JUDGMENT
D.G. Deshpande, J.
1. Heard learned A.P.P. Smt. Pawar for the State/Petitioner and Mr. D.B. Savant for the respondent.
2. A motor truck bearing No. Plate No. UP-15-F/3821 was intercepted by the Inspector of State Excise at Check Post insuli Tal. Sawantwadi. Dist. Sindhudurg situated at the border of Maharashtra and Goa and it was found that the truck was carrying foreign liquor from U.P. to Goa. When the Excise Inspector inquired about T.T.P. i.e. through transport permit or pass from the driver, it was found that the driver did not have that permit. Therefore, the Inspector seized the vehicle along with the contraband goods and prepared a panchanama and filed a case against respondent under Section 66(1-b), 65(a), 108, 80, 81, 83 of the Bombay Prohibition Act.
3. The respondent applied before the Magistrate for releasing the goods. His application was rejected. He, therefore, filed a criminal revision application bearing No. 32 of 1997 before the Sessions Judge, Sindhudurg. The Sessions Judge, Sindhudurg allowed that revision application and ordered Excised Authority to hand over seized liquor to the respondent. Against the said the petitioner has filed the present writ petition.
4. It was contended by the APP for the State that the Maharashtra Through Transport Rules, 1997 came into force on 15.2.1997. Under these rules any person transporting any intoxicant including liquor through Maharashtra from one State to another was required to obtain T.T.P. i.e. through transport permit and since the applicant/respondent did not have such permit, the vehicle was rightly intercepted and goods were properly seized. She also contended that breach of these Rules was punishable under Section 108 of the Bombay Prohibition Act which prescribed punishment for imprisonment up to one year and fine which may extend to Rs. 100/-. She also contended that in case of conviction the State was entitled for confiscation of the goods and since this aspect was not considered by the Sessions Judge, the impugned order was liable to be set aside.
5. On the other hand, it was contended by the counsel for the respondent that earlier Maharashtra Through Transport Rules, 1962 were in force and under those Rules there was no such prohibition of transporting goods through Maharashtra from one State to another State or to obtain any T.T.P. for that purpose on payment of Rs. 100/-. He pointed out that these Rules were replaced by Maharashtra Through Transport Rules, 1997 and the only intention was that the Government of Maharashtra should get some revenue for transporting the goods from one State to another through State of Maharashtra. He, therefore, contended that not obtaining T.T.P. at the point of entry in the State of Maharashtra was merely a technicality for which the goods were not liable to be seized. He also contended that It was nowhere the case of the Excise Department that any attempt was made by the respondent to sell the liquor any where in the State of Maharashtra, and this fact was corroborated by the report of Excise Inspector which reveals that there were no broken seals to the containers kept in the vehicle. He also contended that since there is not going to be any sale of the liquor in Maharashtra, the Government of Maharashtra was not entitled to recover any excise duty. Further according to him, if at all there was any lapses on the part of the respondent in not obtaining T.T.P., it was open to the State Government to recover fee of Rs. 100/- along with interest as per the amended Rules along with Section 114 of Bombay Prohibition Act. He, therefore, contended that the order of the Sessions Judge was legal, proper and not liable to be interfered with.
6. From the admitted facts it is clear that the only allegation against the respondent is that the respondent did not obtain T.T.P. for transporting the liquor from U.P. to Goa through State of Maharashtra. It is also not the case of the Excise Department that after the entry of vehicle in Maharashtra till its interception at Insuli Check Post, which is on the board of Maharashtra and Goa, any attempt was made by the respondent to sell the liquor. It is also not the case of the Excise Department that the liquor found in the truck was less in quantity than one mentioned in the Import or Export Pass issued by U.P. Government and Goa Government respectively.
7. In view of these admitted facts it is clear that the respondent was prosecuted for non-complying the Maharashtra Through Transport Rules, 1997 i.e. for not having T.T.P. at the point of entry of vehicle in the State of Maharashtra on payment of Rs. 100/-, after making an application in that regard. As rightly observed by the Sessions Judge, the offence committed by the respondent is a technical offence and since as rightly argued by counsel for the respondent, that the goods were intercepted at the border of Maharashtra and Goa, they were found intact and were of the quantity mentioned in the document, and the Government of Maharashtra was not making any claim to recover excise duty from the respondent, the order of the Sessions Judge is not liable to be interfered with.
8. For all these reasons I do not find any infirmity in the order of the Sessions Judge In allowing the application for return of the goods. However the operative part of the order is required to be modified. Hence the following order:-
ORDER
The Petition is dismissed.
Rule is discharged.
Stay, if any, vacated.
The goods, i.e. seized liquor, is to be handed over to the respondent on respondent’s furnishing bond of Rs. 5,20,000/- to the satisfaction of the Trial Court.
Certified copy expedited.