IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 29835 of 2008(B) -------------------------- PETITIONER(S): --------------- SURENDRAN.P., AGED 44 YEARS, S/O.NARAYANAN, THIRUTHIVALAPPIL VEEDU, KALLAI, KOZHIKODE. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, EXCISE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ADDITIONAL EXCISE COMMISSIONER, OFFICE OF THE ADDITIONAL EXCISE COMMISSIONER, PUBLIC OFFICE, OPP.MUSEUM, THIRUVANANTHAPURAM. 4. THE ASSISTANT EXCISE COMMISSIONER, OFFICE OF THE ASSISTANT EXCISE COMMISSIONER, KOZHIKODE. 5. THE EXCISE INSPECTOR, KOZHIKODE EXCISE RANGE. GOVERNMENT PLEADER SMT. K.R. DEEPA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.29835 OF 2008 ---------------------------------------- Dated this the 15th day of October, 2008 JUDGMENT The petitioner's vehicle was seized on allegations of commission of an abkari offence under Section 55(a) of the Abkari Act. Confiscation proceedings were initiated which ended in Ext.P3 order of the 4th respondent, whereby the petitioner's vehicle was confiscated. The petitioner's appeal before the 3rd respondent, Ext.P4, was also dismissed by Ext.P5 order. The petitioner is challenging Exts.P3 and P5 orders in this writ petition. 2. According to the petitioner, the petitioner, who is the owner of the vehicle, was not aware of the illegal act alleged to have been committed using the vehicle in question and since he had taken all necessary precautions to see that the vehicle is not used for any illegal purposes the vehicle is not liable to be confiscated. 3. I have considered the contentions of the petitioner. The act constituting the offence alleged to have been committed W.P.(c)No.29835/08 2 using the vehicle was that the autorickshaw belonging to the petitioner was found to be transporting 562 bottles of liquor without a valid permit. On apprehension of the vehicle, the driver, one Ramesan ran away. It is consequent to the same, the vehicle was seized. In the above circumstances, it is beyond doubt that using the vehicle an abkari offence has been committed in so far as transportation of the liquor was unauthorised. That being so, under Section 67C(2) of the Abkari Act, the onus of proving, that the transportation of the liquor was without the knowledge or connivance of the owner or his agent and the person in charge of the vehicle and that each of them have taken all reasonable and necessary precautions against such illegal use, is squarely on the petitioner. In Ext.P3 order, it is stated that pursuant to the show cause notice issued to the petitioner, the petitioner had not filed any reply within the time limit allowed. Of course, the petitioner claims that the petitioner had filed Ext.P2 reply to the show cause notice. Even assuming that Ext.P2 had been filed, Ext.P2 does not disclose any explanation regarding the onus of proof as per Section 67C(2) of the Abkari Act, except that the petitioner or the driver of the vehicle namely, his W.P.(c)No.29835/08 3 brother has not committed any abkari offence as alleged. Apart from that, the petitioner has not made any attempt whatsoever to prove that he or his brother had no knowledge about the commission of offence and that they had taken all precautions against the illegal use of the vehicle. Further the allegation is that on apprehension of the vehicle, the brother of the petitioner had run away. The petitioner had not even taken the trouble of producing oral evidence regarding the contentions now raised by the petitioner. In the above circumstances, the petitioner has not discharged the onus cast upon him under Section 67C(2) of the Abkari Act. That being so, I do not find any infirmity either in Exts.P3 or in Ext.P5 order. Accordingly, there is no merit in this writ petition and accordingly, the same is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.29835/08 4