Kerala High Court
State Of Kerala vs Varghese Kurisingal on 28 July, 2025
WA NO.79/2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
WA NO.79 OF 2024
ARISING OUT OF THE JUDGMENT DATED 16.08.2023 IN WP(C)
NO.20067/2014 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS IN WP(C):
1 STATE OF KERALA
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
NEW ADDRESS REPRESENTED BY CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN 695001
2 THE COMMISSIONER OF EXCISE
THIRUVANANTHAPURAM, PIN - 695001
3 ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT)
THIRUVANANTHAPURAM, PIN - 695001
4 DEPUTY EXCISE COMMISSIONER
OFFICE OF DEPUTY EXCISE COMMISSIONER,
ALAPPUZHA, PIN - 688001
BY ADV.SRI.K.P.HARISH, SR.GOVERNMENT PLEADER
RESPONDENT/PETITIONER IN WP(C):
VARGHESE KURISINGAL
AGED 32 YEARS
S/O.JOSEPH, 21/3, KURISINAGAL HOUSE,
MUNDANVELI P.O., KOCHI, PIN - 682007
BY ADV. SRI.GEORGE CHERIAN (SR.)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
07.07.2025,THE COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
WA NO.79/2024 2
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JUDGMENT
Dated this the 28th day of July, 2025
Syam Kumar V.M., J.
This Writ Appeal is filed by the State challenging the
judgment of the learned Single Judge dated 16.08.2023 in W.P.
(C) No.20067 of 2014. Respondent was the petitioner in the said
W.P.(C).
2. The Writ Petition was filed by the respondent seeking
the following prayers :
"(i) to issue a writ of certiorari or any other writ or direction quashing
Exts.P6, P8 and P9 holding that the petitioner's vehicle was
used by the workshop owner without the petitioner's consent
and knowledge and that the same is not liable to be
confiscated ;
(ii) allow such other writ order or direction which this Hon'ble Court
may deem fit and proper in the circumstances of this case in
the interest of justice ; and
(iii) allow the costs of this proceedings to the petitioner."
3. The case of the respondent was that he is the owner of
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a Fiat Punto Motor car bearing registration No.KL-43/B-8546, which
was involved in Crime No.41 of 2013 of Kayamkulam Excise Range
for illegal transportation of liquor. He contended that he had
entrusted the car to a workshop on 13.05.2013 for repairs, and
without his knowledge or consent, the said vehicle was used by the
workshop owner for transporting contraband. When the car was
taken into custody, the respondent had lodged a case before the
Sub Inspector of Police, Kadavanthra Police Station, against the
workshop owner alleging criminal breach of trust and cheating.
While so Ext.P4 showcause notice was issued to the respondent by
the 4th appellant confiscating the vehicle and thereafter Ext.P6 order
dated 28.06.2013 was issued holding that the respondent had failed
to take possible precaution against the misuse of the vehicle, and
consequently ordering the car owned by the respondent to be
confiscated to the Government with all its accessories. Respondent
had challenged Ext.P6 by filing an appeal before the 3 rd appellant
invoking Section 67E of the Abkari Act. The said appeal was
dismissed vide Ext.P8 order dated 04.11.2013 confirming Ext.P6
order rendered by the 4th appellant. It was further stated in Ext.P8
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order that the vehicle can be released to the respondent if he pays
the market value of the vehicle as decided by the Mechanical
Engineer of the Excise Department. The respondent had filed a
revision which was also dismissed vide Ext.P9 order dated
05.05.2014. Aggrieved by Exts.P6, P8 and P9 and terming them as
unjust and illegal, the Writ Petition had been filed. The Single Bench
had vide interim order dated 05.08.2014, directed release of the
vehicle to the respondent upon furnishing value of the vehicle. The
said order was complied with. Subsequently, the W.P.(C) was
disposed of vide the impugned judgment, directing the appellants to
refund the amount remitted by the respondent towards the value of
the vehicle, primarily taking note of the fact that the respondent had
been acquitted in Sessions Case bearing No.33 of 2016 vide
judgment dated 31.03.2022. Aggrieved by the said judgment of the
learned Single Judge, this appeal has been filed.
4. Heard Sri.K.P.Harish, learned Senior Government Pleader
on behalf of the appellants and Sri.George Cherian, Senior
Advocate, instructed by Smt.Latha Susan Cherian, Advocate for the
respondent.
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5. The learned Senior Government Pleader contended that
the learned Single Judge had erred in overlooking the settled legal
position of law that acquittal of an accused in criminal proceedings is
not a ground to quash the proceedings under Section 67B of the
Abkari Act. Relying on the said provision of the Abkari Act, it is
contended that the fate of the confiscation proceedings can be
decided only by the competent authorities following the provisions of
the Abkari Act and that the said proceedings do not depend upon
the criminal proceedings initiated against the accused or upon his
acquittal. Reliance is placed on the dictum laid down in Deepak v.
Commissioner of Excise (2018 (2) KLT 148), wherein it has been
held that the provisions of the Abkari Act empower the authorised
officer to proceed with the confiscation proceedings, de hors the
other provisions of the Act, irrespective of whether the accused is
prosecuted or not for the offence involved and irrespective of the
outcome of such prosecution. It is further submitted that in
Deepak's case (supra), this Court had also held that the power of
the authorised officer under Section 67B is an independent penal
provision under the Act and an authorised officer can proceed with
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the confiscation proceedings irrespective of the outcome of the
prosecution of the case. Reliance is also placed on the dictum laid
down in Shaiju v. Assistant Excise Commissioner and another
(2008 (2) KHC 952) wherein it had been held that the irrespective of
whether the accused is prosecuted or not for the offence involved
and irrespective of its outcome because of the non obstante clause
in Section 67B, a vehicle involved in an abkari offence is liable for
confiscation. The learned Senior Government Pleader also relies on
the dictum laid down in Excise Commissioner,
Thiruvananthapuram and others v. Alex C.A. (2017 KHC 852)
wherein this Court had held that the burden to prove the ingredient
of Section 67C (2) to exclude confiscation in terms of Section 67B is
upon the owner of the confiscated vehicle and that the owner has to
prove that the vehicle used for carrying the contraband was without
his knowledge or connivance of himself, his agent, if any, and the
person in charge of the vehicle. The owner also has to establish
that all reasonable and necessary precautions for preventing the use
of the vehicle for illegal activities were adopted by him or his agent in
charge of the vehicle. Relying on the said dictum, it is further
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contended that none of the said ingredients or requirements have
been met. The burden thus placed on the owner is very heavy in so
far as he has to prove that the vehicle used for carrying the
contraband was without his knowledge or connivance of himself, his
agent, if any, and the person in charge of the vehicle. That apart, the
further act that he had taken all reasonable and necessary
precautions against such use is also a fact to be proved by the
owner of the vehicle. None of the same had been met in the case
at hand. The learned Senior Government Pleader also places
reliance on the judgment of this Court in State of Kerala v. Manual
Vinod (judgment dated 05.10.2016 in W.A.No.2652 of 2015)
wherein a boat was given on lease and the lease agreement
stipulated that the lessee shall not part with the possession of the
vessel. Later, as part of business, the lessee had let out the boat to
another concern which organised a DJ party on the vessel and
following a police raid, contraband goods were seized. In the Writ
Appeal filed by the State challenging the order of the learned Single
Judge quashing the proceedings initiated under the Section 67 B
and 67 E of the Abkari Act, this Court had after considering the
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contention that the lease deed satisfied the requirements of Section
67(C)2 of the Act turned it down and had held as follows :
"Having regard to the statutory requirements of
Section 67 C (2), we cannot accept this contention
because the Section requires not only the owner but
also his agent and the person in charge of the vessel
to be not having knowledge or connivance and that
each of them had taken necessary and reasonable
precautions against such use. In other words, even if
we accept that the respondent being the owner had
no knowledge or connivance and that he had taken
reasonable and necessary precautions, there is
nothing on record to show that either the lessee,
Green Bay Leisure Management Private Limited or
My Kochi on line or the crew of the vessel were not
having knowledge or connivance or that if they had
taken reasonable and necessary precautions against
the use of the boat leading to the recovery of the
contraband articles."
The learned Senior Government Pleader thus relied on the above-
mentioned precedents and prayed that the impugned judgment of
the learned Single Judge rendered overlooking the law may be set
aside.
6. Per contra, the learned Senior Counsel appearing for
the respondent points to the contents of Exts.P6, P8 and P9 and
terms them as mechanical, arbitrary and illegally rendered. On law,
he submits that Section 67B of the Abkari Act does not empower the
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confiscation of the property when the prosecution itself has resulted
in acquittal. He terms the interpretation given to Section 67B of the
Act as erroneous and argues that the judgment of the learned Single
Judge does not require any interference and the same has been
validly rendered. The learned senior counsel placed reliance on the
judgment dated 31.03.2022 in Sessions Case No.33 of 2016 of the
Sessions Court, Alappuzha, wherein the respondent, who was
arrayed as accused No.7, had been acquitted, finding him not guilty
of the offences charged against him. It has been held therein that
the prosecution had failed to prove the case against the accused
beyond reasonable doubt and that there was insufficient evidence to
prove that the accused had committed the alleged offences.
Consequently, accused Nos 2 to 7 were found not guilty and
acquitted. The learned Senior Counsel buttresses his contention
placing reliance on the dictum laid down in K.Rajesh v. Sub
Inspector of Police, Palakkad and others (2015 (4) KHC 253)
wherein it had been held by this Court that to confiscate a vehicle
under Section 67C of the Act, it has to be established that the owner
of the vehicle was a party to the offence or he had prior knowledge
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about the illegal use of the vehicle. If it is not established that the
owner of the vehicle had knowledge or that he connived with the
persons who were illegally transporting the contraband, he cannot
be penalised merely because his vehicle is involved in the
offence. Pointing to Ext.P6 he contends that the said mandate had
not been met. Reliance is also placed on the dictum laid down by
this Court in Nazeer M.P. v. State of Kerala and others (2021 (6)
KHC 752) that when it is shown that the owner had no control of
activities that took place using the vehicle, it cannot be assumed that
the vehicle was entrusted with an intention to commit the offence of
carrying contraband articles and thus an order of confiscation of the
vehicle cannot be made automatically for the reason that an offence
has been committed making use of the vehicle. It is thus prayed that
the judgment had been validly rendered and does not suffer from
any illegality requiring interference by the Division Bench in this
appeal.
7. We have heard both sides in detail and have considered
the contentions put forth. The challenge in the W.P.(C) was against
Exts. P6, P8 and P9 orders rendered in the original proceedings
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under Section 55, the appeal under Section 67 E and the revision
under Section 67 F respectively of the Abkari Act. They were
challenged inter alia on the ground that there was no proper
appreciation of the contentions put forth and that the same had been
rendered mechanically without proper application of mind. It was
also contended that the Revisional Authority had exceeded its
jurisdiction and entered into various findings without any evidence
on record. It is a specific ground taken in the W.P.(C) that the orders
in appeal and the revision are mere reproductions of the earlier
orders and that the contention that the respondent owner of the
vehicle is entitled to protection under Section 67 C (2) of the Act had
not been considered at all. It is noted that by the time the W.P.(C)
came up for final consideration, the judgment rendered by the
Sessions Court acquitting the respondent had been produced and
taking note of the fact that the said acquittal bolstered the
contentions of the respondent, the learned Single Judge had
proceeded to dispose of the W.P.(C). We find merit in the contention
that a perusal of Ext.P6 order would reveal that the same had been
rendered in a very cryptic and mechanical fashion. Though it states
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that the contentions of the owner of the vehicle and the case records
were examined in detail, the order is bereft of any details or
reasoning. The only reason stated to conclude against the
respondent was that the owner of the vehicle had failed to take
precautions against the misuse of the vehicle. The reasoning for
arriving at such a conclusion as seen stated in Ext. P6 order is that,
"No one would believe the version of giving the vehicle for repair
indefinitely, having no time limit and without any documents." A
specific ground had been taken in the Writ Petition that the said
reason stated in Ext.P6 order is no reason at all and is per se illegal.
Section 67C(2) inter alia stipulates that no order of confiscation
could be passed if the owner of the conveyance proves to the
satisfaction of the authorised officer that it was used as alleged,
without the knowledge or connivance of the owner and that all
reasonable and necessary precautions against such use have been
taken. It is the specific case of the respondent that he had put forth a
valid and tenable case, so as to invoke the protections available
under Section 67C (2). Ext.P6 order does not reveal any worthwhile
discussion on the explanations put forth, except for the cryptic
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remark that no one would believe the version put forth. As regards
Ext.P8 order rendered in the appeal preferred from Ext.P6 as well as
Ext.P9 order rendered on the revision petition filed therefrom, it is
seen that they are more or less reiterations of the same findings,
mechanically and do not reveal a proper application of mind to the
contentions put forth.
8. We now proceed to consider the legal contentions put
forth based on Section 67B of the Abkari Act and the precedents
relating to the same. The learned Single Judge had disposed of the
W.P.(C) primarily on the reasoning that the Sessions Court had
acquitted the respondent in the prosecution and therefore nothing
survives in the matter regarding confiscation under Section 67B.
This finding is challenged in this appeal, and hence it assumes
relevance to consider whether the confiscation steps initiated under
Section 67B of the Abkari Act would survive the acquittal of the
accused in the prosecution. Section 67 B of the Abkari Act reads as
follows:
"[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,
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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."
The said provision, we note, has already been subjected to intensive
judicial scrutiny. In Shaiju's case (supra), the petitioner therein had,
basing on the judgment rendered by the Sessions Judge acquitting
him, contended that confiscation of his motorcycle cycle alleged to
have been used for transporting illicit arrack, is illegal. This Court
turned down the said contention and held that irrespective of
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whether the accused is prosecuted or not for the offence involved
and irrespective of its outcome, because of the non-obstante clause
contained in Section 67B, a vehicle involved in an abkari offence is
liable to confiscation. In Deepak's case (supra), a Division Bench of
this Court held that in view of the non-obstante clause in Section
67B of the Abkari Act, the power of confiscation under Section 67B
is independent of the penal provisions contained in the said Act. In
the said case, the petitioner was alleged of engaging in the sale of
Indian made foreign liquor, and he was keeping liquor in his
autorickshaw. Later on, after trial, the petitioner was acquitted and
found not guilty of the offence punishable under Section 55(1) of the
Act by the Sessions Court, Kottayam. In Alex C.A.'s case (supra), a
Division Bench of this Court had held that the burden to prove the
ingredient of Section 67C (2) to exclude confiscation in terms of
Section 67B is upon the owner, and that the burden is very heavy,
as he has to prove that the vehicle used for carrying the contraband
was without his knowledge or connivance of himself, his agent, if
any, and the person in charge of the vehicle. In Manual Vinod
(supra), brief facts of which have been mentioned herein above,
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again the scope of Section 67C(2) was considered by a Division
Bench of this Court and it was held that the said Section requires not
only the owner, but also his agent and person in charge of the
vessel, to be not having knowledge or the connivance and also that
each of them had taken necessary and reasonable precautions
against such use. It follows from above that the non-obstante clause
at the beginning of Section 67 B (1) of the Abkari Act well serves its
purpose of providing an overriding effect and ensures that the
provision it introduces, takes precedence over any contradictory
provisions both within the Act and beyond.
9. However, it is relevant to note that though Section 67B
starts with a non obstante clause, which indeed has the effect of
granting the said provision priority over any other conflicting rules of
provision, whether under the same law or in another law, nowhere
does Section 67 B (1) or (2) expressly state that the outcome of the
prosecution is totally irrelevant. Section 67B (2) reproduced above
only states that the authorised officer may, whether or not
prosecution is instituted for commission of the offence under the
Abkari Act, order confiscation of the relevant property. This could
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mean that the confiscation could be initiated, continued and effected
irrespective of whether a prosecution is instituted for the commission
of the offence. However, the provision does not expressly state that
the acquittal, if any, in the prosecution has no bearing at all on the
confiscation, especially when the legality of the confiscation
proceedings themselves is under scrutiny. This Court, while
scrutinising the legality of the confiscation proceedings, as done by
the Single Bench in the W.P.(C), can also take note of the outcome
of the prosecution instituted for the commission of the offence and
weigh the same while deciding on the legality. We note that the
reliance placed on the precedents to contend that 'the outcome of
the prosecution is irrelevant' is not supported by any express
statement to the said effect in Section 67 B (2). Thus, in the facts
and circumstances of the case at hand, the learned Single Judge
was right in taking note of the aspect of acquittal too while
considering the legality of Exts.P6, P8 and P9 orders. As we have
noted above, Ext.P6 order has been rendered in a rather cryptic and
arbitrary fashion. Exts.P8 and P9 orders that followed by way of
appeal and revision, respectively, also suffered from the same vice
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and had been rendered mechanically and without proper application
of mind. In such a scenario, the added reliance placed by the
learned Single Judge on the factum of acquittal in the prosecution
while disposing of the W.P.(C), inter alia, directing a refund of the
amounts to the respondent, cannot be termed illegal or perverse.
In view of the above, this Writ Appeal is dismissed. No
costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
