IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 40574 of 2003(E) ----------------------------------------- PETITIONER(S): ------------------------- K.K. BAIJU, S.N. BHAVAN, KUDAVECHOOR KARA, VAIKOM, KOTTAYAM DISTRICT. BY MR.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT(S): ----------------------------- 1. ASST.EXCISE COMMISSIONER, KOTTAYAM. 2. THE ADDL.EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT.K.R. DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.40574/2003 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE FINAL CHARGE IN CR.NO.118/2000 FILED BEFORE THE JUDL. FIRST CLASS MAGISTRATE COURT, VAIKOM. P2: COPY OF THE TODDY TRANSPORT PERMIT NO.P5-6438/99 DTD. 11/10/1999 ISSUED BY THE ASST.EXCISE COMMISSIONER, PALAKKAD. P3: COPY OF THE TODDY TRANSPORT PERMIT NO.P5-5942/99 DTD. 29/09/1999 ISSUED BY THE ASST.EXCISE COMMISSIONER, PALAKKAD. P4: COPY OF THE ORDER NO.33/API/01/AC(X) DTD. 15/07/2003 PASSED BY THE 2ND RESPONDENT. P5: COPY OF THE ORDER NO.K3-1163/2000 PASSED BY THE 1ST RESPONDENT. P6: COPY OF THE ORDER NO.21/APL/03/AC(X) DTD. 25/06/2003 PASSED BY THE 2ND RESPONDENT. P7: COPY OF THE ORDER NO.XA4-20067/03 DTD. 9/10/2003 PASSED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.40574 OF 2003 ------------------------------------------- Dated this the 8th day of June, 2009 JUDGMENT 1. A vehicle belonging to the Petitioner was intercepted while transporting toddy. It was found that the total quantity of toddy transported was in excess of the permit referable to that lorry. The petitioner has a contention that owing to break down of another vehicle, toddy from that vehicle was shifted to the vehicle in question and on interception, three permits were shown, however, that the excise authorities did not act upon those permits. The competent authority ordered confiscation of the vehicle and it has been confirmed in Revision. 2. The petitioner states that at the worst, the offence disclosed as having been committed could be referred only to Section 56 (b) of the Abkari Act, which provision alone has been invoked to accuse the petitioner. So much so, it is pointed out that an amount of discretion should be treated to be vested with the confiscating authority and the revisional authority to decide as WPC.40574/03 Page numbers to whether, in a given case, confiscation is necessary or not. The use of the word “may” in the provision empowering confiscation is pointed out. 3. The question is whether the commission of an offence or breach of any condition of the permit/licence has been established is sine qua non for fastening any liability by way of confiscation, which procedure is essentially penal. Assuming that those findings are against the petitioner, it does not suit the statutory provision in hand to say that the authority is bereft of jurisdiction to decide as to whether in the given case, an order of confiscation should necessarily follow or whether the owner of the vehicle could be visited with any other consequence. This essentially is a matter within the scope of the statutory authority or officers exercising power under the statute. Therefore, on the facts of the case in hand, it appears that the question as to whether the vehicle should necessarily be confiscated has not been addressed, taking into consideration the totality of the facts and also by taking stock WPC.40574/03 Page numbers of the fact as to whether it is a case where the petitioner could be mulcted with lesser liability . 4.For the aforesaid reasons, the revisional order passed by the Excise Commissioner, Ext.P7, is set aside to enable the petitioner to place further submissions before the Excise Commissioner and to plead for lesser consequences. Let a decision be taken by the Excise Commissioner de novo in accordance with what is stated above within a period of six months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Until that, the operation of the decision impugned before the Excise Commissioner will stand stayed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.9/6.