IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 WP(C).No. 31915 of 2011(L) --------------------------------------- CRIME NO.66/2011 OF EXCISE CIRCLE, KASARAGOD. ................ PETITIONER(S): ----------------------- HARSH. A, S/O.KONGARAPPA, 9/26 OF MULIYAR G.P, P.O.MULIYAR, KASARAGOD. BY ADV. SRI.I.V.PRAMOD, SRI.B.VINOD. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY EXCISE COMMISSIONER, THIRUVANANTHAPURAM-695 001. 2. CIRCLE INSPECTOR OF EXCISE, KASARAGOD CIRCLE, KASARAGOD RANGE, KASARAGOD, PIN-671 001. 3. ASST. EXCISE COMMISSIONER, CIVIL STATION, VIDYANAGAR P.O., KASARGOD, PIN-671 001. 4. DEPUTY EXCISE COMMISSIONER, CIVIL STATION, VIDYANAGAR P.O., KASARGOD, PIN-671 001. BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 31915 of 2011(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE CRIME AND OCCURRENCE REPORT NO.66/2011OF KASARAGOD EXCISE CIRCLE DATED 12/09/2011. EXT.P2 COPY OF THE REGISTRATION CERTIFICATE OF KL-14/K 2322. EXT.P3 COPY OF THE REPRESENTATION SUBMITTED TO THE 3RD RESPONDENT DATED 19/11/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs N.K.BALAKRISHNAN, J. -------------------------------- W.P.(C). No.31915 of 2011 ------------------------------------ Dated this the 2nd day of December 2011 J U D G M E N T Petitioner is the owner and driver of the autorickshaw bearing Reg.No.KL-14/K 2322. The petitioner contends that while he was driving his autorickshaw and when it reached Anangoor, one person wanted to board the autorickshaw and so the autorickshaw was stopped and the passenger boarded the autorickshaw. He was having a big shopper with him containing some articles. When the autorickshaw was proceeded, it was intercepted by the Excise Inspector. The big shopper was found to contain 5.76 litres of Indian Made Foreign Liquor (32 bottles of 180ml each). Learned counsel for the petitioner submits that when a passenger wants to board the autorickshaw and shows signals for that purpose, the autorickshaw driver would stop the autorickshaw to allow a passenger to get in and he cannot examine the bag or baggages of the person who enters the W.P.(C). No.31915 of 2011 -: 2 :- autorickshaw and so in the big shopper carried by the passenger IMFL bottles were seen is not a reason to say that the petitioner who was only the driver of the autorickshaw can be made liable nor can it be said that his autorickshaw is liable to be confiscated. It is not a case where the autorickshaw was used for transporting the liquor in violation of the provisions of Abkari Act. 2. There is another line of argument also; that even if it is accepted that 5.76 litres of IMFL was seized, since there were two persons, the quantity possessed by each of them would be less than 3 litres namely less than the permissible limit and so, on that ground also, the offence alleged by the 2nd respondent cannot be sustained. If so, proceedings for confiscation cannot be sustained. 3. In the light of the grounds raised by the petitioner which is seen to be weighty, I find that the request for release of the autorickshaw made by the petitioner has to be allowed. It is submitted on behalf of the prosecution that W.P.(C). No.31915 of 2011 -: 3 :- autorickshaw is now before the 4th respondent. Hence, the 4th respondent will release the autorickshaw to the petitioner on his executing a bond for Rs.50,000/- with two solvent sureties each for the like amount. Petitioner shall not transfer possession of the autorickshaw without getting permission from the jurisdictional Magistrate. Petitioner shall also produce the autorickshaw before the learned Magistrate or the authorised officer as and when directed. 4. If the petitioner files an application for composition before the 4th respondent, that also will be duly considered by the 4th respondent in the light of what has been stated above. Other grounds raised in this petition are left open to be considered as and when raised in appropriate proceedings at the appropriate stage. This writ petition is disposed of as above. N.K.BALAKRISHNAN, JUDGE. Jvt