Kerala High Court
M/S P.K.Construction Company vs State Of Kerala on 3 October, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
1
2024:KER:74259
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA,
1946
WP(C) NO. 38193 OF 2022
PETITIONER:
MUHAMMED SHAN P.K,
AGED 30 YEARS
S/O.KABEER KHAN P.B, RESIDING AT
POTTAIKANDATHIL HOUSE, NEAR NGO QUARTERS,
MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 661.
BY ADVS.
NIREESH MATHEW
M.G.KARTHIKEYAN
NIJU MATHEW
BABU JOSE
GAJENDRA SINGH RAJPUROHIT
VIVEK VENUGOPAL
SEBIN SEBASTIAN
DEVAN N.R
MATHEW JACOB
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2
2024:KER:74259
2 THE COMMISSIONER OF EXCISE,
COMMISSIONERATE OF EXCISE, EXCISE HEAD
QUARTERS, NANDAVANAM, - THIRUVANANTHAPURAM,
PIN 695 033.
3 THE ADDITIONAL EXCISE COMMISSIONER,
(ENFORCEMENT),
EXCISE HEAD QUARTERS, NANDAVANAM,
THIRUVANANTHAPURAM, PIN-695 033.
4 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, CIVIL STATION, 1ST
BLOCK, VIDYANAGAR, KASARAGOD, PIN-671 123.
5 THE STATION HOUSE OFFICER,
MANJESWARAM POLICE STATION, NEAR MANJESHWAR,
HOSABETTU, KASARAGOD DISTRICT, PIN-671 323.
BY ADV.
SRI. SREEJITH V.S.-GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.10.2024, ALONG WITH WP(C).38159/2022, 13203/2024 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
3
2024:KER:74259
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA,
1946
WP(C) NO. 38159 OF 2022
PETITIONER:
M/S P.K.CONSTRUCTION COMPANY,
XV/145, POTTAIKANDATHIL, NEAR NGO QUARTERS,
MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 661
REPRESENTED BY ITS MANAGING PARTNER, SRI.
KABEER KHAN P.B, AGED 57 YEARS, S/O. P.S.BAVA
RAWTHER, RESIDING AT POTTAIKANDATHIL HOUSE,
NEAR NGO QUARTERS, MUVATTUPUZHA, ERNAKULAM
DISTRICT, PIN-686 661.
BY ADVS.
M.G.KARTHIKEYAN
MATHEW JACOB
NIJU MATHEW
BABU JOSE
GAJENDRA SINGH RAJPUROHIT
NIREESH MATHEW
VIVEK VENUGOPAL
SEBIN SEBASTIAN
DEVAN N.R
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
4
2024:KER:74259
2 THE COMMISSIONER OF EXCISE,
COMMISSIONERATE OF EXCISE, EXCISE HEAD
QUARTERS, NANDAVANAM, THIRUVANANTHAPURAM,
PIN - 695 033.
3 THE ADDITIONAL EXCISE COMMISSIONER,
(ENFORCEMENT), EXCISE HEAD QUARTERS,
NANDAVANAM, THIRUVANANTHAPURAM, PIN-695 033.
4 THE DEPUTY COMMISSIONER OF EXCISE,
EXCISE DIVISION OFFICE, CIVIL STATION, 1ST
BLOCK, VIDYANAGAR, KASARAGOD, PIN-671 123.
5 THE STATION HOUSE OFFICER,
MANJESWARA POLICE STATION, NEAR MANJESHWAR,
HOSABETTU, KASARAGOD DISTRICT, PIN-671 323.
BY ADV. SRREJITH V.S. -GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.10.2024, ALONG WITH WP(C).38193/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
5
2024:KER:74259
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA,
1946
WP(C) NO. 13203 OF 2024
PETITIONER:
CHIRAMMAL ABDUL SALAM,
AGED 56 YEARS
S/O ABDUL HAMEED CHALIL,"SANOOHAS"
KUNHIMANGALAM, EDAT.P.O KANNUR DISTRICT,
PIN - 670 327.
BY ADVS.
P.S.BINU
K.SEENA
RESPONDENTS:
1 DEPUTY EXCISE COMMISSIONER,
EXCISE DIVISION OFFICE, KANNUR, KANNUR
DISTRICT, PIN - 670 002.
2 EXCISE COMMISSIONER,
EXCISE COMMISSIONERATE, KAS BHAVAN.P.O,
NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695 033.
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
6
2024:KER:74259
BY ADV. S. GOPINATHAN -SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.10.2024, ALONG WITH WP(C).38193/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
7
2024:KER:74259
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA,
1946
WP(C) NO. 14287 OF 2024
PETITIONER:
RENY JOY,
AGED 42 YEARS
S/O. JOY, KANNAPARAMBIL HOUSE, MUNDAKOLLY,
MUKKUTHIKUNNU, CHEERAL P.O., WAYANAD,
PIN - 673 595.
BY ADVS.
MATHEW KURIAKOSE
T.G.SUNIL (PERUMBAVOOR)
J.KRISHNAKUMAR (ADOOR)
MONI GEORGE
SHAJI P.K.
ARUN.S.
PREETHU JAGATHY
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPT. OF EXCISE,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 001.
2 THE EXCISE COMMISSIONER,
EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O.,
NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695 033.
3 THE ADDITIONAL EXCISE COMMISSIONER
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
8
2024:KER:74259
(ENFORCEMENT),
EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O.,
NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695033.
4 THE DEPUTY EXCISE COMMISSIONER,
WAYANAD, OFFICE OF THE DEPUTY EXCISE
COMMISSIONER, MEENANGADI, WAYANAD,
PIN - 673 591.
BY ADV. SREEJITH V.S-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.10.2024, ALONG WITH WP(C).38193/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
9
2024:KER:74259
DINESH KUMAR SINGH, J.
--------------------------
W.P.(C) Nos. 38193 and 38159 of 2022 &
14287 and 13203 of 2024
-------------------------
Dated this the 3rd day of October, 2024
JUDGMENT
1. These four writ petitions have been filed against the orders
passed under Section 67(B) and (C) of the Abkari Act.
2. The facts of each petition are stated in brief as under;
I) W.P.(C) 13203 of 2024
a) The petitioner is the owner of the Mahindra Bolero Pick-up
vehicle bearing Registration No. KL-13-AH-8431. According to the
petitioner, the said vehicle is used for the collection of bananas
from Wayanad and Tamil Nadu and supply in Kannur and
Kasaragod districts in the State. Petitioner has been doing this
business for the last eighteen years. Petitioner would take orders
for supplying bananas through his driver-cum-delivery agents.
Other vehicles of the petitioner are also used for the same
purpose.
b) On 26.05.2021, at around 3.15 p.m., Mr. Dilip M. Excise
Inspector, Excise Range Office, Thaliparamba with other officials
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
seized the said vehicle of the petitioner from near NH
Mudikkanam Road, Pariyaram Amsam, Embet Desom for illegally
transporting 7.5 liters of Indian Made Foreign Liquor mandated
to be sold in Karnataka State only. The driver of the Vehicle, Mr.
Arunkumar U. was arrested and case, Crime No. 30/2021 at Excise
Range Office, Thaliparamba under Section 55(a) and 58 of the
Abkari Act was registered against the driver. The Deputy
Commissioner of Excise, Kannur, the authorised officer under
Section 67(b) of the Abkari Act (hereinafter referred to as the 'Act'
for short), the 1st respondent entrusted the vehicle to the Excise
Inspector, Excise Range Office, Thaliparamba.
(c) The petitioner submitted a request for the temporary
release of the vehicle. The 1st respondent vide the order dated
19.07.2021 (Exhibit P-1) released the vehicle temporarily to the
petitioner on depositing the market value of the vehicle i.e. Rs.
3,75,000/- as per the assessment made by the Excise Mechanical
Engineer, Thiruvananthapuram.
(d) A show cause notice as per Section 67C of the Act was
issued to the petitioner asking him to show cause as to why the
vehicle should not be confiscated to the Government. The
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
petitioner had submitted reply to the said show cause notice on
27.07.2021 stating that, he had no connection with the alleged
crime committed by the driver and he was totally unaware of the
legal act done by the driver. After considering the reply, the said
vehicle has been confiscated as per the order in Exhibit P-2 dated
29.08.2022 passed under Section 65 (B) of the Act.
(e) The petitioner filed Exhibit P-3 appeal against the order of
confiscation of the vehicle before the Additional Excise
Commissioner, Enforcement, Thiruvananthapuram. However,
the said appeal got rejected vide the order date 11.01.2023 in
Exhibit P-4. After the appellate authority passed the order in
Exhibit P-4, notice in Exhibit P-5 dated 07.02.2024 had been
issued to the petitioner by the 1st respondent to produce the
vehicle or submit application for permanent release of the vehicle
by forfeiting the security deposited for temporary release of the
vehicle. These orders in Exhibits P-2 and P-4 and notice in Exhibit
P-5 dated 07.02.2024 are under challenge before this Court in the
present writ petition.
a) Petitioner in the said writ petition is the owner of Maruti
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
Wagon R VXI BS IV Car bearing Registration No. KL-12-M-675. The
said vehicle was seized by the Police alleging that, on 21.05.2021,
400 ml Arrack was transported in the said vehicle by Mr. Mathews,
the father-in-law of the petitioner and Crime No. 214 of 2021 of
Kenichira Police Station in Wayanad district was registered
against the said Mr. Mathews alleging commission of offences
punishable under Section 8(1)(2) of the Act. Later on, Section
4(2)(d) r/w Section 4(iv) of the Kerala Epidemic Disease
Ordinance, 2020 was added and the Police had submitted final
report. Based on the said final report, the accused was tried by
the Assistant Sessions Court, Sulthan Bathery in S.C. No. 413 of
2021. However, the accused was acquitted vide the Judgment
and Order dated 28.10.2023 passed in S.C. No. 413 of 2021.
b) In the meantime, the vehicle of the petitioner was ordered
to be confiscated vide the order dated 06.12.2023 (Exhibit P-2)
passed by the Deputy Excise Commissioner, Wayanad, 4th
respondent. The appeal filed before the Additional Excise
Commissioner (Enforcement), 3rd respondent got rejected vide
the order dated 26.02.2024 (Exhibit P-3). The present writ
petition has been filed for quashing of Exhibits P-2 and P-3 orders
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
passed by the 4th and 3rd respondents respectively and a writ of
mandamus has been sought for direction to the 4th respondent to
release the Maruti Wagor R VXI BS IV Car bearing Registration No.
KL-12-M-675 to the petitioner. It is also relevant to take note of
the fact that the petitioner's vehicle was temporarily released to
the petitioner on security deposit of Rs. 4,30,000/- as per Rule
4(2)(a) of Kerala Abkari (Disposal of Confiscated Articles) Rules,
1996, which was the assessed market value of the said vehicle.
a) The petitioner is the owner of the Tanker Lorry bearing
registration No. KL-17-T-8755. The said vehicle was seized for the
offence of transporting illicit Indian Made Foreign Liquor and
Crime No. 254 of 2021 was registered at Manjeswaram Police
Station under Section 55 (a) of the Act against the driver of the
vehicle. The driver of the said vehicle was arrested for
committing the offence. 6.60 litter of Indian Made Foreign
Liquor was seized which was concealed behind the seat of the
driver, inside the cabin of the lorry. The liquor seized was meant
to be sold in Karnataka, but, it was transported to the State of
Kerala. The vehicle was transporting Tar from Mangalore
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
Refinery and Petro Chemicals Ltd., Mangalore to Malabar Tech,
Government Contractors, Manjeri. The said vehicle was produced
before the 4th respondent being the authorised officer under
Section 67B of the Act. Show cause notice under Section 67C of
the Abkari Act was issued to the petitioner asking the petitioner
to show cause as to why his vehicle should not be confiscated. A
reply was submitted by the petitioner and, thereafter, the 4th
respondent passed Exhibit P-4 order for impounding the vehicle
in favour of the Government.
b) Against the said order in Exhibit P-4, petitioner filed an
appeal under Section 67A of the Act before the 3rd respondent.
However, the 3rd respondent dismissed the appeal vide the
impugned order in Exhibit P-6 dated 22.10.2022. The said orders
in Exhibits P-4 and P-6 are under challenge before this Court in
the present writ petition.
a) The petitioner is one of the partners of M/s. PK
Construction Company, which is engaged in the business of
constructions and transportation of materials in the nature of
petroleum byproducts like light diesel oil, Tar, emersion and
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
packed tar. The said Company is said to be engaged in the service
of providing transportation facilities to various private and
Government owned companies like BPCL, IOC and HPC.
b) The petitioner is the owner of the Tanker Lorry bearing
Registration No. KL-46-K-0556 which was seized in Crime No. 255
of 2021 by Police of Manjeswaram Police Station. It is alleged that
the petitioner's vehicle was found transporting 23 cases of Indian
Made Foreign Liquor around 01.40 hours on 08.06.2021 at
Thalappady within the jurisdictional limits of Manjeswaram Police
Station. The liquor was found concealed behind the seat of the
driver, insider the cabin of the lorry. The driver was arrested for
having committed the aforesaid offences.
c) The vehicle was subsequently produced before the Deputy
Commissioner of Excise, Kasaragod being the authorised officer
as provided under Section 67B of the Act. The petitioner was
issued a show cause notice under Section 67C of the Act calling
upon him to show cause as to why the vehicle should not be
confiscated to the Government as the vehicle was involved in an
abkari crime. The petitioner had submitted reply to Exhibit P-1
show cause notice. The Deputy Excise Commissioner, Kasaragod
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
passed the impugned order in Exhibit P-4 dated 27.07.2022
ordering impounding of the vehicle in favour of the Government.
The petitioner had preferred an appeal under Section 67E of the
Abkari Act before the 3rd respondent, Additional Excise
Commissioner, Thiruvananthapuram. However, the 3rd
respondent dismissed the appeal vide Exhibit P-6 order dated
22.10.2022. These orders in Exhibits P-4 and P-6 are under
challenge before this Court in the present writ petition.
3. Heard the learned Counsel for the petitioners and Mr. V. S.
Sreejith, learned Government Pleader for the official
respondents.
4. In none of the aforesaid cases the owners who are the
petitioners before this Court are the accused. Except for one
case, the quantity of liquor seized from the vehicle is not
enormous. A person can bring liquor from outside the State up
to 3 litters. Truck/lorry will have driver and helper and, therefore,
two persons are entitled to bring 6 litters of liquor from outside
the State in a vehicle.
5. The learned Counsel for the petitioners have submitted
that no material was there before the Excise authorities to prove
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
2024:KER:74259
the petitioners' involvement/consent/connivance in importing
the illicit liquor seized from the vehicles. In one case, the Arrack
of 400 ml was seized from the person and not from the vehicle.
6. The submission is that when the petitioners are not the
accused in the crime registered in respect of the liquor seized
from the respective vehicles and, only driver is the accused, the
ground taken for impounding the vehicles that the petitioners
have not taken due care to prevent the illicit import of the liquor
is not correct. It is further submitted that the confiscatory
provisions are stringent provisions and it should construe strictly
and no liberal interpretation can be given to these provisions
which have serious consequences. The learned Counsel for the
petitioners have placed reliance on the Judgment of this Court in
the case of State of Kerala and Others v. Navaru Swapna Reddy
[W.A. No. 1202 of 2021] reported in 2024 ICO 964 in support of
their submissions.
7. On the other hand, learned Government Pleader has
submitted that, two authorities have concurrently held that the
petitioners have not taken sufficient precaution to avoid and
prevent the import of illicit liquor recovered from their vehicles.
WP(C) NOS. 38193 AND 38159 OF 2022 &
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The owner's liability under the Excise Act and the Rules made
thereunder is joint and several with the driver or the occupier of
the vehicle. The offences were committed by the drivers during
the course of their employment and the petitioners therefore
cannot escape the liability of confiscation of the vehicle as per the
provisions of Sections 67B and 67C of the Abkari Act. The learned
Government Pleader has placed reliance on the Judgments of
this Court in W.A. No.2652 of 2015 dated 05.10.2016 and Excise
Commissioner, Thiruvananthapuram and others v. Alex C. A.
[2017 KHC 852].
8. I have considered the submissions. It would be appropriate
to take note of the relevant provisions of the Abkari Act before
adverting to the submissions advanced on behalf of the parties.
Sections 65, 67B and 67C which are relevant for the purposes of
decision on these writ petitions are extracted hereunder;
65. What things liable to confiscation. -
In any case in which an offence has been
committed under this Act, the liquor, drug,
materials, still, utensil, implement or
apparatus in respect [or by means] of which
an offence has been committed shall be
liable to confiscation.
WP(C) NOS. 38193 AND 38159 OF 2022 &
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Any liquor or intoxicating drug lawfully
imported, exported, transported,
manufactured had in possession or sold or
toddy lawfully drawn or tapped along
with,or in addition to any liquor, intoxicating
drug or toddy, liable to confiscation under
this section, and the receptacles, packages
and coverings in which any such liquor,
intoxicating drug, materials, still, utensil,
implement or apparatus as aforesaid is or
are found, and the other contents, if any, of
the receptacles or packages in which the
same is or are found, and the animals, carts,
vessels or other conveyances used in
carrying the same, shall likewise be liable to
confiscation
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
WP(C) NOS. 38193 AND 38159 OF 2022 &
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2024:KER:74259
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.
WP(C) NOS. 38193 AND 38159 OF 2022 &
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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 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.
WP(C) NOS. 38193 AND 38159 OF 2022 &
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8A. From reading of the provisions of Sections 65, 67B and 67C,
it can be seen that in case of an offence having been committed
under the Act, the liquor, drug materials, still, utensils etc. in
respect of or by means of which an offence has been committed
is liable to be confiscated. Under Section 67B, any animal, cart,
vessel, or other conveyance used in carrying any illicit liquor,
intoxicating drug material still, utensil, implement or apparatus
etc. may also be confiscated on satisfaction of the authorised
officer that an offence under the Act has been committed in
respect of or by means of that property and it would be irrelevant
that whether or not prosecution has initiated for commission of
such offence. However, before an order of confiscation has been
passed, a show cause notice is required to be issued under Section
67C of the Act as Section 67C provides that no order of
confiscation of any property shall be passed under Section 67B
unless a person from whom such property seized is given notice
in writing informing him the ground for which it is proposed to
confiscate such property. In respect of any animal, cart, vessel, or
other conveyance, the owner is required to be given show cause
WP(C) NOS. 38193 AND 38159 OF 2022 &
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notice. Sub-section (2) of Section 67C provides that, the order
under Section 67B for confiscating of any animal, cart, vessel, or
other conveyance shall not be passed if the owner of the animal,
cart, vessel, or other conveyance proves to the satisfaction of the
authorised officer that the same was used without the
knowledge or the connivance of the owner himself, his agent, if
any and he has taken reasonable and necessary precautions
against such use of the animal , cart, vessel, or other conveyance.
Though, no specific provision is there for issuing notice to the
owner of the animal, cart, vessel, or other conveyance, but, from
reading of the provisions of Sub-section (2) of Section 67C, it can
be inferred that the owner should be given notice to prove that
the offence was committed without his knowledge or connivance
and all reasonable and necessary precautions were taken to
prevent the use of the vehicle etc. for commission of the offence.
9. As mentioned above, the petitioners are not the accused
and, therefore, it is established that the offence was committed
by the drivers of the vehicle without their knowledge and
connivance. Otherwise, they would also been made accused
under Section 120B of the IPC. Except for the driver of the
WP(C) NOS. 38193 AND 38159 OF 2022 &
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vehicles, no one is the accused in the offence. The owners have
taken a specific plea in their reply in the show cause notice that,
all reasonable and necessary precautions were taken by them
against any misuse of the vehicle or using the vehicle for
commission of the alleged offences. The Excise authorities have
not brought any material on record except for saying that
reasonable and necessary precautions were not taken. This Court
fails to understand that except for instructing their driver that,
they should not get involved in any offence, what other
precaution the owner could have taken as is required under Sub-
section (2) of Section 67C of the Act.
10. The Division Bench of this Court in State of Kerala and
Others v. Navaru Swapna Reddy (supra) after considering all
previous Judgments in the subject, in paragraph No. 16 held as
under;
16. Kerala is not a State where sale and
consumption of liquor is prohibited. Section 9
of the Act confers power on the State
Government to prohibit transportation of
liquor from any local area into another local
area by notification. The power under Section 9
is being exercised by the State Government in
and around religious places during festive
seasons by notification prohibiting
WP(C) NOS. 38193 AND 38159 OF 2022 &
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transportation of liquor to that area. One would
not know normally about the notifications of
this nature unless he/she belongs to the area
concerned, though one is presumed in law to
know about such notifications. It is seen that
one of such notifications was issued by the
State Government in connection with
Sabarimala pilgrimage for the period from
12.11.2017 to 20.01.2018. Obviously, the
purpose of such a notification is maintenance of
tranquillity in the area since large number of
pilgrims from different States gather in that
place during the relevant period. Even though it
is alleged in the impugned orders that boards
were exhibited in the area about the
notification issued under Section 9, it is difficult
to attribute knowledge about such notifications
to persons coming from different States. Again,
in so far as Indian Made Foreign Liquor is
available in market in both the State of
Telangana and the State of Kerala, it is difficult
to attribute knowledge to people who are
coming from outside the State that the liquor
intended for sale in other States cannot be
brought into the State of Kerala even for
consumption, for the State Government has not
received excise duty in respect of the same.
That apart, the materials indicate that the
liquor allegedly carried in the vehicle was found
beneath the seat of the car and it was detected
in the course of a routine inspection conducted
by the Bomb Squad of the Police who were
patrolling in the area. It is evident that having
regard to the quantity, the liquor, if at all
brought by the accused, must not have been for
any commercial purpose. There were
altogether five passengers in the vehicle and
WP(C) NOS. 38193 AND 38159 OF 2022 &
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there is nothing on record to indicate that who
among the passengers possessed the liquor, for
the quantity of the liquor is such that it could be
carried by one person without the knowledge
of others also. There is also nothing on record
to show that the liquor was carried by the
husband of the petitioner or that it was carried
by another with the knowledge of the husband
of the petitioner. In the aforesaid
circumstances, according to us, it is a fit case
where the authorised officer ought to have
exercised discretion not to order confiscation of
the vehicle worth several lakhs of rupees for the
offences alleged to have been committed by
means of the vehicle ordered to be confiscated
in respect of 3.3 litres of Indian Made Foreign
Liquor merely for the reason that it was
intended for sale in another State and the
vehicle happened to be in an area covered by a
notification issued under Section 9 of the Act,
though the allegation, if proved, would make
out the offences alleged. Needless to say,
Exts.P7 and P9 orders are liable to be interfered
with.
In the result, while we hold that the view taken
by the learned Single Judge that it is obligatory
for the authorised officer exercising power
under Section 67B(2) of the Act to issue notice
to the person from whom the property sought
to be confiscated has been seized before
ordering confiscation of the same even if he is
not the owner of the property, is unsustainable
in law, we allow the writ petition and quash
Exts.P7 and P9 orders. The appellants are
directed to release the vehicle to the petitioner
forthwith.
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11. Considering the aforesaid facts and provisions of the Act, I
am of the view that the impugned orders are unsustainable.
Hence, the impugned orders are set aside and these writ
petitions are hereby allowed. The respondents are directed to
release the vehicles to their respective owners as the offences
were not committed with the knowledge and connivance of the
owners and they had taken the reasonable and necessary
precautions against use of their vehicles for commission of the
offences for which the drivers alone are being prosecuted.
Sd/-
DINESH KUMAR SINGH
JUDGE
Svn
WP(C) NOS. 38193 AND 38159 OF 2022 &
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APPENDIX OF WP(C) 38193/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE REPLY SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT DATED
20.07.2021.
Exhibit P2 TRUE PHOTOCOPY OF THE DEPOSITION DATED
06.08.2021 OF SRI.MOHAMMED SHAN BEFORE THE 4TH
RESPONDENT.
Exhibit P2(a) ENGLISH TRANSLATION OF EXT. P2.
Exhibit P3 TRUE PHOTOCOPY OF THE DEPOSITION DATED
06.08.2021 OF SRI.FAIZAL C.A BEFORE THE 4TH
RESPONDENT.
Exhibit P3(a) ENGLISH TRANSLATION OF EXT. P3.
Exhibit P4 TRUE PHOTOCOPY OF THE ORDER NO.EDO
KSD/321/2021-KS3 DATED 27.07.2022 PASSED BY THE 4TH
RESPONDENT.
Exhibit P4 (a) ENGLISH TRANSLATION OF EXT.P4.
Exhibit P5 TRUE PHOTOCOPY OF THE APPEAL MEMORANDUM
DATED 20.08.2022 FILED BEFORE THE 3RD RESPONDENT.
Exhibit P6 TRUE PHOTOCOPY OF THE ORDER NO.43/ APL/2022
DATED 22.10.2022 PASSED BY THE 3RD RESPONDENT.
Exhibit P6 (a) ENGLISH TRANSLATION OF EXT.P6.
Exhibit P7 TRUE PHOTOCOPY OF THE TAX INVOICE DATED
07.06.2021 ISSUED FROM MANGALORE REFINERY AND
PETROCHEMICALS LIMITED.
WP(C) NOS. 38193 AND 38159 OF 2022 &
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Exhibit P8 TRUE PHOTOCOPY OF THE DECISION NAZEER M.P VS.
STATE OF KERALA & OTHERS REPORTED IN 2022(1) KLJ
Exhibit P9 TRUE PHOTOCOPY OF THE DECISION, STATE OF KERALA
& OTHERS VS. NAVARU SWAPNA REDDY REPORTED IN
2022(1) KHC 563 (DB).
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
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APPENDIX OF WP(C) 38159/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE REPLY SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT DATED
20.07.2021.
Exhibit P2 TRUE PHOTOCOPY OF THE DEPOSITION DATED
06.08.2021 OF SRI.KABEER KHAN BEFORE THE 4TH
RESPONDENT.
Exhibit P2(a) ENGLISH TRANSLATION OF EXT.P2.
Exhibit P3 TRUE PHOTOCOPY OF THE DEPOSITION DATED
06.08.2021 OF SRI.FAIZAL C.A BEFORE THE 4TH
RESPONDENT.
Exhibit P3(a) ENGLISH TRANSLATION OF EXT.P3.
Exhibit P4 TRUE PHOTOCOPY OF THE ORDER NO.EDO
KSD/316/2021-KS3 DATED 26.07.2022 PASSED BY THE 4TH
RESPONDENT.
Exhibit P4(a) ENGLISH TRANSLATION OF EXT.P4.
Exhibit P5 TRUE PHOTOCOPY OF THE APPEAL MEMORANDUM
DATED 20.08.2022 FILED BEFORE THE 3RD RESPONDENT.
Exhibit P6 TRUE PHOTOCOPY OF THE ORDER NO.44/ APL/2022
DATED 22.10.2022 PASSED BY THE 3RD RESPONDENT.
Exhibit P6(a) ENGLISH TRANSLATION OF EXT.P6.
Exhibit P7 TRUE PHOTOCOPY OF THE TAX INVOICE DATED
07.06.2021 ISSUED FROM MANGALORE REFINERY AND
PETROCHEMICALS LIMITED.
WP(C) NOS. 38193 AND 38159 OF 2022 &
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Exhibit P8 TRUE PHOTOCOPY OF THE DECISION NAZEER M.P VS.
STATE OF KERALA & OTHERS REPORTED IN 2022(1) KLJ
188. DATED 5·11-21.
Exhibit P9 TRUE PHOTOCOPY OF THE DECISION, STATE OF KERALA
& OTHERS VS. NAVARU SWAPNA REDDY REPORTED IN
2022(1) KHC 563 (DB). DATED 17.1.22.
WP(C) NOS. 38193 AND 38159 OF 2022 &
14287 AND 13203 OF 2024
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APPENDIX OF WP(C) 13203/2024
PETITIONER'S EXHIBITS
Exhibit P1 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT
DATED 19.07.2021.
Exhibit P2 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT
DATED 29.08.2022.
Exhibit P3 COPY OF THE APPEAL PREFERRED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED 17.10.2022.
Exhibit P4 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT
DATED 11.01.2023.
Exhibit P5 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT
DATED 07.02.2024.
Exhibit P6 COPY OF THE JUDGMENT IN W.P (C) NO.21756/2005
DATED 28.07.2015.
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APPENDIX OF WP(C) 14287/2024
PETITIONER'S EXHIBITS
Exhibit P 1 TRUE COPY OF THE JUDGMENT DATED 28.10.2023 IN S.C.
NO. 413 OF 2021 ON THE FILES OF THE ASST. SESSIONS
COURT SULTHAN BATHERY.
Exhibit P 2 TRUE COPY OF ORDER NO. W5-2772/2021 DATED
6.12.2023 OF THE 4TH RESPONDENT, DEPUTY EXCISE
COMMISSIONER WAYANAD.
Exhibit P 3 TRUE COPY OF THE ORDER NO. 62/ALP/2023 DATED
26..2..2024 OF THE 3RD RESPONDENT.
