IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 WP(C).No. 28367 of 2004(B) -------------------------- PETITIONER: --------------- JOY K.K., S/O. KOCHAPPAN, AGED 50 YEARS, KAVUNGAL HOUSE, P.O. ANCHERY, DHANYA NAGAR, THRISSUR. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF EXCISE, SECRETARIATE, TRIVANDRUM. 2. THE EXCISE COMMISSIONER, OFFICE OF THE COMMISSIONER OF EXCISE, TRIVANDRUM. 3. THE ADDL. COMMISSIONER OF EXCISE, TRIVANDRUM. 4. THE ASST. EXCISE COMMISSIONER, TRICHUR. BY GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.28367/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE R.C.BOOK OF THE AUTORICKSHAW BEARING REG.NO.KL8/V 830. EXT.P2: TRUE COPY OF THE JUDGMENT IN OP NO.3969/2003 DATED 4/2/2003 OF THIS HON'BLE COURT. EXT.P3: TRUE COPY OF THE ORDER DATED 29.10.2003 ISSUED BY THE 4TH RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER DATED 7.5.2004 ISSUED BY THE 3RD RESPONDENT. EXT.P5: TRUE COPY OF the ORDER DATED 6.8.2004 OF THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE NOTICE DATED 26.8.2004 ISSUED BY THE 4TH RESPONDENT. EXT.P7: TRUE COPY OF THE ORDER DATED 27/11/2000 ISSUED BY THE 4TH RESPONDENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 28367 OF 2004 B ==================== Dated this the 18th day of August, 2008 J U D G M E N T Petitioner is the registered owner of an autorickshaw bearing Regn.No.KL-8/V.830. Sub Inspector of Police, East Police Station, Trichur and party seized the autorickshaw on 27/11/2002 along with 358.5 litres of Indian made foreign liquor in 478 bottles. 2. Following the seizure, confiscation proceedings were initiated. During the pendency of the proceedings, it would appear that based on Ext.P2 judgment of this court, the vehicle was released to the petitioner on a temporary basis and he is still continuing to be in possession. Proceedings continued and that resulted in Ext.P3 order passed by the 4th respondent ordering confiscation of the vehicle. 3. The petitioner filed an appeal to the 3rd respondent and that was rejected by Ext.P4. Further, he filed a revision to the 2nd respondent and that was also rejected by Ext.P5. Subsequently, petitioner was directed to surrender the vehicle by Ext.P6 and at that stage, writ petition has been filed. 4. Learned counsel for the petitioner contends that he is entitled WPC 28367/04 :2 : to the benefit of Section 67C (2) of the Abkari Act as the transportation of the foreign liquor was without his knowledge or connivance and that he had taken all reasonable and necessary precautions against such use. 5. I have heard the learned Government Pleader also. 6. The fact of seizure and the quantity transported are not in dispute. The only question is whether the petitioner being the registered owner of the autorickshaw is entitled to the benefit of Section 67C (2) of the Act. A reading of the aforesaid provision of the Act shows that the burden is on the petitioner to have proved that the transportation of the contraband was without his knowledge or connivance and that he had taken all reasonable and necessary precautions against the same. 7. In this case, a reading of the impugned orders would show that the orders were passed with notice to the petitioner and that he was afforded opportunities to prove his innocence. It is also evident from the statement filed on behalf of the authorised officer that the petitioner not only did not cross examine the witnesses examined against him, but also did not produce any evidence on his behalf. Therefore, the case was decided against him on the materials that were produced by the Department. From this, it is thus evident that the petitioner did not WPC 28367/04 :3 : discharge the burden of proof that is cast on him in terms of Section 67C (2) of the Act. I am satisfied that the petitioner has not proved the requirements of the aforesaid section and therefore, he is not eligible for the benefit thereof. 8. It is contended that a criminal case arising out of the seizure is pending trial and therefore it is premature to order confiscation of the vehicle. I am not in a position to agree with the counsel. A reading of Section 67B shows that if a vehicle is involved in the transportation of contraband liquor, it is liable for seizure even if a criminal case has not been registered or charge sheeted against the accused. Therefore, the pendency of a criminal case is no bar as against the officers from proceeding against the offender for confiscation. In view of this, I am not satisfied that the petitioner has made out a case for interference. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp