[Cites 4, Cited by 0]

Kerala High Court

The Excise Commissioner vs K.M. Varghese on 20 January, 2026

W.A. No. 1887 of 2025

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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR. JUSTICE K. NATARAJAN
                                 &
              THE HONOURABLE MR. JUSTICE JOHNSON JOHN
 TUESDAY, THE 20TH DAY OF JANUARY 2026 / 30TH POUSHA, 1947
                        WA NO. 1887 OF 2025
      AGAINST THE JUDGMENT DATED 12.03.2025              IN   WP(C)
NO.2409 OF 2023 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS IN WP(C):

      1       THE EXCISE COMMISSIONER,
              OFFICE OF THE COMMISSIONER OF EXCISE,
              NANDAVANAM, THIRUVANANTHAPURAM-695 033.

      2       THE ADDITIONAL EXCISE COMMISSIONER
              (ENFORCEMENT), THIRUVANATHAPURAM-695 001.

      3       THE DEPUTY EXCISE COMMISSIONER,
              PATHANAMTHITTA, PATHANAMTHITTA DISTRICT-689 645.

      4       THE STATION HOUSE OFFICER,
              THIRUVALLA POLICE STATION,
              PATHANAMTHITTA DISTRICT, PIN - 689 101.

              BY ADV
              SRI. T.K.VIPINDAS, SENIOR GOVERNMENT PLEADER
RESPONDENT/PETITIONER IN WP(C):

          K.M. VARGHESE,
          AGED 75 YEARS, S/O. MATHEW, KOTHAVELIL VEEDU,
          MANNAR P.O., NIRANAM VILLAGE, THIRUVALLA TALUK,
          PATHANAMTHITTA DISTRICT-689 622.
          BY ADV
          SRI. MOHANAN M.K.
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
20.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.A. No. 1887 of 2025

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                            JUDGMENT

(Dated this the 20th day of January, 2026)

K. NATARAJAN, J.

This appeal is filed by the appellants/respondents in writ

petition to set aside the judgment for having allowed the writ

petition, WP(C) No.2409/2023 filed by the respondent/

petitioner by the Learned Single Judge.

2. We have heard the arguments of the learned Senior

Government Pleader appearing for the appellants as well as

the learned counsel for the respondent/petitioner.

3. The case of the respondent/petitioner before the

Learned Single Judge is that the respondent/petitioner is the

registered owner of the Renault Duster Motor car bearing

Reg.No.KL-27 F16 and which was seized by the Excise

department on 03.04.2020 on the ground that the vehicle

was carried Indian made Foreign Liquor of 4.25 liters. An FIR

has been lodged under the Abkari Act against 3 persons

including the son of this respondent/petitioner. Subsequently,

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the son of the respondent/petitioner, Subin Mathew Varghese,

already approached the High Court by filing Crl.M.C.

No.1132/2021 under Section 482 of the Criminal Procedure

Code against him, the FIR has been quashed. Subsequently,

charges levelled against the accused Nos.1 & 2 has also

ended in acquittal.

4. The learned counsel for the respondent/petitioner

has contended that the confiscation proceedings initiated by

the Abkari Excise Commissioner is not sustainable. In order

to quash the confiscation proceedings, he approached the

Learned Single Judge of this Court by filing writ petition and

the Learned Single Judge after considering the arguments,

relied upon the judgment of the Division Bench, allowed the

writ petition and quashed the confiscation proceedings.

Accordingly, these appellants/ Excise department are before

this Court.

5. The learned Senior Government Pleader appearing

for the appellants has vehemently contended that the learned

Single Judge of this Court committed error in allowing the writ

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petition only on the ground of quashing the FIR against

accused No.3 and acquittal made against accused 1 & 2,

confiscation proceedings cannot be quashed and prayed for

setting aside the order and to dismiss the writ petition.

6. Per contra, the learned Counsel appearing for the

respondent has supported the order passed by the learned

Single Judge of this Court.

7. Having heard the arguments and perused the

records. On perusal of the same, which reveals that

admittedly FIR was registered against three persons by the

Thiruvalla Police under the Excise Act for having carrying out

the liquors of 4.25 Liters during the lock down period.

Admittedly, the learned Single Judge of this Court in

Crl.M.C.No.1132/2021 quashing the FIR as against the

accused No.3 who is none other than the son of the very

respondent/petitioner, RC owner of the vehicle. Subsequently,

the prosecution has been launched against the accused Nos.1

and 2 before the Sessions Judge, Pathanamthitta Division in

Sessions Case No.422/2021 and the said case was ended in

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acquittal vide judgment dated 06.10.2023. On this

background of the admitted fact, now the confiscation order

passed by the Abkari Excise Commissioner, Abkari

department, is sustainable under the law has been challenged

before the learned Single Judge of this Court.

8. The Hon'ble Supreme Court in the case of Abdul

Vahab (Supra) at para 20 and 21 has held as under :-

"20. In the present case, the appellant's truck was confiscated on account of the criminal proceedings alone and therefore, under the applicable law, the vehicle cannot be withheld and then confiscated by the State, when the original proceedings have culminated into acquittal. It is also not the projected case that there is a likelihood that the appellant's truck will be used for committing similar offence.

21. It should be noted that the objective of the 2004 Act is punitive and deterrent in nature. Section 11 of the 2004 Act and Rule 5 of M.P Govansh Vadh Pratishedh Rules, 2012, allows for seizure and confiscation of vehicle, in case of violation of sections 4,5,6, 6A and 6B. The confiscation proceeding, before the District Magistrate, is different from criminal prosecution. However, both may run simultaneously, to facilitate speedy and effective adjudication with regard to confiscation of the means used for committing the offence. The District Magistrate has the power to independently adjudicate cases of violations under Sections 4, 5, 6, 6A and 6B of the 2004 Act and pass order of confiscation in case of violation. But in a case where the offender/accused are acquitted in the Criminal Prosecution, the judgment given in the Criminal Trial should be factored in by the District Magistrate while deciding the confiscation proceeding. In the present

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case, the order of acquittal was passed as evidence was missing to connect the accused with the charges. The confiscation of the appellant's truck when he is acquitted in the Criminal prosecution, amounts to arbitrary deprivation of his property and violates the right guaranteed to each person under Article 300A. Therefore, the circumstances here are compelling to conclude that the District Magistrate's order of Confiscation (ignoring the Trial Court's judgment of acquittal), is not only arbitrary but also inconsistent with the legal requirements".

Based upon the judgment of the Hon'ble Supreme Court,

the Learned Single Judge of this Court in Biju Ettammal's

case also held that when the accused has been acquitted in

the criminal prosecution relying to the same offence, the

confiscation of the vehicle under Section 67 (b) of the Abkari

Act cannot be sustainable. In view of judgment of the Hon'ble

Apex Court held in the Abdul Vahab's case, the confiscation

proceedings held by the respondent is not sustainable. Even

in the another co-ordinate Bench judgment in WA No.79/2025

dated 28.07.2025 in the case of State of Kerala & Ors., Vs.

Varghese Kurisingal, the State has filed appeal against the

order setting aside the confiscation of the vehicle has been