Kerala High Court

Ummer Farook S vs The Excise Commissioner on 6 October, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                  &
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                         WA NO. 1287 OF 2021
AGAINST THE JUDGMENT IN WP(C) 17013/2021 OF HIGH COURT OF KERALA,
                              ERNAKULAM
APPELLANT/PETITIONER:

          UMMER FAROOK S
          AGED 34 YEARS, S/O. SULAIMAN M, KALATHIL HOUSE,
          CHIRAKODE, ATHIPOTTA P.O, PALAKKAD DISTRICT.

          BY ADVS.
          P.K.VARGHESE
          P.P.BIJU


RESPONDENTS/RESPONDENTS:

    1     THE EXCISE COMMISSIONER
          EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O,
          NANDAVANAM, THIRUVANANTHAPURAM - 695 033.

    2     THE DEPUTY COMMISSIONER OF EXCISE,
          OFFICE OF THE DEPUTY EXCISE COMMISSIONER,
          KERALA STATE BEVERAGES CORPORATION HEAD QUARTERS,
          THIRUVANANTHAPURAM - 695 023.

    3     THE DEPUTY COMMISSIONER OF EXCISE,
          EXCISE DIVISION OFFICE, KACHERIPPADY,
          ERNAKULAM - 682 018.

    4     THE STATION HOUSE OFFICER,
          KALADY POLICE STATION, KALADY,
          ERNAKULAM DISTRICT - 71 531.

          SRI.V.TEKCHAND SR GP FOR RESPONDENTS


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1287 of 2021
                                    2




                             JUDGMENT

Dated this the 6th day of October, 2021

S.Manikumar, C.J.

Before the writ court, the petitioner has sought for the

following reliefs:

i. Issue a writ of mandamus or any other writ, order or direction, directing the 3rd respondent to consider Exhibit-P7 application and grant interim custody of the vehicle bearing registration No.KL-49-K-1617, Bharat Benz Lorry to the petitioner forthwith, taking to note Exhibit-P2 to P4 permits.

ii. Issue a writ of mandamus or any other writ, order or direction, directing the 3rd respondent to consider Exhibit-P7 application and grant permission to remove 900 cases of liquor from vehicle bearing registration No.KL-49-K-1617, Bharat Benz Lorry and allow the petitioner to transport the same to the depots of Kerala State Beverages Corporation Thripunithura and Kollam.

2. After considering the averments, material on record and

the submission of the learned Public Prosecutor that Exhibit P7

application dated 13.08.2021, stated to have been submitted

before the competent authority, was not in the prescribed format,

as per Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated W.A.No.1287 of 2021

Articles) Rules, 1996, writ court disposed of the writ petition,

directing the petitioner to file an appropriate application in the

format prescribed by the Kerala Abkari (Disposal of Confiscated

Articles) Rules, 1996, with a further direction that if any such

application is filed, the Deputy Commissioner Excise (respondent

No.3), has to consider and pass orders on the application within a

time frame of two weeks from the date on which the application

was filed.

3. Seeking redressal of the above said decision, instant writ

appeal is filed inter alia on the following grounds:

A. The specific ground put forwarded by the appellant that the liquor has been transported in the vehicle of the petitioner only based on Exhibit-P2 to P4 documents. Hence the seizure of the vehicle of the petitioner is illegal, arbitrary and against the provisions of Abkari Act. The offences for the illegal sale of liquor can be made out against the accused and not against the vehicle of the appellant. Because the vehicle is having Exhibit-P2 to P4 documents to transport liquor from Goa to the KSBC depots at Thripunithura and Kollam. The sale of liquor has been conducted by the accused persons without the knowledge of the appellant. But the learned single Judge did not consider that facts while passing the judgment. W.A.No.1287 of 2021

B. As per Exhibit-P5 FIR, the alleged offences are 406 r/w section 34 and sections 55(a) and 55(1) of Abkari Act. All these offences charged against the accused persons and the offences will not attracted against the vehicle. Because the vehicle is involving only to transport the liquor and for that purpose, the department concerned had already issued valid permits. Hence the goods transported in the vehicle is based on Exhibit-P2 to P4 permits issued by the 2 nd respondent and the Excise department, State of Goa. So, the seizure of the vehicle by the 4th respondent is illegal and it is not legally sustainable and therefore the appellant is entitled to get interim custody of the vehicle and the liquor. Moreover the question as to whether the vehicle was used for committing offences under Abkari Act is a matter which requires appreciation of evidence. The crime is registered and the appellant had produced all the documents with regard to the transportation of liquor to the respondents No.s 2 and 3, but they have not considered the same and not to take steps to release the vehicle and liquor. The liquor is belonging to the Kerala State Beverages Corporation and the same will be delivered to the Depots at Thripunithura and Kollam. But the learned single Judge did not consider that facts while passing the judgment.

C. The offences committed by the accused persons are without the knowledge of the appellant. The appellant engaged the 1st accused as driver in order to transport liquor from Goa to W.A.No.1287 of 2021

Kerala and the petitioner had provided valid permits from the authority concerned. Hence the illegal act of the accused persons will not be connected with the vehicle. Therefore, the vehicle may be excluded from the allegation of unauthorized sale of liquor and may be released to the petitioner as interim measure. The learned single Judge has not considered this aspect, but passed the judgment. Therefore the petitioner is highly aggrieved by the judgment of the learned single judge.

4. On this day, when the matter came up for hearing,

Mr.V.Tekchand, learned Senior Government Pleader fairly

submitted that the statement of the learned Public Prosecutor

before the writ court that Exhibit P7 preferred before the Deputy

Commissioner of Excise, Ernakulam, was not in the proper format,

as prescribed by Rule 4(2)(a) of the Kerala Abkari (Disposal of

Confiscated Articles) Rules, 1996, is not correct. He further

submitted that there is no prescribed format.

5. Learned Senior Government Pleader further submitted

that Section 67B of the Abkari Act, 1077, deals with Confiscation

by Abkari Officers in certain cases.

6. Learned Senior Government Pleader further submitted W.A.No.1287 of 2021

that Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated

Articles) Rules, 1996 enables temporary release of cart, vessel or

other conveyance liable to be confiscated under the Abkari Act,

1077.

7. He submitted that Exhibit P7 is an application submitted

to the Deputy Commissioner of Excise (respondent No.3), an

authorised officer, under the statutory provisions. He added

further that confiscation proceedings has already commenced.

Submission of the learned Senior Government Pleader is placed on

record.

8. Section 67B, which deals with confiscation by Abkari

Officers, is reproduced:

"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, 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).

W.A.No.1287 of 2021

(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."

9. Section 67C, which deals with issue of show cause notice

before confiscation, is reproduced:

"67C. Issue of show cause notice before confiscation under section 67B. - (1) No order confiscating any property shall be made under section 67B unless the person from whom the same is seized -

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property;

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and

(c) is given a reasonable opportunity of being heard in the matter.

(2) Without prejudice to the provisions of sub-section (1), no order confiscating any animal, cart, vessel or other conveyance shall be made under section 67B if the owner of the animal, cart, vessel or other conveyance proves to the satisfaction of the authorised officer that it was used in carrying W.A.No.1287 of 2021

the liquor or intoxicating drug or the material, still, utensil, implement or apparatus or the receptacle, package or covering without the knowledge or connivance of the owner himself his agent, if any, and the person in charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use. "

10. Section 67D, which deals with property not liable to

confiscation to be returned to owner, is reproduced:

"67D. Property not liable to confiscation to be returned to owner. - Where the authorised officer passes an order under Section 67B that any property seized and detained by him or produced before him under that section is not liable to confiscation under this Act, he shall, after the expiry of thirty days from the date of such order, release such property to the person from whom it was seized. Provided that where the Commissioner has called for under section 67F the record of an order of the authorised officer, such property shall be released only subject to the orders of the Commissioner under that section."

11. Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated

Articles) Rules, 1996, which deals with temporary release of the

carts, vessels and other conveyances by the authorised officer

pending confiscation, is reproduced:

"(2)(a) The cart, vessel or other conveyance liable to be confiscated under the Act may be released temporarily by the authorised 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 W.A.No.1287 of 2021

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."

12. Admittedly, Exhibit P7 is an application dated 13.08.2021

submitted before the Deputy Commissioner of Excise, Ernakulam,

3rd respondent.

13. Prayer sought for in the writ petition, as stated supra, is

to consider Exhibit P7 and grant custody of the vehicle bearing

registration No.KL-49/K-1617 and also grant permission to remove

900 cases of liquor from the abovesaid vehicle.

14. Inasmuch as the application has been filed in terms of

Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles)

Rules, 1996, it is for the Deputy Commissioner of Excise to

consider as to whether the said vehicle bearing registration No.KL-

49/K-1617, Bharat Benz Lorry, can be temporarily released to the