IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 WP(C).No. 16802 of 2008(A) -------------------------- PETITIONER(S): --------------- BIJU MATHEW, S/O.MATHEW, KOLLAPPILLIL HOUSE, KUTHIRACHIRA, PUNALUR, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, KERALA STATE PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM. 3. SRI.K.MOHANAN, ASSISTANT EXCISE COMMISSIONER, THODUPUZHA, IDUKKI. 4. THE SUB INSPECTOR OF POLICE, SANTHANPARA POLICE STATION, IDUKKI DISTRICT. 5. THE SUB REGIONAL TRANSPORT OFFICER, PERUMBAVOOR, ERNAKULAM. 6. SRI.BIJU PAUL THURUTHIYIL HOUSE, KOMBANADU P.O., PERUMBAVOOR, ERNAKULAM DISTRICT. GOVERNMENT PLEADER FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 16802/2008. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF SALE AGREEMENT DT. 17-11-2006 EXT.P2 TRUE COPY OF 'B' REGISTER. EXT.P3 CERTIFICATE OF REGISTRATION. EXT.P4 FIR AND FIS IN CRIME NO. 331/2006. EXT.P5 INTERIM ORDER DT. 17-4-2007 IN W.P.C.NO. 13406/2007. EXT.P6 INTERIM ORDER DT. 14-6-2007 IN R.P.NO. 526/2007. EXT.P7 JUDGMENT IN W.P.C.NO. 13406/2007. EXT.P8 ORDER DT. 2-7-2007. EXT.P9 ORDER DT. 9-11-2007. EXT.P10 ORDER DT. 26-5-2008 IN CONT. CASE (C) DT. 26-5-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 16802 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd December, 2008. J U D G M E N T The petitioner claims to be owner of a motor vehicle, which was seized on allegation of commission of an abkari offence. Confiscation proceedings were initiated pursuant to the seizure, which resulted in Ext. P8 order dated 2-7-2007. Against that order, the registered owner of the vehicle had filed an appeal, which was also dismissed by Ext. P9 order. It is under the above circumstances, the petitioner has approached this Court with this writ petition seeking the following reliefs: “i. To call for the records leading to Ext. P8 and it further proceedings including sale of the petitioner's vehicle 2001 Model Toyoto qualis bearing Registration No. KL-5L-2236 to the 6th respondent from the 3rd respondent and issue a writ of certiorari or other appropriate writ, order or direction quashing Ext. P8 confiscation and its subsequent proceedings including the sale of the vehicle to the 6th respondent as the illegal and declared to be null and void. ii. To issue a writ of mandamus or other appropriate writ, order or direction commanding the 3rd respondent to release the petitioner's vehicle 2001 Model Toyoto qualis bearing Registration No. KL-5L-2236 subject to fresh confiscation of the proceedings after issuing notice to the petitioner within a stipulated time as directed by this Hon'ble Court. iii) To declare that the petitioner is in title, possession and enjoyment of the vehicle 2001 Model Toyota qualis bearing Registration No. KL-5L-2236 as per Ext. P1 and P3 and is entitled to get release of the vehicle. iv) To declare that Ext. P8 confiscation proceedings and its further proceedings including sale of the petitioner's vehicle 2001 Model Toyoto qualis bearing Registration No. KL-5L-2236 by the respondents 2 and 3 is strictly in violation of the Motor Vehicles Act, Sale of Goods Act, Abkari Act and the Abkari Shops Disposal in Confiscated Article Rules.” The petitioner's contention is that the petitioner is the de facto owner of the vehicle and therefore the orders passed without giving him an opportunity of being heard is unsustainable. W.P.C. No. 16802/2008 -: 2 :- 2. Admittedly, the petitioner was aware of the fact that the vehicle had been seized and confiscation proceedings were in progress. The concerned Assistant Excise Commissioner had issued notice to the registered owner regarding the confiscation proceedings. He did not choose to appear and contest the matter. The Assistant Excise Commissioner had no obligation to issue notice to the petitioner who was not the registered owner. Further, Ext. P1 is only an agreement for sale and the actual sale has not been proved. In such circumstances, if the petitioner wanted to prove that he as the owner did not know about the commission of the offence and he had taken all precautions to see that the vehicle is not put to such illegal use, it was for him to get impleaded in the proceedings and to prove the same. Although the petitioner was aware of the proceedings, he did not choose to enter appearance before the Assistant Excise Commissioner and to discharge the burden cast upon him under Section 67C of the Abkari Act. 30 cans of spirit, containing 35 litres each were seized from the vehicle in question. That being so, undoubtedly an abkari offence was committed using that vehicle. Therefore, it is for the owner of the vehicle to prove that it was without his knowledge the offence was committed and that he had taken all precautions against the use of the vehicle for commission of the offence. In the absence of any evidence to show that the owner of the vehicle had taken such precautions, I do not think that Exts. P8 or P9 orders can be interfered with. In any event, Ext. P8 order was passed on 2-7-2007 and Ext. P9 order was passed on 9-11-2007. The petitioner filed this writ petition only on 3-6-2008. He has not offered any valid explanation for the long delay in W.P.C. No. 16802/2008 -: 3 :- challenging the impugned proceedings although he was aware of the confiscation proceedings . That being so, I do not find any merit in the writ petition and accordingly, the same is dismissed. S. Siri Jagan, Judge. Tds/