Ummer Farook S vs The Excise Commissioner
2021 Latest Caselaw 17834 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MRS. JUSTICE MARY JOSEPH
 WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA,
                             1943
                   WP(C) NO. 17013 OF 2021
PETITIONER:

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

         BY ADV P.P.BIJU

RESPONDENTS:

    1    THE EXCISE COMMISSIONER
         EXCISE COMMISSIONERATE, VIKAS BHAVAN.P.O,
         NANDAVANAM, THIRUVANANTHAPURAM- 695033.

    2    THE DEPUTY COMMISSIONER OF EXCISE,
         OFFICE OF THE DEPUTY EXCISE COMMISSIONER,
         KERALA STATE BEVERAGES CORPORATION HEAD
         QUARTERS,
         THIRUVANANTHAPURAM-695023.

    3    THE DEPUTY COMMISSIONER OF EXCISE,
         EXCISE DIVISION OFFICE, KACHERIPPADY,
         ERNAKULAM-682018.

    4    THE STATION HOUSE OFFICER
         KALADY POLICE STATION, KALADY,
         ERNAKULAM DISTRICT-683594.


         BY ADV. SMT.T.V.NEEMA, SR.PP

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WPC No.17013 of 2021 (B)
                                       2

                               JUDGMENT

Dated this, the 1st day of September, 2021

The writ petition was filed seeking 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 forth with,

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.

iii. Be further pleased to issue such other writ or order

or direction as deem just and proper in the

circumstances of the case."

2. The petitioner is the registered owner of a vehicle

bearing registration No.KL-49-K-1617, Bharat Benz lorry. The WPC No.17013 of 2021 (B)

vehicle is having all India permit to transport goods from another

state. The petitioner had purchased the vehicle with the financial

assistance from Indus Ind Bank, Ernakulam branch. After

purchase of the vehicle, the petitioner had engaged one Ullas as

a driver of the vehicle and he used to accompany the driver on all

occasions of movement of the vehicle. Due to some ailments of

petitioner's wife he could not accompany the driver on

29.07.2021, while 900 cases of IMFL is being transported to the

depots of Kerala State Beverages Corporation, Thripunithura and

Kollam pursuant to an order obtained by him for that. For that

purpose, a permit as Ext.P2 was issued by the 2 nd respondent to

the petitioner for the import of intoxicating liquor. The liquor was

transported from M/s.Blue Ocean Beverages Pvt Ltd, Goa to

Kerala.

3. While, the liquor is under transit on 03.08.2021, a

Crime was registered by the 4th respondent after getting the

vehicle alongwith the goods seized. Thereafter, the vehicle and

the goods were kept in an open yard under the 4th respondent.

The vehicle was produced by the police primarily, before Judicial

First Class Magistrate Court-IV, Perumbavoor, where the

petitioner had approached with a petition seeking for getting

custody of the same, but the Magistrate dismissed the application WPC No.17013 of 2021 (B)

and issued a direction to approach the Authority concerned for

getting interim custody of the vehicle and the goods. Thereafter,

an application was preferred by the petitioner as Ext.P7 but his

grievance is that a decision is not taken on the application till

date. According to him, the vehicle being kept idle, there is every

possibility for it to be rusted or damaged. Accordingly, the

petition on hand is filed seeking reliefs as aforestated.

4. The learned Public Prosecutor was directed to verify

whether Ext.P7 was filed by the petitioner before the 3 rd

respondent. The learned Public Prosecutor on instructions

submitted that Ext.P7 was preferred before the Authority; but

according to them, it being not in the format prescribed by Rule

42A of Kerala Abkari (Disposal of Confiscated Articles) Rules,

1996 it was not considered. According to the learned Public

Prosecutor, the application has to be filed in the form prescribed

by the above Rules for consideration by the Authority concerned.

It is also pointed out by the learned Public Prosecutor that a

prayer for release of the seized IMFL is also not made in the

application.

In the above circumstances, this Court is inclined to

dispose of this writ petition with a direction to the petitioner to

file appropriate application in the very format prescribed by the WPC No.17013 of 2021 (B)

Rules referred to supra and on such being filed, the 3 rd

respondent shall consider and pass appropriate orders in it not

later than two weeks from the date on which it was filed.

This Writ Petition stands disposed of, with directions

issued as above.

Sd/-

MARY JOSEPH, JUDGE

ww WPC No.17013 of 2021 (B)

APPENDIX OF WP(C) 17013/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE ISSUED BY UNION OF INDIA.

EXHIBIT P2             TRUE   COPY   OF   THE  PERMIT       DATED
                       27.07.2021    ISSUED   BY   THE        2ND
                       RESPONDENT.

EXHIBIT P3             TRUE COPY OF THE PERMIT VALID UP TO
                       12/8/21   DATED NIL  ISSUED  BY THE

DEPARTMENT OF EXCISE, GOVERNMENT OF GOA.

EXHIBIT P4 TRUE COPY OF THE TAX INVOICE TAKEN BY THE BLUE OCEAN BEVERAGES PVT.LTD, GOA.

EXHIBIT P5 TRUE COPY OF THE FIR IN CRIME NO.978/2021 DATED 03.08.2021 OF KALADY POLICE STATION.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 06.08.2021 IN CMP NO.290/2021 IN CRIME NO.978/2021 DATED 03.08.2021 OF KALADY POLICE STATION PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PERUMBAVOOR.

EXHIBIT P7 TRUE COPY OF THE APPLICATION DAZTED 13.08.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P8             TRUE   COPY   OF   THE    RECEIPT    DATED
                       13.08.2021    ISSUED     BY    THE     3RD
                       RESPONDENT.
 WPC No.17013 of 2021 (B)


EXHIBIT P9             TRUE COPY OF THE COMPLAINT DATED

11.08.2021 SUBMITTED BY THE PETITIONER BEFORE THE SHO ALATHUR POLICE STATION.

EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 14.11.2016 IN WP(C)NO.13847/2015 OF THIS HON'BLE COURT.