IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH THURSDAY, THE SEVENTH DAY OF AUGUST TWO THOUSAND AND FOURTEEN Present HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.22018 of 2014 Between:
Alli Venu, S/o. Nagaiah, Aged 26 years, Occ: Owner of the Auto, R/o. Thungathruthi Village & Mandal, Nalgonda District.
.. Petitioner AND The Government of Telangana, Rep. by its Principal Secretary, Department of Prohibition and Excise, Secretariat, Hyderabad & 2 others .. Respondents The Court made the following:
HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.22018 of 2014 ORDER:
The petitioner is the owner of TATA ACE HT BS-III bearing Registration No.AP 24TB 4151. The vehicle of the petitioner was engaged by person by name Maddela Narsaiah, a resident of Thungathurthi Village to transport the goods from one place to another place. On 01.11.2013, while the petitioner was transporting the goods by name black jaggery, alum and other items, the vehicle was intercepted by the excise authorities and seized the vehicle along with the goods. Crime No.654 of 2013-14 was registered on 01.11.2013 for the alleged offence under Section 34 (e) of the A.P. Excise Act, 1968 (for short, ‘the Act’). The petitioner was served show cause notice, dated 13.11.2013, calling for his explanation as to why his vehicle should not be confiscated. As the petitioner did not respond to the show cause notice, based on the material on the record, orders were passed on 29.01.2014 confiscating the vehicle. Aggrieved thereby, this writ petition is instituted.
2. Heard the learned counsel for the petitioner and the learned Government Pleader. With the consent of the learned counsel for the petitioner and the learned Government Pleader, the writ petition is disposed of at the admission stage.
3. Learned counsel for the petitioner contends that he was the owner of the vehicle engaged by Maddela Narsaiah for transportation of his goods and, therefore, he is no way responsible for the items which were transported. Being the owner of the vehicle, he cannot be held liable even if the owner of the goods was seeking to illegally transport prohibited items and, therefore, proceeding against the petitioner and seizing the vehicle of the petitioner was illegal. Learned counsel for the petitioner further contends that he was engaged by the owner of the goods and, therefore, even if the owner of the goods was transporting goods illegally, he is alone liable and the petitioner is not liable. It is further contended that prima facie, the goods which were transported in the vehicle were not prohibited and, therefore, by transporting the goods from one place to another place at the instance of the owner of the goods, the petitioner has not committed violation of the provisions under Section 34 (e) of the Act and, therefore, confiscation of his vehicle was illegal.
4. Learned Government Pleader contends that the excise authorities have apprehended that since huge quantity of black jaggery and alum were being transported in the vehicle, it is presumed that those goods were carried only for the purpose of producing illicit liquor and, therefore, in exercise of powers vested by the A.P. Excise Act, 1968, the goods and vehicle were seized and crime was registered and is in progress. He, therefore, contends that no illegality was committed in confiscating the vehicle of the petitioner. He further contended that right of appeal was provided to the petitioner under Section 46-C of the Act and without exhausting the appeal, the petitioner could not have instituted the writ petition.
5. The issue for consideration in this writ petition is whether the petitioner has violated the provisions of Section 34 (e) of the Act to attract confiscation of the vehicle of the petitioner.
6. Section 34 of the Act prescribes penalties for illegal import, export, etc. According to Section 34 (a) of the Act, transportation of any intoxicant is prohibited. According to Sub-section (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 amounts to committing crime and liable to be proceeded against.
7. In the instant case, the goods which were transported in the vehicle of the petitioner were black jaggery and alum. Black jaggery and alum are not prohibited items as per the A.P. Excise Act, 1968. Under a valid trade licence, a person can purchase the black jaggery and alum on wholesale basis and sell them in retail market. Therefore, mere possession of black jaggery and alum per se does not amount to violation of the provisions of the A.P. Excise Act, 1968. Since black jaggery and alum are not prohibited items, their transportation is also not barred by the provisions of the Act and to this extent, clarification was issued as early as in the year 2001 by the Commissioner of Excise, which
inter alia holds that as long as black jaggery and alum is transported by valid transit permit, they cannot be confiscated. It is not the case that the owner of the goods was indulging in manufacturing of illicit liquor and in the process, these goods and the vehicle were seized and confiscated.
8. The allegation levelled against the petitioner is that in the vehicle, the concerned authority was found transportation of 1750 kgs of black jaggery in 35 gunny bags each containing 50 kgs and 150 kgs of alum in 3 bags each containing 50 kgs, which was assumed to be supplying to I.D. liquor manufacturers. Insofar as transportation is concerned, as black jaggery and alum were not prohibited and no other prohibited items were recovered from the vehicle, it cannot be said that the vehicle was involved in transportation of prohibited items attracting the provisions of Section 34 (a) and (e) of the Act. If the owner of the goods was intending to sell these items to the persons, who manufacture illicit liquor, at the most he may become liable for prosecution. In this case, the liability of the owner is not in issue. Insofar as the petitioner is concerned, he was not involved in transportation of prohibited items.
9. This issue has come up for consideration before this Court in ULLI BHASKAR Vs. STATE OF A.P.[1]. This Court held that sale of black jaggery and alum either together or separately, with or without knowledge that the person to whom they are being sold, is likely to use them for the purpose of manufacturing illicit arrack, is not an offence under Section 34 (e) of the Act, because neither black jaggery nor alum, when sold jointly or separately, are not intoxicants as defined in the A.P. Excise Act, 1968. The purpose for which he is purchasing the goods from a vendor need not be disclosed by the purchaser to the vendor and even if the purchaser discloses that he has an intention to manufacture arrack from the goods purchased by him, the vendor cannot be said to have committed an offence under Section 34 (e) of the Act.
10. In this case, as noticed above, the petitioner is the owner of the vehicle, which involved in the transportation of black jaggery and alum and, therefore, the petitioner stands on a much better footing as compared to the petitioner in the above case. The confiscation proceedings against the petitioner are ex facie illegal and liable to be set aside.
11. Though the petitioner had a right of appeal and no explanation is coming forthwith as to why he has not exhausted the appeal provided under Section 46-C of the Act, however, the issue in this writ petition is one of competency and jurisdiction of the authority confiscating vehicle on the ground that the vehicle was involved in transportation of black jaggery and alum. As noticed herein above, as black jaggery and alum were not prohibited, mere transportation of the said goods does not attract the provisions of Section 34 of the A.P. Excise Act, 1968. Therefore, per se, it amounts to inherent lack of jurisdiction and, therefore, in the facts of this case, even though the petitioner has not availed the remedy of appeal, the writ petition cannot be thrown out on that ground.
12. Having regard to the above findings, the order impugned in this writ petition is not sustainable and it is, accordingly, set aside and the Writ Petition is, accordingly, allowed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
P.NAVEEN RAO, J Date: 7th August, 2014 KL HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.22018 of 2014 Date: 7th August, 2014
[1] 2004 (1) ALD (Crl.) 561 (AP)