M RAMESH Vs. COMMISSIONER OF PROHIBITION EXCISE

JUDGEMENT

(1.) The petitioner is allegedly the owner of an auto bearing No. A.P.24 U.4613. The same was seized on 1-3-2002 by the Station House Officer (Excise) near an I.D. still (Illicit Distillation Still) as it was allegedly carrying jaggery. A crime was registered under Section 34(e) of the A.P. Excise Act 1968 ('the Act' for brevity). The petitioner filed an application before the second respondent seeking interim custody under Section 46 of the Act. The petitioner's application was rejected by the second respondent on 28-3-2002. Aggrieved by the same he filed an appeal before the first respondent, who by a well considered order rejected the request for interim custody. The first respondent held that the auto was seized while it was transporting jaggery and alum to Vemavaram and Machinenipalem villages knowing fully well that the said material is used for illicit distillation. The first respondent also placed reliance on two judgments of this court in W.P.No. 6893 of 2000 dt. 24-4-2000 and W.P.No. 21371 of 1999 to come to the conclusion that the knowledge and consent of the alleged owner of the vehicle involved in the offence is of no consequence and that the question of interim custody has to be decided having regard to the fact as to whether the vehicle was involved in illegal transport of liquor or contraband. This writ petition is filed assailing the order passed by the Commissioner of Prohibition and Excise.

(2.) Sri P. Prabhakara Rao, the learned counsel for the petitioner submits that the order passed by the first respondent suffers from illegality and unreasonableness. He would submit that when the owner of the vehicle shows that he is not involved in the offence, the provisions of Section 46 are not attracted. He would further submit that when panchanama/mediators' report was recorded on 1-3-2002 the auto involved in the offence was being driven by one Chene Praveen to whom the petitioner had given the auto on hire and that the petitioner was not present at the time of seizure. He also refers to that portion of the mediators' report wherein it is recorded that the said Chene Praveen has taken the auto on daily run basis from the petitioner. On the basis of this he submits that the petitioner's involvement in the offence is ruled out and therefore confiscation of the auto would be illegal.

(3.) Before the first respondent it was contended by the petitioner that mere carrying of jaggery would not amount to committing an offence under the Act. This cannot be accepted having regard to the Full Bench judgment of this court in Ganesh Traders, Dhermapuri, Karimnagar v. District Collector1. Whether or not the jaggery seized was intended for the manufacture of I.D. Liquor is a question which has to be proved before the criminal court and on mere allegation that the jaggery was not intended for manufacture of I.D. Liquor it is not for this court to grant a declaration. Be that as it may, after perusing the provisions of Section 46 of the Act I am not able to agree with the contention of the learned counsel for the petitioner that the owner of the vehicle, who pleads and proves that the vehicle was used for committing the offence without his knowledge, is entitled for release of the vehicle or interim custody. Reliance was placed by the learned counsel on the judgment of a Division Bench in Shaik Gulam Rasool v. Government of A.P.2, to which I was a member, is of no assistance to the learned counsel. In the said case the petitioner therein challenged the final orders of confiscation ordered by the exicse officials. This court, while observing that the owner of the vehicle involved in the excise can show that he has no knowledge, remanded the matter to the authorities. In the case on hand, the petitioner admittedly moved for interim custody of the vehicle, which was refused placing reliance on two judgments of this court Therefore, I cannot agree with the learned counsel for the petitioner. Further, a Division Bench of this court in Deputy Commissioner (P&E) v, Shobalal3 observed that if interim custody of the vehicle was given pending further inquiry and the criminal case, there is likelihood of the vehicle used in the crime recycled and used again and again and therefore some check has to be created and that this court cannot justify its order of interim custody of the vehicle involved in the offence. It must be remembered that a person committing an excise offence is one thing and the vehicle involved in the commission of excise offence is altogether a different thing. The law mandates that whenever an offence is committed punishable under the Act like transporting intoxicants, the vehicles are liable for confiscation. Whether or not the vehicle used with or without knowledge of the real owner can only be proved in a criminal court and therefore the respondents were justified in refusing the interim custody. The writ petition, therefore, cannot be entertained at this stage.