Kerala High Court
State Of Kerala vs Varghese Kurisingal on 28 July, 2025
WA NO.79/2024 1
2025:KER:55370
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
WA NO.79 OF 2024
ARISING OUT OF THE JUDGMENT DATED 16.08.2023 IN WP(C)
NO.20067/2014 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS IN WP(C):
1 STATE OF KERALA
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
NEW ADDRESS REPRESENTED BY CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN 695001
2 THE COMMISSIONER OF EXCISE
THIRUVANANTHAPURAM, PIN - 695001
3 ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT)
THIRUVANANTHAPURAM, PIN - 695001
4 DEPUTY EXCISE COMMISSIONER
OFFICE OF DEPUTY EXCISE COMMISSIONER,
ALAPPUZHA, PIN - 688001
BY ADV.SRI.K.P.HARISH, SR.GOVERNMENT PLEADER
RESPONDENT/PETITIONER IN WP(C):
VARGHESE KURISINGAL
AGED 32 YEARS
S/O.JOSEPH, 21/3, KURISINAGAL HOUSE,
MUNDANVELI P.O., KOCHI, PIN - 682007
BY ADV. SRI.GEORGE CHERIAN (SR.)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
07.07.2025,THE COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
WA NO.79/2024 2
2025:KER:55370
JUDGMENT
Dated this the 28th day of July, 2025 Syam Kumar V.M., J.
This Writ Appeal is filed by the State challenging the judgment of the learned Single Judge dated 16.08.2023 in W.P. (C) No.20067 of 2014. Respondent was the petitioner in the said W.P.(C).
2. The Writ Petition was filed by the respondent seeking the following prayers :
"(i) to issue a writ of certiorari or any other writ or direction quashing Exts.P6, P8 and P9 holding that the petitioner's vehicle was used by the workshop owner without the petitioner's consent and knowledge and that the same is not liable to be confiscated ;
(ii) allow such other writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of this case in the interest of justice ; and
(iii) allow the costs of this proceedings to the petitioner."
3. The case of the respondent was that he is the owner of WA NO.79/2024 3 2025:KER:55370 a Fiat Punto Motor car bearing registration No.KL-43/B-8546, which was involved in Crime No.41 of 2013 of Kayamkulam Excise Range for illegal transportation of liquor. He contended that he had entrusted the car to a workshop on 13.05.2013 for repairs, and without his knowledge or consent, the said vehicle was used by the workshop owner for transporting contraband. When the car was taken into custody, the respondent had lodged a case before the Sub Inspector of Police, Kadavanthra Police Station, against the workshop owner alleging criminal breach of trust and cheating. While so Ext.P4 showcause notice was issued to the respondent by the 4th appellant confiscating the vehicle and thereafter Ext.P6 order dated 28.06.2013 was issued holding that the respondent had failed to take possible precaution against the misuse of the vehicle, and consequently ordering the car owned by the respondent to be confiscated to the Government with all its accessories. Respondent had challenged Ext.P6 by filing an appeal before the 3 rd appellant invoking Section 67E of the Abkari Act. The said appeal was dismissed vide Ext.P8 order dated 04.11.2013 confirming Ext.P6 order rendered by the 4th appellant. It was further stated in Ext.P8 WA NO.79/2024 4 2025:KER:55370 order that the vehicle can be released to the respondent if he pays the market value of the vehicle as decided by the Mechanical Engineer of the Excise Department. The respondent had filed a revision which was also dismissed vide Ext.P9 order dated 05.05.2014. Aggrieved by Exts.P6, P8 and P9 and terming them as unjust and illegal, the Writ Petition had been filed. The Single Bench had vide interim order dated 05.08.2014, directed release of the vehicle to the respondent upon furnishing value of the vehicle. The said order was complied with. Subsequently, the W.P.(C) was disposed of vide the impugned judgment, directing the appellants to refund the amount remitted by the respondent towards the value of the vehicle, primarily taking note of the fact that the respondent had been acquitted in Sessions Case bearing No.33 of 2016 vide judgment dated 31.03.2022. Aggrieved by the said judgment of the learned Single Judge, this appeal has been filed.
4. Heard Sri.K.P.Harish, learned Senior Government Pleader on behalf of the appellants and Sri.George Cherian, Senior Advocate, instructed by Smt.Latha Susan Cherian, Advocate for the respondent.
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5. The learned Senior Government Pleader contended that the learned Single Judge had erred in overlooking the settled legal position of law that acquittal of an accused in criminal proceedings is not a ground to quash the proceedings under Section 67B of the Abkari Act. Relying on the said provision of the Abkari Act, it is contended that the fate of the confiscation proceedings can be decided only by the competent authorities following the provisions of the Abkari Act and that the said proceedings do not depend upon the criminal proceedings initiated against the accused or upon his acquittal. Reliance is placed on the dictum laid down in Deepak v. Commissioner of Excise (2018 (2) KLT 148), wherein it has been held that the provisions of the Abkari Act empower the authorised officer to proceed with the confiscation proceedings, de hors the other provisions of the Act, irrespective of whether the accused is prosecuted or not for the offence involved and irrespective of the outcome of such prosecution. It is further submitted that in Deepak's case (supra), this Court had also held that the power of the authorised officer under Section 67B is an independent penal provision under the Act and an authorised officer can proceed with WA NO.79/2024 6 2025:KER:55370 the confiscation proceedings irrespective of the outcome of the prosecution of the case. Reliance is also placed on the dictum laid down in Shaiju v. Assistant Excise Commissioner and another (2008 (2) KHC 952) wherein it had been held that the irrespective of whether the accused is prosecuted or not for the offence involved and irrespective of its outcome because of the non obstante clause in Section 67B, a vehicle involved in an abkari offence is liable for confiscation. The learned Senior Government Pleader also relies on the dictum laid down in Excise Commissioner, Thiruvananthapuram and others v. Alex C.A. (2017 KHC 852) wherein this Court had held that the burden to prove the ingredient of Section 67C (2) to exclude confiscation in terms of Section 67B is upon the owner of the confiscated vehicle and that the owner has to prove that the vehicle used for carrying the contraband was without his knowledge or connivance of himself, his agent, if any, and the person in charge of the vehicle. The owner also has to establish that all reasonable and necessary precautions for preventing the use of the vehicle for illegal activities were adopted by him or his agent in charge of the vehicle. Relying on the said dictum, it is further WA NO.79/2024 7 2025:KER:55370 contended that none of the said ingredients or requirements have been met. The burden thus placed on the owner is very heavy in so far as he has to prove that the vehicle used for carrying the contraband was without his knowledge or connivance of himself, his agent, if any, and the person in charge of the vehicle. That apart, the further act that he had taken all reasonable and necessary precautions against such use is also a fact to be proved by the owner of the vehicle. None of the same had been met in the case at hand. The learned Senior Government Pleader also places reliance on the judgment of this Court in State of Kerala v. Manual Vinod (judgment dated 05.10.2016 in W.A.No.2652 of 2015) wherein a boat was given on lease and the lease agreement stipulated that the lessee shall not part with the possession of the vessel. Later, as part of business, the lessee had let out the boat to another concern which organised a DJ party on the vessel and following a police raid, contraband goods were seized. In the Writ Appeal filed by the State challenging the order of the learned Single Judge quashing the proceedings initiated under the Section 67 B and 67 E of the Abkari Act, this Court had after considering the WA NO.79/2024 8 2025:KER:55370 contention that the lease deed satisfied the requirements of Section 67(C)2 of the Act turned it down and had held as follows :
"Having regard to the statutory requirements of Section 67 C (2), we cannot accept this contention because the Section requires not only the owner but also his agent and the person in charge of the vessel to be not having knowledge or connivance and that each of them had taken necessary and reasonable precautions against such use. In other words, even if we accept that the respondent being the owner had no knowledge or connivance and that he had taken reasonable and necessary precautions, there is nothing on record to show that either the lessee, Green Bay Leisure Management Private Limited or My Kochi on line or the crew of the vessel were not having knowledge or connivance or that if they had taken reasonable and necessary precautions against the use of the boat leading to the recovery of the contraband articles."
The learned Senior Government Pleader thus relied on the above- mentioned precedents and prayed that the impugned judgment of the learned Single Judge rendered overlooking the law may be set aside.
6. Per contra, the learned Senior Counsel appearing for the respondent points to the contents of Exts.P6, P8 and P9 and terms them as mechanical, arbitrary and illegally rendered. On law, he submits that Section 67B of the Abkari Act does not empower the WA NO.79/2024 9 2025:KER:55370 confiscation of the property when the prosecution itself has resulted in acquittal. He terms the interpretation given to Section 67B of the Act as erroneous and argues that the judgment of the learned Single Judge does not require any interference and the same has been validly rendered. The learned senior counsel placed reliance on the judgment dated 31.03.2022 in Sessions Case No.33 of 2016 of the Sessions Court, Alappuzha, wherein the respondent, who was arrayed as accused No.7, had been acquitted, finding him not guilty of the offences charged against him. It has been held therein that the prosecution had failed to prove the case against the accused beyond reasonable doubt and that there was insufficient evidence to prove that the accused had committed the alleged offences. Consequently, accused Nos 2 to 7 were found not guilty and acquitted. The learned Senior Counsel buttresses his contention placing reliance on the dictum laid down in K.Rajesh v. Sub Inspector of Police, Palakkad and others (2015 (4) KHC 253) wherein it had been held by this Court that to confiscate a vehicle under Section 67C of the Act, it has to be established that the owner of the vehicle was a party to the offence or he had prior knowledge WA NO.79/2024 10 2025:KER:55370 about the illegal use of the vehicle. If it is not established that the owner of the vehicle had knowledge or that he connived with the persons who were illegally transporting the contraband, he cannot be penalised merely because his vehicle is involved in the offence. Pointing to Ext.P6 he contends that the said mandate had not been met. Reliance is also placed on the dictum laid down by this Court in Nazeer M.P. v. State of Kerala and others (2021 (6) KHC 752) that when it is shown that the owner had no control of activities that took place using the vehicle, it cannot be assumed that the vehicle was entrusted with an intention to commit the offence of carrying contraband articles and thus an order of confiscation of the vehicle cannot be made automatically for the reason that an offence has been committed making use of the vehicle. It is thus prayed that the judgment had been validly rendered and does not suffer from any illegality requiring interference by the Division Bench in this appeal.
7. We have heard both sides in detail and have considered the contentions put forth. The challenge in the W.P.(C) was against Exts. P6, P8 and P9 orders rendered in the original proceedings WA NO.79/2024 11 2025:KER:55370 under Section 55, the appeal under Section 67 E and the revision under Section 67 F respectively of the Abkari Act. They were challenged inter alia on the ground that there was no proper appreciation of the contentions put forth and that the same had been rendered mechanically without proper application of mind. It was also contended that the Revisional Authority had exceeded its jurisdiction and entered into various findings without any evidence on record. It is a specific ground taken in the W.P.(C) that the orders in appeal and the revision are mere reproductions of the earlier orders and that the contention that the respondent owner of the vehicle is entitled to protection under Section 67 C (2) of the Act had not been considered at all. It is noted that by the time the W.P.(C) came up for final consideration, the judgment rendered by the Sessions Court acquitting the respondent had been produced and taking note of the fact that the said acquittal bolstered the contentions of the respondent, the learned Single Judge had proceeded to dispose of the W.P.(C). We find merit in the contention that a perusal of Ext.P6 order would reveal that the same had been rendered in a very cryptic and mechanical fashion. Though it states WA NO.79/2024 12 2025:KER:55370 that the contentions of the owner of the vehicle and the case records were examined in detail, the order is bereft of any details or reasoning. The only reason stated to conclude against the respondent was that the owner of the vehicle had failed to take precautions against the misuse of the vehicle. The reasoning for arriving at such a conclusion as seen stated in Ext. P6 order is that, "No one would believe the version of giving the vehicle for repair indefinitely, having no time limit and without any documents." A specific ground had been taken in the Writ Petition that the said reason stated in Ext.P6 order is no reason at all and is per se illegal. Section 67C(2) inter alia stipulates that no order of confiscation could be passed if the owner of the conveyance proves to the satisfaction of the authorised officer that it was used as alleged, without the knowledge or connivance of the owner and that all reasonable and necessary precautions against such use have been taken. It is the specific case of the respondent that he had put forth a valid and tenable case, so as to invoke the protections available under Section 67C (2). Ext.P6 order does not reveal any worthwhile discussion on the explanations put forth, except for the cryptic WA NO.79/2024 13 2025:KER:55370 remark that no one would believe the version put forth. As regards Ext.P8 order rendered in the appeal preferred from Ext.P6 as well as Ext.P9 order rendered on the revision petition filed therefrom, it is seen that they are more or less reiterations of the same findings, mechanically and do not reveal a proper application of mind to the contentions put forth.
8. We now proceed to consider the legal contentions put forth based on Section 67B of the Abkari Act and the precedents relating to the same. The learned Single Judge had disposed of the W.P.(C) primarily on the reasoning that the Sessions Court had acquitted the respondent in the prosecution and therefore nothing survives in the matter regarding confiscation under Section 67B. This finding is challenged in this appeal, and hence it assumes relevance to consider whether the confiscation steps initiated under Section 67B of the Abkari Act would survive the acquittal of the accused in the prosecution. Section 67 B of the Abkari Act reads as follows:
"[67B. Confiscation by Abkari Officers in certain cases.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, WA NO.79/2024 14 2025:KER:55370 intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act, the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer.) (2) Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof. (3) When making an order of confiscation under sub-
section (2), the authorised officer may also order that such of the properties to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed."
The said provision, we note, has already been subjected to intensive judicial scrutiny. In Shaiju's case (supra), the petitioner therein had, basing on the judgment rendered by the Sessions Judge acquitting him, contended that confiscation of his motorcycle cycle alleged to have been used for transporting illicit arrack, is illegal. This Court turned down the said contention and held that irrespective of WA NO.79/2024 15 2025:KER:55370 whether the accused is prosecuted or not for the offence involved and irrespective of its outcome, because of the non-obstante clause contained in Section 67B, a vehicle involved in an abkari offence is liable to confiscation. In Deepak's case (supra), a Division Bench of this Court held that in view of the non-obstante clause in Section 67B of the Abkari Act, the power of confiscation under Section 67B is independent of the penal provisions contained in the said Act. In the said case, the petitioner was alleged of engaging in the sale of Indian made foreign liquor, and he was keeping liquor in his autorickshaw. Later on, after trial, the petitioner was acquitted and found not guilty of the offence punishable under Section 55(1) of the Act by the Sessions Court, Kottayam. In Alex C.A.'s case (supra), a Division Bench of this Court had held that the burden to prove the ingredient of Section 67C (2) to exclude confiscation in terms of Section 67B is upon the owner, and that the burden is very heavy, as he has to prove that the vehicle used for carrying the contraband was without his knowledge or connivance of himself, his agent, if any, and the person in charge of the vehicle. In Manual Vinod (supra), brief facts of which have been mentioned herein above, WA NO.79/2024 16 2025:KER:55370 again the scope of Section 67C(2) was considered by a Division Bench of this Court and it was held that the said Section requires not only the owner, but also his agent and person in charge of the vessel, to be not having knowledge or the connivance and also that each of them had taken necessary and reasonable precautions against such use. It follows from above that the non-obstante clause at the beginning of Section 67 B (1) of the Abkari Act well serves its purpose of providing an overriding effect and ensures that the provision it introduces, takes precedence over any contradictory provisions both within the Act and beyond.
9. However, it is relevant to note that though Section 67B starts with a non obstante clause, which indeed has the effect of granting the said provision priority over any other conflicting rules of provision, whether under the same law or in another law, nowhere does Section 67 B (1) or (2) expressly state that the outcome of the prosecution is totally irrelevant. Section 67B (2) reproduced above only states that the authorised officer may, whether or not prosecution is instituted for commission of the offence under the Abkari Act, order confiscation of the relevant property. This could WA NO.79/2024 17 2025:KER:55370 mean that the confiscation could be initiated, continued and effected irrespective of whether a prosecution is instituted for the commission of the offence. However, the provision does not expressly state that the acquittal, if any, in the prosecution has no bearing at all on the confiscation, especially when the legality of the confiscation proceedings themselves is under scrutiny. This Court, while scrutinising the legality of the confiscation proceedings, as done by the Single Bench in the W.P.(C), can also take note of the outcome of the prosecution instituted for the commission of the offence and weigh the same while deciding on the legality. We note that the reliance placed on the precedents to contend that 'the outcome of the prosecution is irrelevant' is not supported by any express statement to the said effect in Section 67 B (2). Thus, in the facts and circumstances of the case at hand, the learned Single Judge was right in taking note of the aspect of acquittal too while considering the legality of Exts.P6, P8 and P9 orders. As we have noted above, Ext.P6 order has been rendered in a rather cryptic and arbitrary fashion. Exts.P8 and P9 orders that followed by way of appeal and revision, respectively, also suffered from the same vice WA NO.79/2024 18 2025:KER:55370 and had been rendered mechanically and without proper application of mind. In such a scenario, the added reliance placed by the learned Single Judge on the factum of acquittal in the prosecution while disposing of the W.P.(C), inter alia, directing a refund of the amounts to the respondent, cannot be termed illegal or perverse.
In view of the above, this Writ Appeal is dismissed. No costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI JUDGE Sd/-
SYAM KUMAR V.M. JUDGE csl