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2002 Supreme(AP) 1095
Andhra Pradesh High Court
Judges : A.R.LAKSHAMANAN, V.ESWARAIAH
G.Nasar Reddy - Appellant
Versus
Commissioner of Prohibition and excise, A.P., hyderabad - Respondent
W.P.Nos.27115/97 and 3914/01
Decided On : 09-17-02
Advocates Appeared :
Mr.T.Raghunath Reddy
Headnote:AP EXCISE ACT, Secs34,45, 46(2) - PROHIBITION ACT, 8(b) - Confiscation of vehicle - Excise Inspector seized lorry on allegation that driver was in possession of liquor bottles and registered Crime - Deputy Commissioner passing order confiscating seized property and lorry without giving opportunity to petitioner/owner and same confirmed by Commissioner - Contention that owner of lorry is not liable for confiscation as he has no knowledge or collusion with driver - In the instant case owner has never had knowledge of transportation of liquor bottles by driver and cleaner and he was not made party in criminal proceedings - Conclusions of Excise authorities are wrong without any material
When owner of vehicle has no knowledge about contraband nature of goods transported in lorry by passenger, owner cannot be held liable as mens rea is absent - In the present case owner has no knowledge and not made a party to criminal proceedings and driver and cleaner categorically admitted that they purchased liquor bottles - Owner cannot be made liable - Impugned order of Excise authorities, quashed - Bank guarantee and fixed deposit furnished by owner are directed to be returned - Writ petition allowed
( 1 ) WRIT Petition No. 27115 of 1997 was filed by the owner of the vehicle for a Mandamus declaring the proceedings passed by the first respondent, the Commissioner of prohibition and Excise, Andhra Pradesh, hyderabad in Cr. No. 1964/97/dpe/b-2, dated 27-8-1997 in confirming the orders of the Deputy Commissioner of Prohibition and Excise passed in Proceedings rc. No. 1008/95/a-3 dated 15-3-1997 in confiscating the petitioner s lorry bearing no. AP 21 T 1134 as illegal, arbitrary and violative of principles of natural justice.
( 2 ) ACCORDING to the petitioner, the lorry owned by him was seized on 4-6-1995 by the prohibition and Excise Inspector, Excise station, Nellore on the allegation that the driver of the lorry was in possession of 18 liquor bottles when it was checked while coming from Nayudupeta to Markapur and consequently a crime was registered in cr. No. 153/94-95 on the file of the third respondent and the driver and cleaner were arrested and later they were released on bail. Consequent upon the seizure of the vehicle, the third respondent has produced the said vehicle before the second respondent. The request of the petitioner made to the second respondent for interim custody of the vehicle was rejected by the second respondent and subsequently Writ Petition no. 12099 of 1995 was filed seeking a direction for release of the vehicle. The said writ petition was disposed of on 20-6-1995 with a direction to the respondents to release the lorry bearing No. AP 21 T 1134 to the petitioner on his furnishing bank guarantee for the value of the vehicle as determined by the concerned Motor Vehicle Inspector and also on giving an undertaking not to alienate or dispose of the vehicle and to produce the same as and when required for enquiry.
( 3 ) IT is contended by the learned counsel for the petitioner that the vehicle was released by the Motor Vehicle Inspector, who determined the value of the vehicle at rs. 1,25,000/-, and accordingly, the petitioner has furnished bank guarantee in favour of the second respondent. On furnishing the said bank guarantee, the vehicle was released in favour of the petitioner. In the meanwhile, a show-cause notice was issued by the second respondent on 14-6-1995 to the petitioner calling for objections during the course of enquiry and the said notice was served on the petitioner in the last week of July, 1995 directing him to show cause within seven days as to why the above seized stock should not be confiscated to the Government under Section 46 (2) of the A. P. Excise Act (for short "the Act" ). The petitioner could not file his explanation to the show-cause notice before the second respondent as he was suffering from jaundice.
( 4 ) ACCORDING to the learned counsel, when the search was made in the lorry as per the panchanama report prepared by the third respondent, the driver and cleaner were questioned about the alleged transportation of liquor bottles. The driver pullaiah, since dead, and the cleaner have stated that they have purchased the bottles at Red Hills, Tamil Nadu and were carrying them to their village Markapur for selling on higher rate. Under such circumstances, a cyclostyled confiscation order was passed by the second respondent on 3-8-1995 by filling up the blanks and it was served on the petitioner in the last week of September, 1995. On remand also, again the second respondent passed an order of confiscation now impugned in proceedings Rc. No. 1008/ 1995/a-3 dated 15-3-1997 confiscating the seized property and the lorry without giving any opportunity to the petitioner as directed by the first respondent.
( 5 ) THE learned counsel for the petitioner submitted that the second respondent can confiscate anything which is liable for confiscation under Section 45 of the Act, which was seized and produced before him. Under Section 45 of the Act, there should be a decision that offence was committed and then only the second respondent will get jurisdiction under
