THE COMMISSIONER. PROHIBITION AND EXCISE, A.P. AND ANR. versus SHARANA GOUDA

Citation: [2007] 7 S.C.R. 935 · Decided: 05-06-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

THE COMMISSIONER. PROHIBITION AND EXCISE, A.P. AND ANR. 
A 
v. 
SHARANA GOUDA 
JUNE 5, 2007 
[DR. ARIJIT PASAY AT AND D.K. JAIN, JJ.] 
B 
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Andhra Pradesh Excise Act, 1968 
Section 45, proviso-Vehicle of owner found being used by third person c 
for carrying contraband liquor-Confiscation of vehicle-Set aside by High 
Court on the ground that there was no mens rea involved-Held:-Ejfect of 
omission of the proviso has not been considered by High Court-Order of 
High Court set aside. 
A jeep of the respondent was taken by his friend on 20.11.1994, for his D 
~, 
use, later, he came to know that the said vehicle was checked by Excise officials 
and it was found carting contraband liquor. The vehicle was directed to be 
confiscated. The respondent filed writ petition before the High Court 
contending that he was owner of the vehicle and had no knowledge that it was 
being used for carrying contraband liquor. The High Court accepted the plea 
on the ground that there was no means rea involved. 
E 
It was contended for the appellants-Excise authorities that the High 
Court completely lost sight of Section 45 of the A.P. Excise Act, 1968 as, at 
the relevant point of time, the question of mens rea was not totally irrelevant. 
On the question: Whether mens rea was required to be established by F 
the prosecution, 
Allowing the appeal, the Court 
HELD: The effect of omission of the proviso to s. 45 of the A.P. Excise 
Act, 1968 does not appear to have been considered by the High Court. When G 
the proviso was part of the statute 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 
935 
H 
936 
SUPREME COURT REPORTS 
(2007) 7 ScC.R. 
A omission of the proviso. The High Court does not appear to have kept this 
y J 
B 
c 
aspect in view. Therefore, the judgement of the High Court is indefensible 
and is set aside. I Para 911938-A, Bl 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1137 of 
2002. 
From the Judgment and Order dated 11.07.2002 of the High Court of 
Judicature of Andhra Pradesh at Hyderabad in Writ Petition No. 27180 of 
1999. 
Debojit Borkakati (for D. Bharathi Reddy) for the Appellant. 
The Judgment of the Court was delivered by 
DR ARlJIT PASAYAT, J. I. Challenge in this appeal is to the judgment 
of Division Bench of the Andhra Pradesh High Court in writ Petition 27180 
of 1999. By the Impugned judgment, the High Court held that vehicle which 
D was seized for alleged commission of offence punishable under the Andhra 
.,.. 
;.. 
Pradesh Excise Act, 1968 (in short the 'Act') i.e. carrying contraband liquor 
(.,,,,,..,, 
was to be returned to the respondent. 
I 
2. Writ petition was filed by the respondent with the following averments: 
E 
On 21.11.1994 a close friend of the respondent by name Banappa took 
the said jeep for his use and subsequently the respondent came to know that 
the vehicle was cheked by the excise officials on 21.11.1994 and they found 
in the vehicle two cartons of IML each containing 46 nips. The 2nd respondent 
in the High Court (present appellant no. 2) registered the case under the 
F provisions of the Act. The respondent represented to the authorities that he 
is not involved in the alleged offence and he had no knowledge or consent 
for the alleged offence and that since the vehicle was used by a third party. 
the proceedings for confiscation are not warranted. 
3. The 2nd respondent in the High Court i.e. present appellant no. 2 
G rejected the request of the respondent for interim custody of the vehicle 
pending proceeding, by order dated 7.1.1995. Subsequently after obtaining 
orders from the High Court in writ petition No. 20291 of 1995, dated 17 .9.1995 
and after furnishing bank guarantee for a sum of Rs. 48,000/- the respondent / 
was given custody of the vehicle Subsequently, present appellant no.2 directed 
confiscation of the vehicle. 
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COMMNR, PROHIBITION AND EXCISE, A.P. v. SHARAN A GOUDA [PASAYA T, J.] 93 7 
4. Respondent filed writ petition before the High Court questioning A 
orders passed by the appellant no.2 and the appellate authority i.e: present 
appellant no. 1 it was submitted that respondent (writ petitioner) was the 
owner of the Vehicle and had no knowledge that the vehicle was being used 
for carrying contra

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