Shaji.A.J @ Pinky Shaji vs The Commissioner Of Excise
2023 Latest Caselaw 303 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                        WP(C) NO. 551 OF 2023
PETITIONER:

          SHAJI.A.J @ PINKY SHAJI,
          AGED 50 YEARS,
          ANIKKATHADATHIL HOUSE,
          CHELOOR KARA,
          KATTIKKULAM P O,
          WAYANAD., PIN - 670646

          BY ADVS.
          KALESH K.V.
          AMEER.K.M.


RESPONDENTS:

    1     THE COMMISSIONER OF EXCISE,
          EXCISE HEAD OFFICE,
          NANDAVANAM,
          THIRUVANANTHAPURAM, PIN - 695001

    2     THE ADDITIONAL COMMISSIONAL OF EXCISE(ENFORCEMENT),
          EXCISE HEAD OFFICE,
          NANDAVANAM,
          TRIVANDRUM, PIN - 695001

    3     DEPUTY EXCISE COMMISSIONER,
          MEENANGADI P.O.,
          WAYANAD, PIN - 673591

          BY ADV.
          SRI.JIMMY GEORGE, GP
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 551 OF 2023        -2-



                          JUDGMENT

Petitioner, registered owner of Mahindra Jeep

bearing registration No.KL 10 H 7965, was arrayed as

accused in Crime No.300 of 2019 registered with Police

Station, Thirunelli in respect of commission of an offence

under Section 58 of the Kerala Abkari Act (hereinafter

referred to as 'the Act', for short).

2. Allegation made against the petitioner was that

on 07.09.2019 at about 8.45 pm the passenger vehicle

was intercepted by the Sub Inspector of Police,

Thirunelly and on search found nine(9) packets of Indian

Made Foreign Liquor of 180 ml each which was meant

for sale only in the State of Karnataka. The vehicle

aforementioned and the contraband articles were seized

at the place of occurrence. On receipt of the final report,

the learned Judicial First Class Magistrate committed the

case to the Sessions Court under Section 207 Cr.PC and

thereafter, the case was committed to the Additional

Sessions Court for trial. It is contended that the

aforementioned Jeep was lateron confiscated by the

Deputy Excise Commissioner invoking the provisions of

Section 67B of the Act vide order dated 29.09.2020

Ext.P2. Notice was given under Section 67C of the Act

for affording an opportunity of hearing. Petitioner

appeared and the vehicle was released temporarily on

furnishing cash security of Rs.75,000/- (Rupees Seventy

five thousand only). An appeal was preferred against

order Ext.P2 and the same was dismissed vide Ext.P6

dated 02.01.2021. Learned counsel appearing on behalf

of the petitioner submitted that it will be a futile exercise

for the Excise authorities to continue with the

confiscation proceedings by upholding the order of

confiscation and imposition of the condition of

Rs.75,000/- as the learned Additional Sessions Court in

Sessions Case No.19 of 2020 on 27.02.2021 acquitted

the petitioner.

3. On the other hand, learned Government

Pleader Mr.Jimmy George submitted that order Ext.P6

was not in existence when the order Ext.P1 dated

27.02.2021 was passed and therefore the same is strictly

as per the provisions of Section 67B of the Act.

4. I have heard learned counsel for the parties

and appraised the paper book.

5. The provisions of Sections 66 and 67B of the

Act reads as under:

"66. Confiscation how ordered.-When the offender is convicted or when the person charged with an offence under this Act is acquitted, but the Magistrate, decides that anything is liable to confiscation, such confiscation may be ordered by the Magistrate.

Whenever confiscation is authorised by this Act, the Magistrate ordering it may give the owner of the thing liable to be confiscated an option to pay, in lieu of confiscation, such fine as the officer thinks fit.

When an offence under this Act has been committed, but the offender is not known or cannot be found, or when anything liable to confiscation under this Act and not in the possession of any person cannot be satisfactory accounted for, the case shall be inquired into and determined by the [Commissioner], or by any other officer authorised by the Government in that behalf, who may order such confiscation:

Provided that no such order shall be made until the expiration of one month from the date

of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence if any, which they produce in support of their claims:

[Provided further that if the thing in question is liable to speedy and natural decay, or if the [Commissioner] or any other officer authorised by the Government in that behalf is of opinion that the sale would be for the benefit of its owner, he may at any time direct it to be sold, and the provisions of this section shall, as nearly as may be practicable, apply to the net proceeds of such sale.] 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.) (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."

6. It is a matter of record that the learned

Additional Sessions Judge in Sessions Case No.19 of

2020 vide judgment dated 27.02.2021 acquitted the

petitioner in Crime No.300 of 2019. However, the order

of the appellate authority dismissing the appeal

preferred by the petitioner against the order of the

confiscation and imposition of a condition of Rs.75,000/-

(Rupees Seventy five thousand only) for release of the

vehicle came to be passed only on 02.01.2021, thus the

order of acquittal was not in existence at the relevant

point of time.

7. I am of the view that equity would be struck in case

the matter is relegated at the level of the appellate

authority - 2nd respondent to review the issue in view of

the subsequent events occurred after passing of the

order Ext.P6. Accordingly, order Ext.P6 is set aside.,

writ petition is disposed of remitting the matter to the

2nd respondent to decide the appeal afresh keeping in

view the subsequent event i.e., the judgment of acquittal

dated 27.02.2021. Let this exercise be undertaken after

affording an opportunity of hearing to the petitioner and

other officers in accordance with law, within a period of

forty-five(45) days from the date of receipt of a certified

copy of the judgment.

Sd/-

                                      AMIT RAWAL
vv                                      JUDGE





                APPENDIX OF WP(C) 551/2023

PETITIONER EXHIBITS

Exhibit P1        CERTIFIED COPY OF JUDGMENT PASSED BY

THE ADDL. SESSIONS COURT, MANANTHAVADI IN SC NO 19/2020 DATED 27-02-2021

Exhibit P1(a) COMPUTER GENERATED COPY OF JUDGMENT PASSED BY THE ADDL. SESSIONS COURT, MANANTHAVADI IN SC NO 19/2020, DATED 27-02-2021

Exhibit P2 COPY OF CONFISCATION ORDER PASSED BY THE 3RD RESPONDENT ALONG WITH IT'S ENGLISH TRANSLATION, ORDER NO. W5-

4841/2019 DATED 29-09-2020

Exhibit P3 COPY OF SHOW CAUSE NOTICE ISSUED BY R3 ALONG WITH ENGLISH TRANSLATION, ORDER NO. W5-4841/19 DATED 26-09-2019

Exhibit P4 COPY OF ORDER FOR INTERIM CUSTODY OF THE VEHICLE AND IT'S TRANSLATION ISSED BY R3 IN ORDER NO. W5-4841/19 DATED 08-11-2019

Exhibit P5 COPY OF TREASURY RECEIPT FOR RS 75000/- ISSUED BY THE DIST. TREASURY, WAYANAD DATED 08-11-2019

Exhibit P6 COPY OF ORDER OF DISMISSAL OF APPEAL PASSED BY THE 2ND RESPONDED AND ITS TRANSLATION, ORDER NO. 53/APL/2020 DATED 02-01-2021

Exhibit P7 COPY OF NOTICE TO SURRENDER VEHICLE AND ITS ENGLISH TRANSLATION BY THE 3RD RESPONDENT BY NOTICE NO. W5-4841/2021 DATED 20-01-2022