Palpandy vs State Of Kerala
2022 Latest Caselaw 1383 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MRS. JUSTICE MARY JOSEPH
         TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                        WP(CRL.) NO. 531 OF 2021
PETITIONER/S:

             PALPANDY
             AGED 49 YEARS
             S/O.CHINNAKKALA, HOUSE NO.219, SOUTH STREET,
             PARAMATHEVANPETTY, UTGHAMPALYAM TALUK, THENI DISTRICT,
             TAMILNADU.

             BY ADV BIJU .C. ABRAHAM



RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF
             EXCISE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695
             001.

     2       THE DEPUTY COMMISSIONER OF EXCISE,
             OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE, IDUKKI-
             685509.

     3       THE SUB INSPECTOR OF POLICE,
             KUMILY POLICE STATION, KUMILY, IDUKKI DISTRICT - 685509.


     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(CRL.) NO. 531 OF 2021
                                   2

                             JUDGMENT

This petition is filed under Article 226 of the Constitution of

India seeking to call for the records leading to Ext.P4 and issue a

writ of certiorari quashing the same and to issue a writ of

mandamus or any other appropriate writ or order directing the

second respondent to reconsider the case proceedings bearing I.D.-

3-7581/15 with regard to the vehicle of the petitioner and allow

the petitioner to contest the case effectively.

2. The facts of the case are as follows: The petitioner is

the owner of a Mini lorry bearing registration No. TN-60-Q-1217.

At about 8.30 P.M on 8.7.2015, the Sub Inspector of Police,

Kumily Police Station who is the third respondent has seized the

vehicle near Salim Food Court, Kumily in front of Kumily Bus

Stand. On a search of the vehicle 6.5 litres of IMFL was found

kept without any authority. Thereupon Crime No.534/2015 was

registered at Kumily Police Station for the offences punishable WP(CRL.) NO. 531 OF 2021

under Section 55 (a) and (i) of Kerala Abkari Act. The petitioner

then approached Judicial First Class Magistrate Court, Peerumade

and filed an application seeking for release of the vehicle as CMP

No. 2102/2015. The said Court was pleased to pass an order in

the application directing the second respondent, the Deputy

Commissioner of Excise, Idukki to release the vehicle to the

petitioner. The true copy of the proceedings of the second

respondent is produced alongwith the writ petition as Ext.P1. The

petitioner received a notice from the Excise Department in the

meantime directing him to be present at the office of the second

respondent to be heard in the confiscation proceedings of the

vehicle and to submit his explanation. True copy of the notice

received by the petitioner is appended to the writ petition as

Ext.P2. The petitioner submitted reply to the notice on

12.11.2015 and sought for time for filing objection. The same was

received at the office of the second respondent on 15.11.2015.

The second respondent was not available in the office and the WP(CRL.) NO. 531 OF 2021

office bearers informed him that the date of hearing will be

intimated later. True copy of the reply filed by the petitioner

before the second respondent is appended to the writ petition as

Ext.P3. The petitioner was present at the office of the second

respondent on 15.11.2015, but, there was no sitting. The

petitioner had filed his reply then and the authorities informed him

further that the posting date of the case would be informed.

Thereafter the petitioner and the sureties stand for the release of

the vehicle received a notice on 29.10.2021 from Judicial First

Class Magistrate Court, Peerumade. Thereupon, the petitioner

submitted an application under the Right to Information Act, 2005

before the second respondent. The reply was received by the

petitioner on 2.12.2021 alongwith a copy of the order passed on

22.7.2016 by the second respondent directing production of the

vehicle at the office. Copy of the same is produced as Ext.P4 and

the covering letter dated 2.12.2021, as Ext.P4(a). According to

the petitioner, Ext.P4 order is illegal since he was not heard prior WP(CRL.) NO. 531 OF 2021

to passing of the same. Accordingly, the Writ Petition (Crl.) on

hand is filed seeking to quash Ext.P4 proceedings of the second

respondent.

3. The learned Public Prosecutor though directed to

obtain a report in the matter, failed to do so.

4. It is found from Ext.P4 proceedings of the second

respondent that the reply filed by the petitioner dated 12.11.2015

was received therein. On going through Ext.P4 order, this Court

has noticed that though the reply dated 12.11.2015 seeking for

time for filing objection by the petitioner was received at the

office of the second respondent, the same was not responded to. It

was also revealed from Ext.P4 order that the petitioner was not

heard prior to passing of the same. It is noticed that the

confiscation of the vehicle was already effected without granting

the petitioner sufficient opportunity to file his objection and to

contest his case. In the above circumstances, Ext.P4 order is only WP(CRL.) NO. 531 OF 2021

to be set aside.

In the result, the Writ Petition (Crl.) stands allowed. Ext.P4

proceedings is set aside and the second respondent is directed to

issue notice to the petitioner granting him an opportunity to file

his objection in the matter and shall pass appropriate orders only

after hearing him personally. At any rate, notice shall be issued

to the petitioner within two weeks from the date of receipt of a

copy of this judgment and thereafter he shall be heard on his

contentions prior to taking any decision about the vehicle.

Sd/-

MARY JOSEPH JUDGE

al/-..

WP(CRL.) NO. 531 OF 2021

APPENDIX OF WP(CRL.) 531/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT BEARING ORDER NO.ID3-7581/15 DATED 18.09.2015.

Exhibit P2 TRUE COPY OF THE NOTICE DATED 14.10.2015 ISSUED TO THE PETITIONER.

Exhibit P3 TRUE COPY OF THE REPLY DATED 12.11.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit P4 TRUE COPY OF THE ORDER BEARING NO.I.D.3-

7581/15 DATED 22.07.2016 OF THE 2ND RESPONDENT.

Exhibit P4(A) TRUE COPY OF THE COVERING LETTER DATED 02.12.2021.