Rameez Moidu vs The Excise Commissioner
2021 Latest Caselaw 22334 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                    &
                 THE HONOURABLE MRS. JUSTICE C.S. SUDHA
  TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                           WA NO. 1465 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 21.10.2021 IN WP(C) 22369/2021
                   OF HIGH COURT OF KERALA, ERNAKULAM
APPELLANT/PETITIONER:

               RAMEEZ MOIDU,
               AGED 58 YEARS, S/O. M.K.SIRAJ, ROYAL ROSE,
               KANDAMKULANGARA, ANDI ROAD, KOZHIKODE, PIN-673303
               (REPRESENTED HEREIN BY HIS POWER OF ATTORNEY HOLDER
               MR. SHABEER, S/O.KUTTYALI, RESIDING AT SHAAB,
               PUTHUKUDYPARAMBU, THIKKODI, KOZHIKODE, PIN-673529.
               BY ADVS.
               M.AJAY
               V.P.PRASAD

RESPONDENTS/RESPONDENTS:

    1          THE EXCISE COMMISSIONER
               KERALA, EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O.,
               NANDAVANAM, THIRUVANANTHAPURAM, PIN-695033.
    2          THE DEPUTY EXCISE COMMISSIONER,
               EXCISE DIVISION OFFICE, MEENANGADI P.O.,
               WAYANAD, PIN-673591.
    3          THE STATION HOUSE OFFICER,
               SULTHAN BATHERY POLICE STATION,POLICE STATION ROAD,
               SULTHAN BATHERY, WAYANAD, PIN-673592.


               SRI.T.K.VIPINDAS SR GP

        THIS    WRIT   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Writ Appeal No.1465 of 2021              2




                 P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                 -----------------------------------------------
                     Writ Appeal No.1465 of 2021
                 -----------------------------------------------
            Dated this the 9th day of November, 2021


                                 JUDGMENT

P.B.Suresh Kumar, J.

This writ appeal is directed against the judgment dated

21.10.2021 in W.P.(C) No.22369 of 2021. Appellant is the petitioner

in the writ petition. Parties and documents are referred to in this

judgment for convenience, as they appear in the writ petition.

2. The petitioner is the Director of a company

engaged in the business of common carrier. A vehicle belonging to

the company of which the petitioner is the Director was seized and

detained alleging commission of offences punishable under Sections

55(a) and 55(i) of the Kerala Abkari Act (the Act). The allegation is

that while the vehicle was within the jurisdiction of the Sulthan

Bathery Police Station, it was found carrying a cardboard box

containing eight one litre bottles of Indian Made Foreign Liquor,

marked for sale in the State of Karnataka. The officer who seized and

detained the vehicle later produced the same before the second

respondent, the competent authority under Section 67B of the Act

for initiating proceedings for confiscation of the vehicle for having

used the same for committing the offences alleged. As the

proceedings for confiscation is likely to take time for its culmination,

the petitioner applied to the second respondent for release of the

vehicle pending disposal of the confiscation proceedings. The

application submitted by the petitioner was allowed by the second

respondent as per Ext.P10 order, on condition that the petitioner

shall deposit a sum of Rs.14 lakhs towards the value of the vehicle,

as was assessed by the competent authority, in the Treasury

Savings Account in favour of the first respondent, the Commissioner

of Excise, as provided for under Rule 4(2)(a) of the Kerala Abkari

(Disposal of Confiscated Articles) Rules, 1996 (the Rules). The writ

petition was filed seeking a modification of Ext.P10 order so as to

enable the petitioner to claim release of the vehicle on furnishing

bank guarantee, instead of cash deposit in the Treasury Savings

Account. The petitioner placed reliance on the decision of this Court

in Karthikeyan v. Deputy Commissioner of Excise, Ernakulam,

2011 (1) KLT 334, in support of the relief claimed in the writ petition.

3. Ext.P10 order has been issued by the second

respondent in accordance with Rule 4(2)(a) of the Rules which

provides that a vehicle liable to be confiscated may be released

temporarily against deposit of an amount equal to the market value

of the vehicle in the Treasury Savings Account of the Commissioner

of Excise. In Karthikeyan, in an almost identical case, a Division

Bench of this Court has held that in exceptional circumstances, this

Court would be justified under Article 226 of the Constitution in

excusing a person from complying with the statutory provisions on

equivalent appropriate and stringent conditions, without impairing

the effect of the statutory provisions and without violating any of the

express interdictions created by statute. The learned Single Judge

took the view that the case on hand is not an exceptional case

where the proposition laid down by this Court in Karthikeyan could

be applied and consequently, dismissed the writ petition. The

petitioner is aggrieved by the said decision of the learned Single

Judge.

4. It is seen that it was highlighted before the learned

Single Judge that the company which owns the vehicle was engaged

in the business of common carrier for number of years and the case

on hand is the first case of this nature, to bring home the point that

the case is an exceptional one so as to claim the benefit of the

decision of the Division Bench in Karthikeyan. The learned Judge

found that the said circumstance by itself is not sufficient to bring

the case as an exceptional one to read down the statutory provision

as held in Karthikeyan.

5. The learned counsel for the petitioner argued that

insofar as the petitioner is prepared to furnish bank guarantee for

the amount mentioned in the impugned order if the vehicle is

released on that condition, it would neither impair the effect of the

statutory provision in any manner, nor violate the interdiction in

terms of the statutory provision.

6. Per contra, the learned Government Pleader

submitted that insofar as the Rule 4(2)(a) of the Rules categorically

provides for deposit of the amount mentioned therein in the

Treasury Savings Account in favour of the Commissioner of Excise,

this Court will not be justified in modifying Ext.P10 order as prayed

for by the petitioner. The learned Government Pleader also asserted

that the case on hand cannot be said to be an exceptional one to

extend the benefit of the decision of this Court in Karthikeyan.

7. We have examined the arguments advanced by

the learned counsel for the parties on either side.

8. As noted, this Court has held in Karthikeyan that

in exceptional circumstances, this Court would be justified under

Article 226 of the Constitution in excusing a person from complying

with the statutory provisions on equivalent appropriate and stringent

conditions, without impairing the effect of the statutory provisions

and without violating any of the express interdictions created by the

statute. The relevant paragraphs of the judgment in the said case

read thus:

"6. When the Confiscation Rules contain the clear statutory provisions as to the manner in which, and the conditions subject to which only, a vehicle could be provisionally released pending confiscation proceedings, it is not open to any statutory authority acting under the

Abkari Laws to issue any order for release, except in conformity with that statutory condition. Statutory provisions, including subordinate legislation, bind the repository of power under that statute and hence, there is no way for any abkari officer to act except in terms of the direction therein.

7.In so far as the exercise of jurisdiction under Article 226 of the Constitution is concerned, it needs to be noted that in exceptional cases, the court may issue orders to render justice, without in any manner impairing the effect of the statutory law governing the field. However, this would not be done in violation of any express interdiction created by statute law. Equally, even when such a power is being exercised, the writ court would loathe transgress the statutory limitations, unless of course, equivalent appropriate conditions are imposed. This is a very cautious exercise resorted to any exceptionally exceptional circumstances and cannot be asked for as a matter of right or course. Not only that, such a procedure would be adopted only for such strong reasons which are demonstrably overwhelming and requiring judicial indulgence exercising prerogative discretionary jurisdiction to meet the ends of justice, excusing a person, for the time being, from complying with the obligations under the statutory provision; that too, only on stringent conditions. Therefore, even if we find some element of power under Article 226 to grant any such discretionary order, it cannot be asked for, or granted, as a matter of

course in matters relating to the release of vehicles involved in alleged abkari offences."

9. Going by the provision contained in Section 67C(2)

of the Act, a vehicle is not liable to be confiscated under Section 67B

of the Act, if the use of the same for commission of the offence

punishable under the Act is without the knowledge and connivance

of its owner, and if the owner and the person in charge of the vehicle

had taken all reasonable and necessary precautions against such

use. Ext.P7 report would indicate that the use of the vehicle of the

company for commission of the alleged offences is without the

knowledge and connivance of the company. The relevant portion of

Ext.P7 report submitted by the third respondent reads thus:

                     "ഈ ക സ ല     പത   മന യ ൽ സ രമ യ ക         കന കന ഡ വറല
                     അഭ വത ൽ മ ത ക     കന കന ത ത          ഡ വറ സ ഭവസമയ വ ഹന
                     ഓ ച    ഡ വറ യ പത അയ ളല സ&ന ത ലര) ർത        മന യല കയ വ ഹന
                     ഉ മയല കയ അറ കവ സമതകമ ഇല ലത     ർണ     യ ൽ മ ത വ ലന നമത3യള
                     ഒര    ററ ല8 8 പ സ ; കപ ള   യ ഇന)ൻ ന ർമ ത വ ക@ശമ@) യ ലത ര
                     കരഖ ള ഇല ലത വ ലനയ യ   ത ലD ണ വനത യ വ)കമ യ ടളത ണ; ."

Of course, that by itself is not sufficient to contend that the vehicle is

not liable to be confiscated. In addition, it must also be established

that the owner of the vehicle and the person in charge of the same

had taken all necessary precautions to prevent the use of the

vehicle for commission of offences punishable under the Act. The

question aforesaid is one to be examined by the competent

authority in the proceedings for confiscation. Be that as it may. Rule

4(2)(a) of the Rules reads thus:

"4(2) (a) The cart, vessel or other conveyance liable to be confiscated under the Act may be released temporarily by the authorized officer to its owner on depositing an amount equivalent to the market value of the cart, vessel or other conveyance, fixed by the Mechanical Engineer of the Excise Department or any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State in the Treasury Savings Account in favour of the Commissioner of Excise".

As explicit from the extracted Rule, the same provides for temporary

release of a vehicle in respect of which proceedings for confiscation

under Section 67B of the Act is in contemplation, only on deposit of

the amount mentioned in the Rule in the Treasury Savings Account

in favour of the Commissioner of Excise. A reading of Rule 4(2)(a)

would show that the object of the said provision is to ensure that the

properties in respect of which proceedings for confiscation are in

contemplation are not damaged on account of non-user, without

compromising on the object of the statutory provision that such

properties are liable to be confiscated. As noted, the petitioner is

offering bank guarantee for the amount covered by the Rule for

release of the vehicle. The bank guarantee is as good as money.

True, if bank guarantee is accepted in the place of cash deposit, the

amount covered by the bank guarantee cannot be used by the State

during the pendency of the confiscation proceedings. We do not

think that the same is the object of the Rule which insists cash

deposit in a Treasury Savings Account, for the amount is one to be

returned to the party, if it is found that the property is not liable to

be confiscated, at a later stage. In other words, it cannot be said

that a direction for release of the vehicle on furnishing bank

guarantee for the amount covered by the Rule would impair the

effect of the Rule in any manner whatsoever or that such a direction

would violate the express interdiction created by the Rule. In the

aforesaid circumstances, having regard to the fact that the vehicle is

not one owned by an individual, but a company engaged in the

business of common carrier, and having regard to the fact that the

use of the same for commission of the offences is without the

knowledge and connivance of its owner, we are of the view that the

case on hand is one in which the ratio in Karthikeyan could be

applied.

In the said view of the matter, the impugned judgment is

set aside and the second respondent is directed to release the

vehicle referred to in the writ petition to the petitioner on furnishing

bank guarantee for the amount specified in Ext.P10 order. This shall

be done as expeditiously as possible.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

YKB