IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 WP(C).No. 15910 of 2011(K) ---------------------------------- PETITIONER(S): ------------------- SAJEEV KUMAR.M.S, AGED 45 YEARS, S/O.SREEDHARAN,MAMPALATH HOUSE,M.L.ROAD, KOTTAYAM. BY SRI.C.C.THOMAS, SENIOR ADVOCATE ADVS. SRI.NIREESH MATHEW SRI.M.G.KARTHIKEYAN RESPONDENT(S): --------------------- 1. THE EXCISE INSPECTOR,EXCISE RANGE OFFICE THRISSUR - 680 001. 2. THE DEPUTY EXCISE COMMISSIONER, THRISSUR - 680 001. 3. THE ADDL.EXCISE COMMISSINER,EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM-695 001. 4. THE COMMISSIONER OF EXCISE, EXCISE HEADQUARTERS,NANDAVANAM, THIRUVANANTHAPURAM - 695 001. R1 TO R4 BY GOVT. PLEADER SRI.M.MUHAMMED SHAFI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 15910/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SHOW CAUSE NOTICE SENT TO THE PETITIONER BY THE 2ND RESPONDENT DATED 23/10/2010. P2: COPY OF THE REPLY TO SHOW CAUSE NOTICE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 20/02/2010. P3: COPY OF THE EXPLANATION DATED 20/02/2010 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE DRIVER OF THE VEHICLE, SRI.SAJEEV. P4: COPY OF THE EXPLANATION DATED 20/02/2010 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE CLEANER OF THE VEHICLE, SRI.SURENDRAN. P5: COPY OF THE ORDER NO.R8A-4079/09 DATED 03/05/2010 PASSED BY THE 2ND RESPONDENT. P6: COPY OF THE ORDER NO.82/APL/2010 AC(X) DATED 14/12/2010 PASSED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.15910 OF 2011 -------------------------------------------- Dated this the 27th day of June, 2011 JUDGMENT The petitioner who is the registered owner of a mini lorry bearing Reg.No.KL-5/Z-8313 filed this Writ Petition challenging Exts.P5 and P6 orders respectively passed by respondents 2 and 3 confiscating the said vehicle. 2. The said vehicle involved in an abkari offence. Crime No.37/2009 was registered under Section 56(b) of the Abkari Act based on the allegation that at about 12.45 p.m on 13.7.2009, the said vehicle was transporting 220 litres of excess toddy than the permissible quantity of toddy under the transport permit issued. In fact, the quantity of the toddy in the said vehicle was found as 1750 litres. The excise officials intercepted the vehicle at Kumbazha Check Post. Thereafter, it was produced before the second respondent for initiating confiscation proceedings under Section 67B of the Abkari Act. Later, the vehicle was temporarily released to the petitioner on his remitting an amount of Rs.3,75,000/- in the Treasury Savings Account. The petitioner was served a show cause notice in the said proceedings and after considering Ext.P1 W.P.(C) NO.15910/2011 2 reply submitted by him in response to the said show cause notice and after hearing the petitioner, Ext.P5 order was passed. In fact, the driver and cleaner of the said vehicle who were arrested with the contraband articles were examined in the confiscation proceedings. The statements given by the driver and cleaner of the vehicle are produced in this Writ Petition as Exts.P3 and P4 respectively. In essence, for the alleged offence, the petitioner put the blame on the driver and cleaner of the vehicle and at the same time, the driver and cleaner feign ignorance about the offence. When, in a proceedings under Section 66 of the Abkari Act, an owner of a vehicle is issued with a notice, he has to satisfy the authority regarding the steps that he had taken to discharge the burden in terms of the provisions under Section 67C. There is nothing on record to show that the petitioner has satisfactorily discharged the said burden. However, the contention of the petitioner is that in terms of the provisions under Section 67B of the Abkari Act, it is not mandatory that under all circumstances, the vehicle involved in transportation of contraband articles should be confiscated. According to the petitioner, a mere reading of the provisions under 67B of the Abkari Act would reveal that the authorities while passing orders in a confiscation proceedings had to exercise discretionary jurisdiction. The contention is that in the absence of specific reasons for confiscating the vehicle, it cannot W.P.(C) NO.15910/2011 3 be said that the discretion was rightly exercised. True that in all cases wherein a vehicle is involved in transportation of contraband articles, it is not mandatory that the proceedings should culminate in confiscation of the vehicle. But, at the same time, its outcome would depend upon the success on the part of the concerned party viz., the owner to discharge the burden under Section 67C of the Abkari Act. As already noticed hereinbefore, the petitioner put the blame on the driver and cleaner of the vehicle and at the same time, the driver and cleaner feign ignorance about the offence. At the same time, nobody disputed the fact that vehicle involved in transportation of contraband articles. In the circumstances, no one can presume that the owner of the vehicle is absolutely ignorant about the offence. When once it is found that the owner of the vehicle had failed to prove that he had taken all precautionary measures to abate occurrence of such offence in terms of the provisions under Section 67C, the authority while exercising the jurisdiction can issue an order to confiscate the vehicle to the Government. The contention of the petitioner is that Exts.P5 and P6 would not reflect the true application of mind and, as such, according to the petitioner, in the absence of such reasons in Exts.P5 and P6, it cannot be said that respondents 2 and 3 have exercised their discretion rightly and fairly. When an authority is vested with a discretionary power, true that the said authority W.P.(C) NO.15910/2011 4 cannot pass an order merely based on his personal opinion. He has to exercise that power taking into account the relevant provisions. In other words, exercising a power in terms of the provisions could be construed as the proper exercise of the discretion. Once the petitioner failed to take sufficient precautions against the misuse of the vehicle or failed to convince the authority that the offence occurred despite such precautionary steps taken by the petitioner, the authorities considering the question of confiscation of the vehicle can pass an order of confiscation. According to the petitioner, considering the fact that the offence is a minor one, there is no reason for respondents 2 and 3 to pass orders confiscating the vehicle. However, Ext.P6 would reveal that the appellate authority ordered to release the vehicle to the registered owner provided he is willing to remit the market value of the said vehicle fixed by the Mechanical Engineer in compliance with the provisions under Rule 4(1)(a) and (b) of the Kerala Abkari (Disposal of Confiscated Articles) Rules,1996. In the circumstances, I find no illegality in Exts.P5 and P6 orders. There is no merit in the Writ Petition and, accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.15910/2011 5 C.T. RAVIKUMAR, J. Once the petitioner fails to take sufficient measures to avoid misuse of the vehicle and convince the authority that he offence occurred despite such action taken, the authorities considering the question of confiscation of the vehicle and can pass an order confiscating the vehicle merely because W.P.(C) NO.15910/2011 6 JUDGMENT September, 2010