IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 OP.No. 33015 of 2001(E) ----------------------- PETITIONER(S): --------------- N.KAMALAM, W/O.NEELAKRISHNAN, 23-D, SALEM ROAD, RASIPURAM, NAMAKKAL, TAMILNADU. BY ADV. SRI.T.V.GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE COMMISSIONER AND SECRETARY TO THE EXCISE DEPARTMENT, TRIVANDRUM. 2. ASST. EXCISE COMMISSIONER, ERNAKULAM. 3. ADDL. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 4. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SHRI.M.R.SABU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, ALONG WITH OP NO. 32673 OF 2001 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.33015/01. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE SALE AGREEMENT. P2. COPY OF THE DELIVERY NOTE. P3. COPY OF THE LETTER BY THE RTO NAMAKKAL. P3A. COPY OF THE ENGLISH TRANSLATION OF P3. P4. COPY OF THE RECEIPT FROM POST OFFICE. P5. COPY OF THE ORDER DTD.6.6.00 BY ASS. EXCISE COMMISSIONER, ERNAKULAM. P6. COPY OF THE ORDER DTD.20.1.2001 BY THE ADDL. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. P7. COPY OF THE ORDER DTD.4.10.01 BY EXCISE COMMISSIONER, THIRUVANATHAPURAM. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.Nos.33015/2001 & 27613/2002 ================== Dated this the 14th day of October, 2008 J U D G M E N T The petitioner in O.P.No.33015/2001 is the registered owner of a lorry which has been confiscated under the Abkari Act for using the same for commission of an offence under the Abkari Act. O.P.No.27613/2002 is filed by an alleged purchaser of the vehicle from the registered owner. They are challenging Exts.P5, P6 and P7 orders in O.P.No.33015/2001 which are original, appellate and revisional orders. The lorry in question was seized by the Sales Tax authorities on having been found transporting 311 cases of Indian Made Foreign Liquor. A crime was registered and the vehicle was produced before the JFCM Court No.II, Muvattupuzha, by the Police. Subsequently it was handed over to the Assistant Excise Commissioner, Ernakulam, by the Police as per direction in the judgment dated 29.9.1998 in O.P.No.18447/98 filed by the registered owner of the vehicle. The registered owner obtained judgment dated 11.11.1998 in O.P.No.21103/98 from this Court for the temporary release of the vehicle on executing a bank guarantee for an amount equal to o.p.33015/01 & cc. 2 the market value of the vehicle to be assessed by the Mechanical Engineer (Excise), which was assessed as Rs.1,30,000/-. Since the facts disclosed commission of an offence punishable under Section 55(a) of the Abkari Act using the lorry, proceedings were initiated under Section 65 of the Abkari Act for confiscating the same. A show cause notice was issued to the registered owner of the vehicle directing her to show cause as to why the vehicle should not be confiscated to the Government. Instead of filing a reply to the same, she requested temporary release of the vehicle as per direction in O.P.No.21103/1998. Thereafter, the vehicle was released to the petitioner in O.P.No.27613/2002 on the strength of the power of attorney executed by the registered owner on execution of a bank guarantee for Rs.1,30,000/-. Since the registered owner did not file any objection to the show cause notice, confiscation proceedings were continued, resulting in Ext.P5 order of the Assistant Excise Commissioner confiscating the vehicle. The registered owner of the vehicle filed an appeal before the Additional Excise Commissioner, Thiruvananthapuram, which was also rejected by Ext.P6 order. The very same registered owner filed revision petition before the Excise o.p.33015/01 & cc. 3 Commissioner Thiruvananthapuram, which was also rejected by Ext.P7 order. Exts.P5, P6 and P7 orders are under challenge before me. 2. The contention of the registered owner appears to be that she had already sold the vehicle to the petitioner in the other original petition and therefore, she is not responsible for the illegal transport of the liquor in the lorry. The petitioner in O.P.No. 27613/2002, who is the alleged purchaser of the vehicle, raised the contention that the proceedings are bad for want of notice to him who is the real owner of the vehicle. According to him, the Act contemplated issue of a notice to the owner of the vehicle, which has not been done in this case and therefore, the entire proceedings are vitiated. 3. A counter affidavit has been filed by the 4th respondent in O.P.No. 33015/2001 supporting the impugned order. A statement has been filed by the 3rd respondent in O.P.No. 33015/2001 to the effect that even after confiscation proceedings, the permit of the lorry was continued to be renewed in the name of the petitioner in O.P.No.33015/2001. 4. I have considered the rival contentions in detail. o.p.33015/01 & cc. 4 5. First I shall deal with the contentions of the petitioner in O.P.No. 27613/2002. He challenges the entire proceedings for want of notice to him in the confiscation proceedings. Therefore, the question arising for consideration is as to whether he is entitled to a notice. Admittedly, he is not the registered owner of the vehicle. The registered owner of the vehicle is the petitioner in O.P.No.33015/2001. Admittedly she was issued with a show cause notice. She did not file any reply to the show cause notice. There is nothing on record to show that the registered owner at any time intimated the Assistant Excise Commissioner that she had sold the vehicle to the petitioner in O.P.No. 27613/2002. As such, there cannot be any duty on the part of the Assistant Excise Commissioner to issue notice to the petitioner in O.P.No.27613/2002. In any event, since the registered owner was given a show cause notice, it was perfectly open to her to submit before the Assistant Excise Commissioner that the alleged purchaser of the vehicle also may beard in the matter. She has not chosen to do so. On the other hand, the registered owner continued to fight the case on merits by filing an appeal and a revision. Further, admittedly the registered owner filed two writ o.p.33015/01 & cc. 5 petitions before this Court in respect of the same subject matter and even obtained an order directing interim custody of the vehicle. Pursuant to that order, instead of taking interim custody by herself, she executed a power of attorney in favour of the alleged purchaser who took delivery of the vehicle on the strength of that power of attorney on executing a bank guarantee. Therefore, the petitioner in O.P.No. 27613/2002 was perfectly aware of the proceedings before the Assistant Excise Commissioner. If he had a case that he was the owner of the vehicle, nothing prevented him from getting himself impleaded before the Assistant Commissioner in the proceedings seeking to adduce evidence in support of his case, which he has not chosen to do. Therefore, at the instance of such a person I am not inclined to entertain a contention of illegality in the impugned orders for want of notice to him. 6. Now the only other question is as to whether the confiscation is proper or not. It cannot now be disputed that the lorry was transporting 311 cases of Indian made foreign liquor unauthorizedly, thus committing an offence under the Abkari Act. Therefore, the vehicle was liable to be confiscated unless o.p.33015/01 & cc. 6 the owner and the person in charge of the vehicle prove that he/she had no knowledge of the commission of the offence and each of them had taken all reasonable and necessary precautions against illegal use of the vehicle. Under Section 67C(2) of the Abkari Act the onus of proving that unauthorised transport of liquor was without knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the vehicle and each of them had taken all reasonable and necessary precautions against such use, is clearly on the petitioner herein. No attempt whatsoever has been made in that regard by the petitioner in this original petition. That being so, I do not find any infirmity whatsoever in the impugned orders. Therefore, there is no merit in the original petitions and accordingly the same are dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.33015/01 & cc. 7 S.SIRI JAGAN, J. =============== O.P.Nos.33015/2001(E) & 27613/2002(K) =============== J U D G M E N T 14th October, 2008 o.p.33015/01 & cc. 8