WP/20672/2020 of Vantaku Ayyappa, Vs The State of Andhra Pradesh on 31 December 2020

ORDER:

Heard Sri D.Vijay Goutam, learned counsel for the petitioner, and learned Government Pleader for Prohibition and Excise appearing for the respondents.

2. In the present writ petition, challenge is to the order of confiscation passed by the primary authority - Deputy Commissioner of Prohibition and Excise – respondent No.3 herein, vide file No.PE-STAOCR/44/2020-JA(B1) DC P&E VSKP, dated 02.07.2020, as confirmed by the appellate authority -Commissioner of Prohibition and Excise - respondent No.2 herein (Commissioner of Special Enforcement Bureau), vide order in crime No.340/2020/SEB/C4, dated 22.09.2020.

3. The primary authority - respondent No.3, in connection with crime No.35 of 2020 of the Station House Officer, Chodavaram Prohibition and Excise Station, Visakhapatnam District, registered for the alleged offences punishable under Sections 34(a) and 37-A of the Andhra Pradesh Excise Act, 1968 (for short ‘the Act’), initiated confiscation proceedings and issued a show-cause notice, dated 15.05.2020, calling upon the petitioner to show cause as to why the subject vehicle should not be confiscated. In response to the said show cause notice, the petitioner filed a reply/explanation on 28.05.2020 denying his involvement in the said offence. The primary authority - respondent No.3, in exercise of powers conferred under Section 46 of the Act, vide impugned order of confiscation, dated 02.07.2020, ordered confiscation of the subject vehicle viz., Maruti Suziki Ertiga car bearing registration No.AP 39 AA 7354. Aggrieved by the said order of confiscation, the petitioner preferred a statutory appeal before the appellate authority – respondent No.2, who, in turn, vide impugned order, dated 22.09.2020, dismissed the said appeal, upholding the order of confiscation passed by the primary authority - respondent No.3. Hence, the present writ petition.

4. According to the learned counsel for the petitioner, the orders impugned in the present writ petition are highly illegal, arbitrary and opposed the very spirit and object of the Act and the Rules framed thereunder. In elaboration, it is further submitted by the learned counsel that though the petitioner submitted a detailed explanation in response to the show cause notice issued by the primary authority - respondent No.3, the said authority did not consider the contents of the said explanation. Learned counsel also submitted that the appellate authority – respondent No.2 also failed to take into consideration the grounds urged in the memoramdum of grounds of the appeal.

5. On the other hand, it is vehemently contended by the learned Government Pleader for Prohibition and Excise appearing for the respondents that there is absolutely no illegality nor there exists any infirmity in the impugned orders and in the absence thereof, the orders impugned are not amenable for any judicial review under Article 226 of the Constitution of India. It is further contended that after issuing the show-cause notice, only after considering the explanation submitted by the petitioner, the primary authority – respondent No.3 passed the impugned order of confiscation and as such, the impugned action cannot be faulted.

6. It is absolutely not in controversy that in response to the show cause notice, dated 15.05.2020, issued by the primary authority - respondent No.3, the petitioner submitted a detailed explanation on 28.05.2020 setting out various reasons in support of his stand. The primary authority – respondent No.3, except stating that the

petitioner submitted explanation to the show cause notice, did not make any endeavour to verify and consider the contents of the explanation offered by the petitioner. It is also required to be noted that in the grounds of the appeal also, the petitioner urged a number of grounds, but the appellate authority – respondent No.2 also did not record any reasons on the said grounds of appeal urged by the petitioner. In the considered opinion of this Court, the mode and manner, in which the primary and appellate authorities dealt with the issues, is neither sustainable nor tenable in the eye of law. In the opinion of this Court, the matter requires reconsideration by the primary authority – respondent No.3 after taking into consideration the explanation/reply submitted by the petitioner.

7. For the aforesaid reasons, the Writ Petition is allowed, setting aside the order of confiscation passed by respondent No.3, vide file No.PE-STAOCR/44/2020-JA(B1) DC P&E VSKP, dated 02.07.2020, and the order passed by respondent No.2, vide crime No.340/2020/SEB/C4, dated 22.09.2020. The matter is remanded to respondent No.3 for fresh consideration of the issues and for passing appropriate orders, strictly in accordance with law, after taking into consideration the explanation offered by the petitioner and after giving opportunity to the petitioner, as expeditiously as possible, preferably, within a period of two weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

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A.V.SESHA SAI, J

31[st] December, 2020

Note Issue C.C. by 04.01.2021. (B/o) GHN(B/o) GHN