Andhra HC (Pre-Telangana)
Shaik Gulam Rasool vs Government Of A.P. And Others on 21 August, 2001
Equivalent citations: 2001(5)ALD637, 2001(2)ALD(CRI)611, 2001(6)ALT10
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. This writ petition is filed questioning the validity of the proceedings of the Deputy Commissioner of Prohibition and Excise dated 27-11-1998 and the proceedings of the Commissioner of Prohibition and Excise confiscating the jeep in which illicitly distilled liquor in possession of the driver of the vehicle was being transported and the 30 litres of ID liquor. The petitioner is the owner of Jeep.
2. A criminal case was instituted under Section 34(a) and (b) of the A.P. Excise Act, 1968 as also under A.P. Prohibition Act, 1995.
3. Mr. Sairam Gowd, learned Counsel appearing on behalf of the petitioner would contend that by reason of the said provision the right of the owners of the vehicle to ply the same was adumbrated under Article 19(1)(g) of the Constitution had been violated. The learned Counsel would urge that such provisions having not been existing earlier, the impugned amendment is ultra vires. The impugned order, Mr. Goud would submit, suffers from the vice of total non-application of mind. He would urged that the owners of the vehicles cannot be held vicariously liable for the acts of omission and commission on the part of their servants and thus the impugned order must be held to be illegal.
4. The Deputy Commissioner of Prohibition and Excise, Mahbubnagar division while passing the order of confiscation in respect of the vehicle in question as also the illicitly distilled liquor loaded thereupon, in his order dated 27-11-1998 inter alia held:
In the reference 3rd cited, the accused/owner has submitted explanation stating that the driver or cleaner of the vehicle have no knowledge about transportation of I.D. liquor and they were no way concerned with the offence. The owner has no dispute with regard to recovery of I.D. liquor from the Jeep. Thus, the involvement of driver and cleaner is not ruled out. Hence, the explanation submitted by accused/owner is not convincing.
5. An appeal was taken from the said order but the appellate authority dismissed the same by an order dated.....stating:
I have gone through the records placed before me, including the order of Deputy Commissioner, Panchanama etc. The contraband 30 litres of I.D. was being carried in rubber tubes. It should have around the curiosity of the driver. The driver obviously had knowledge of the illegal transport or did not exercise due diligence. Illicit liquor is dangerous to public heath. In terms of Section 43 of the A.P. Excise Act an employer is responsible for the acts committed by his servant unless the employer establishes that all due diligence was exercised by him to prevent the commission of offence. This shows that the onus was on the petitioner to show that he had exercised all diligence over the driver of the vehicle but inspite of that he had committed the offence. I do not find any ground to intervene in the matter.
6. Before adverting to the questions involved in these cases, we may notice the following provisions of law which are relevant for the purpose of this case:
45. Liability of certain things to confiscation :--Whenever any offence has been committed, which is punishable under this Act, 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 contends, if any, of such receptacle, package or covering and any animal, vehicle, vessel, raft or other conveyance used for carrying the same.
46. Confiscation by Excise Officers in certain cases :--(1) Notwithstanding anything contained in this Act or any other law for the time being in force, where anything liable for confiscation under Section 45 is seized or detained under the provisions of this Act, the officer seizing and detaining such property shall, without any unreasonable delay, produce the said seized property before the Deputy Commissioner of Prohibition and Excise who has jurisdiction over the area.
(2) On production of the said seized property under sub-section (1) the Deputy Commissioner of Prohibition and Excise if satisfied that an offence under this Act, has been committed, may, whether or not a prosecution is instituted for the commission of such an offence, order confiscation of such property.
(3) While making an order or confiscation under sub-section (2), the Deputy Commissioner of Prohibition and Excise may also order that such of the properties to which the order of confiscation relates which in his opinion cannot be preserved or are not fit for human consumption be destroyed.
(4) Where the Deputy Commissioner of Prohibition and Excise after passing an order of confiscation under subsection (2) is of the opinion that it is expedient in the public interest so to do, he may order the confiscated property or any part thereof to be sold by public auction or dispose of departmentally.
(5) The Deputy Commissioner of Prohibition and Excise shall submit a full report of all particulars of confiscation to the Commissioner of Prohibition and Excise within twenty four hours of such confiscation.
(6) The Deputy Commissioner of Prohibition and Excise shall, for the purposes of this Act have the same powers as arc vested in a civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when making enquiries under this section in respect of the following matters, namely:
(a) receiving evidence on affidavits:
(b) summoning and enforcing the attendance of any person and examining him on oath; an d
(c) compelling the production of documents.
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 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.
46-C. Appeal :--Any person aggrieved by an order passed by the Deputy Commissioner of Prohibition and Excise under Section 46 may, within sixty days from the date of passing such order appeal to the Commissioner of Prohibition and Excise who may after giving reasonable opportunity to the appellant pass such order as he deems fit.
7. Article 19(1)(g) of the Constitution of India does not confer any fundamental right upon any person for carrying on business in liquor. Even if a licence is granted in terms of the provisions of the Act thereby only a privilege is conferred.
8. Regulatory and prohibitory measures taken in terms of provisions of a statute are to be applied strictly in relation to dealing in liquor. The penal provisions contained in the A.P. Excise Act, 1968 or the A.P. Prohibition Act, 1995 including the provision to confiscate a seized article including a vehicle must be held to be intra vires. Thus, any person who commits such an offence may be punished under Section 46(1) and the vehicle used for commission of such an offence can also be seized in terms of sub-section (3) of Section 45 thereof.
9. Section 46(2) merely provides for production of such seized property. We fail to understand as to how such a procedure can be said to be unconstitutional.
10. The provisions referred to hereinbefore postulate a detailed procedure before an order of confiscation can be passed. Such provisions, in the considered opinion of this Court by no stretch of imagination can be said to be arbitrary or violative of Article 19(1)(g) of the Constitution of India, fn R.S. Joshi v. Ajit Mills, , the Apex Court observed:
A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois (1876) 94 US 11 (quoted in Labor Board v. Jones and Laughiln, (1936) 301 US 1, 33-34 - m Corwin, Constitution of the USA, introduction, P xxxi) viz., "that Courts do not substitute their social and economic beliefs for the judgment of legislative bodies." Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognised by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution.
11. The Deputy Commissioner of Prohibition and Excise is bound to issue a show-cause notice before an order of confiscation is passed in terms of Section 46-A of the Act. By reason of the provisions of Section 46(6), the Deputy Commissioner of Prohibition and Excise has some powers as vested in a civil Court under the Code of Civil Procedure. Section 46-C provides for preferring an appeal against the order of confiscation.
12. The scheme of the aforementioned provisions clearly shows that before an order of confiscation is passed, the principles of natural justice are required to be complied with. The owner of the property is required to be given ample opportunity of hearing. It is trite that the Parliament or the State Legislature has requisite legislative competence in this behalf.
13. The contention of Mr. Sairam Gowd to the effect that the said provision is ultra vires having regard to the fact that no such provision existed earlier is to be rejected keeping in view the fact that the legislative competence in this behalf has not been questioned.
14. The first contention of Mr. Sat Ram Gowd that Sections 45(3) and 46(2) are ultra vires the Constitution of India is thus rejected.
15. Let us now consider the legality of the order passed in the instant case.
16. A bare perusal of the order impugned in this proceedings clearly go to show that the same suffers from total non-application of mind. Prior to passing of the impugned order the explanation of the petitioner had not been considered at all. The documentary evidence produced by the petitioner had also not been taken into consideration. Surmises and conjectures appear to be the basis of the said order. No material appears to have been placed before the confiscating authority and the appellate authority by the respondents.
17. As indicated hereinbefore the 2nd respondent herein has merely proceeded on the basis that as the vehicle of the petitioner was being driven by driver, the same ipso facto is liable to be confiscated.
18. A law providing for confiscation is an appropriatory legislation. The same has to be strictly construed. Before an order of confiscation is passed, the authority must satisfy itself that all the ingredients therefor are satisfied keeping in view the proposition of law in mind chat confiscation is deprivation of property. Existence of mens rea is also an essential ingredient and plays a vital role in such matters.
19. The 2nd respondent in the instant case has proceeded on the basis that by reason of the alleged act of omission or commission on the part of the driver, the jeep belonging to the petitioner is liable to be confiscated. Section 43 of the said Act reads thus:
43. Criminal liability of licensee for acts of servants :--Where any offence under Section 34, Section 35, Section 37 or Section 38 is committed by any person in the employ and acting on behalf of the holder of a licence or permit granted or issue under this Act, such holder shall also be punishable as if he had committed himself the said offence, unless he establishes that all due diligence was exercised by him to prevent the commission of such offence.
20. In any event, when an offence is said to have been committed, the owner of the vehicle can show by producing evidence that he had no knowledge therefor.
21. In Forest Range Officer v. Pritam Singh, 1990 (1) ALT 156, a Division Bench of this Court held:
In our opinion, Section 44(2-C) confers only a right of defence. When once it is proved that the vehicle was used in the commission of the offence under Section 44(2-C) the onus of proof shifts and it is for the owner to prove that it is used without his knowledge or the knowledge of his agent or the person in charge of the vehicle. If he is able to prove that he or his agent or the person in charge has no knowledge and that he has taken necessary and reasonable precautions against such use, the vehicle cannot be confiscated.
22. In Amery Pharmaceuticals v. State of Rajasthan, , the Apex Court has clearly held that interpretation of the statute must be in consonance with the principles underlying fundamental rights. Thus any provision which visits an accused with adverse consequences without affording him any remedy to disprove an item of evidence which stands against his innocence, is inconsistent with the philosophy enshrined in Article 21 and the Court should interpret in such a manner so as to dilute it to make it amenable to Article 21. The same principles should be applied even in relation to confiscation proceedings.
23. Section 34(a)(b) and Section 35 of the said Act read as under:
34. Penalties for illegal import etc. :--Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,--
(a) ..imports, exports, transports manufactures, collects or possesses or sells and intoxicant; or
(b) .. taps any excise tree (c) ....
(d)....
(e) 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; or
(f) ....
35. Penalty for rendering denatured spirit fit for human consumption :--Whoever renders or attempts to render fit for human consumption any spirit, which has been denatured or has in his possession any spirit in respect of which he knows or has reason to believe that any such attempt has been made, shall on conviction, be punished with imprisonment for a term which shall not be less than two years but which shall not exceed five years and with fine which may extend to five thousand rupees.
24. We may notice that none of the aforementioned provisions does raise any presumption as against the owner of the vehicle for the acts done by his servants.
25. Keeping in view the facts and circumstances of this case we are of the opinion that the impugned orders having been suffering from total non-application of mind cannot be sustained which are set aside. The 2nd respondent herein is hereby directed to consider the matter afresh and pass appropriate order after giving the petitioner an opportunity of being heard.
The writ petition to the extent indicated above is allowed. No costs.