came into effect from 26.11.1993, mens rea is not required to be established, and therefore, the order

passed by the learned Single Judge deserves to be set aside.

The proceedings of confiscation makes it very clear that a proper notice was issued to the driver of the vehicle from whose possession the vehicle

was seized keeping in view Section 46-A of the Excise Act, the owner of the vehicle also did submit a detailed and exhaustive reply and therefore,

there was a compliance of Section 46-A of the Excise Act as well as the principles of natural justice and fair play. On this ground also, the order

passed by the learned Single Judge deserves to be set aside.

Resultantly, the writ appeal is allowed and the order passed by the learned Single Judge is set aside.

Miscellaneous applications, if any pending, shall stand dismissed. There shall be no order as to costs.