Allowed

The Commissioner of Prohandexcise HYD.AND2 v. M.Chinna Khasim Saheb

Telangana HC18 Jan 2011WA/764/2003

Case brief

AI extract

What is this about?

In W.A. No. 764 of 2003, the High Court dismissed a writ petition filed by a writ petitioner challenging the confiscation of his lorry used in carrying liquor contraband. The Court relied on a Supreme Court judgment holding that with the omission of a proviso regarding owner knowledge in Section 45 of the AP Excise Act, mere involvement of the vehicle justifies confiscation regardless of the owner

What did the court decide?

The writ petition was dismissed and the writ appeal was allowed against the single judge's order.

The Commissioner of Prohandexcise HYD.AND2 Vs… — Writ and Judicial Review | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE C.V. RAMULU

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W.A. No. 764 of 2003

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JUDGMENT: (Per Hon’ble Sri Justice A. Gopal Reddy)

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This writ appeal is directed against the Order dated 22.8.2002 passed by the learned single Judge allowing W.P. No. 24104 of 1997 and directing return of bank guarantee or security furnished by the respondent-writ petitioner and that if the vehicle in question is sold in public auction, to return the sale proceeds to him.

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The respondent – writ petitioner claimed himself to be the owner of the offending vehicle – Lorry bearing No.ADJ 2205. The said vehicle was intercepted on 2.6.1995 by the excise officials and transportation of liquor contraband along with Urea was found. Therefore, a show-cause was issued on 14.6.1995 asking as to why the Lorry with contraband should not be confiscated to the State under Section 46 (2) of the A.P. Excise Act, 1968. On receipt of the said show-cause notice, the respondent – writ petitioner filed his objections stating that he was unaware of carrying of I.M.L. in his Lorry by the Driver and the Cleaner on 3.6.1995 and since he was not present, he had no knowledge of the offence committed by them and, therefore, proceedings may be dropped. However, 2^nd respondent, vide impugned order dated 3.8.1995, directed confiscation of the said Lorry along with I.M.L. In the meanwhile, in W.P. No. 12460 of 1995 filed by the writ petitioner, this Court directed release of the vehicle on furnishing bank guarantee for Rs.80,000/-. In spite of furnishing the said bank guarantee, the vehicle was not released and, therefore, writ petitioner filed W.P. No. 5333 of 1996 seeking release of the Lorry and to stay the proposed auction. This Court, by order dated 22.3.1996 stated the auction and directed release of the Lorry. Accordingly, the

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Lorry was released accepting the bank guarantee.

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While that being so, against the order of confiscation dated 3.8.1995, writ petitioner preferred appeal before 1^st respondent and the said appeal was dismissed. Aggrieved thereby, he filed present writ petition questioning the confiscation order dated 3.8.1995 as confirmed by the appellate authority vide order dated 24.8.1997. The learned single Judge, following the Full Bench judgment of this Court in W.P. No. 157 of 2000 dated 11.7.2002, allowed the writ petition as aforementioned. Hence, the present writ appeal.

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Heard the learned Government Pleader for the appellant. It is not disputed that proviso to Sub-Section (2) of Section 45 of the A.P. Excise Act, 1968 has been omitted with effect from 26.11.1993 by the Andhra Pradesh Act 4 of 1994. Considering the said omission, the Supreme Court in Commissioner, Prohibition and Excise, A.P. and Another v. Sharana Gouda^[1] held that “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 position if offender was not the owner of the property. This position has changed after omission of the proviso”. Thus holding, the Supreme Court set aside the judgment of the High Court directing release of the vehicle and to return the bank guarantee furnished.

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Thus, in view of the amendment, it is well settled that whether there is knowledge or no knowledge, mere involvement of the vehicle is sufficient for passing order of confiscation. In view of the

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same and since the entire offence has been committed after omission of the proviso to Section 45, the order dated 22.8.2002 passed by the learned Single Judge allowing W.P. 24104 of 1997 is contrary to the judgment of the Supreme Court referred (1) supra. The writ petition has to be dismissed as it is not open for the petitioner to contend he had no knowledge of transportation of contraband good.

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The writ petition is accordingly dismissed. Consequently writ appeal is allowed. There shall be no order as to costs.

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________________ A. GOPAL REDDY, J.

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__________________ C.V. RAMULU, J. JANUARY 18, 2011.

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MVB.

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[1] 2007 AIR SC 735

The Commissioner of Prohandexcise HYD.AND2 v. M.Chinna Khasim Saheb

Case brief

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The Commissioner of Prohandexcise HYD.AND2 v. M.Chinna Khasim Saheb

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