Kodi Satyanarayana vs Commissioner of Prohibition and Excise and Others

B. Subhashan Reddy, J.—This Writ Petition is filed assailing the order of confiscation passed by the second respondent-Deputy Commissioner of Excise, Kakinada.

The lorry bearing registration No.ADJ-6351 was proceeding from Yanam to Ramachandrapuram of East Godavari District. While the driver was found in possession of one quarter bottle of gin, the cleaner was found in possession of four bottles of liquor under his seat, which is in violation of the provisions of the Prohibition Act. As to whether these actions can be attributed to be with the consent of the owner is yet to be established in an enquiry. The enquiring authority is the second respondent and he is enjoined u/s 26-A (sic. 46-A) of the Andhra Pradesh Excise Act, 1968 (for short ''the Act'') to issue a notice. Sub-section (b) of Section 26-A (sic. 46-A) of the Act contemplates that opportunity should be afforded for making a representation in writing within such reasonable time as may be specified in the notice. There is no rule which guides as to what is the reasonable time. In the instant case, a notice of three days has been given and on the ground that within that three days'' time explanation was not filed, the vehicle has been confiscated. The lorry is a property and confiscation deprives the petitioner of his property. Such deprivation has to be only by authority of law and even though the Act authorises deprivation of the said property by way of confiscation, it can only be done by following procedure which conforms to the principles of natural justice as the statute is silent with regard to the period of notice to be issued and for affording opportunity for filing reply to the show-cause notice. But, that does not make the authority a dictator. In the cases which I dealt with I found that there is a variance in the time afforded for filing the explanation. Such time cannot vary according to the whims and fancies of a particular officer or different officers. Neither different yardsticks can be applied by the same officer nor can the time vary mainly because different officers deal with the cases in other areas of the State of Andhra Pradesh. In some cases, 15 days time was granted while in some cases it was seven days and in the instant case, it is three days. As such, a situation has arisen to adjudicate as to what is the reasonable time which has to be afforded to the vehicle owners seeking explanation as to why their vehicles should not be confiscated. Fair play should be the essence of the act in depriving the owners of their properties and in order to conform to the provisions under Article 300-A of the Constitution of India, it is necessary that there should be uniformity with regard to the period of notice and the same also should be reasonable.

In view of the above, I direct all the officers acting in exercise of the powers of confiscation of the motor vehicles for the violation of the provisions of the A.P. Prohibition Act and A.P. Excise Act, to afford opportunity for filing explanation by giving 15 days time from the date of service of notice.

In the circumstances, the impugned order is set aside and the 2nd respondent is directed to follow the above guidelines. The vehicle was already directed to be released in a writ petition filed before confiscation viz., W.P. 17038 of 1995. The petitioner had to furnish bank guarantee and also to file written undertaking. It is stated that the same had been complied with, but the bank guarantee and the written undertaking were returned. The petitioner shall resubmit the same to the 2nd respondent who shall, on perusal of the same and on being satisfied about the compliance of the orders referred to above, release the vehicle.

Further, the 2nd respondent shall now issue notice calling upon the petitioner as to why the vehicle should not be confiscated by giving 15 days time for filing explanation and if the petitioner wants personal hearing, the same should be given and then after following the procedure, the matter should be decided afresh.

In the result, the writ petition is allowed to the extent indicated above.