IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 WA.No. 102 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.16802/2008 Dated 02/12/2008 .................... APPELLANT/ PETITIONER IN WPC ------------------- BIJU MATHEW, S/O.MATHEW, KOLLAPPILLIL HOUSE, KUTHIRACHIRA, PUNALUR, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENTS/ RESPONDENTS IN THE WPC ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, KERALA STATE PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM. 3. SRI.K.MOHANAN, ASSISTANT EXCISE COMMISSIONER, THODUPUZHA, IDUKKI. 4. THE SUB INSPECTOR OF POLICE, SANTHANPARA POLICE STATION, IDUKKI DISTRICT. 5. THE SUB REGIONAL TRANSPORT OFFICER, PERUMBAVOOR, ERNAKULAM. 6. SRI.BIJU PAUL, THURUTHIYIL HOUSE, KOMBANADU P.O., PERUMBAVOOR, ERNAKULAM. GOVERNMENT PLEADER, SRI.NOBLE MATHEW THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------- W.A. No.102 OF 2009 --------------------------------- Dated this the 16th day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the writ petitioner. The respondents were the respondents in the writ petition. 2. The brief facts of the case are the following: The appellant purchased a 2001 Model Toyota Qualis vehicle bearing Registration No.KL-5L/2236 from one Mr.Sasikumar, as per Ext.P1 sale agreement dated 17.11.2006. There was some delay in getting the Registration Certificate transferred in his favour. Finally, it was transferred to the name of the appellant by Ext.P3 proceedings dated 13.3.2007. Ext.P2 contains the R.C. particulars of the vehicle. It would show that the vehicle was an omnibus for private use. The vehicle was found carrying 1000 litres of rectified spirit, by the police, on 19.12.2006. The appellant on coming to know of the W.A.No.102/2009 2 seizure of the vehicle from the policemen sent by the Deputy Superintendent of Police, Munnar, moved this Court for interim custody of the vehicle by filing W.P.(C) No.13406/2007. In the said writ petition this Court passed Ext.P5 interim order dated 17.4.2007 directing the 2nd respondent therein to release the vehicle to the appellant on his furnishing bank guarantee for its value. Since the appellant was not the registered owner of the vehicle, the respondents therein moved a Review Petition and this Court, as per Ext.P6 order, kept in abeyance Ext.P5 interim order. Finally, the writ petition was disposed of by Ext.P7 judgment dated 21.2.2008, directing the 2nd respondent, Assistant Excise Commissioner, Thodupuzha, to pass final orders in the confiscation proceedings. It was also ordered that it would be open to the petitioner/appellant to seek interim custody of the vehicle before the 2nd respondent. 3. But, in the meantime, the Assistant Excise Commissioner has already confiscated the vehicle by Ext.P8 order dated 2.7.2007. The original registered owner, Mr.Sasikumar, filed an appeal before the appellate authority against Ext.P8. The appellate authority dismissed the appeal by W.A.No.102/2009 3 Ext.P9 proceedings dated 9.11.2007. On coming to know of the said facts, the appellant moved a Contempt Application before the learned Single Judge. The said Contempt Application was closed without prejudice to the right of the appellant to challenge the aforementioned proceedings. So, the writ petition was filed challenging Ext P8 and all further proceedings including sale of the vehicle. 4. The main point canvassed before the learned Single Judge was that the confiscation order has been passed in violation of principles of natural justice. The appellant was not given an opportunity of being heard before the impugned order, confiscating the vehicle, was passed. The learned Single Judge held that though the petitioner/appellant was aware of the confiscation proceedings, he did not appear before the Assistant Excise Commissioner or discharge his burden under Section 67C of the Abkari Act. 30 cans of rectified spirit containing 35 litres each were seized from the vehicle in question. So, it was found that the vehicle was used for committing an abkari offence. In the absence of any evidence to show that the offence was committed without his knowledge, the appellant could not W.A.No.102/2009 4 succeed. The learned Single Judge further held that there was considerable delay in challenging Exts.P8 and P9 orders. For the above reasons, the learned Single Judge dismissed the writ petition. Challenging the above judgment of the learned Single Judge, this Writ Appeal is filed. 5. We heard the learned counsel, Mr.B.Mohanlal, for the appellant and also Sri.Noble Mathew, learned senior Government Pleader, for the respondents. The vehicle was used for committing an abkari offence by transporting 1000 litres of rectified spirit in it. Therefore, it cannot be said that the transportation of rectified spirit was done without the knowledge of the driver of the vehicle. If it is a public transport vehicle and if some small quantity of contraband item is carried in it, the driver may plead ignorance. But, the vehicle involved is an omnibus for private use. So, without the knowledge of the driver, 1000 litres of rectified spirit cannot be carried in it. After the execution of Ext.P1 sale agreement dated 17.11.2006, the vehicle was being driven by the appellant's driver. For escaping confiscation proceedings, the petitioner/appellant should prove the ingredients of sub-section (2) of Section 67C of the Abkari W.A.No.102/2009 5 Act. The said sub-section reads as follows: “(2) Without prejudice to the provisions of sub-section(1), no order confiscating any animal, cart, vessel or other conveyance shall be made under section 67B if the owner of the animal, cart, vessel or other conveyance proves to the satisfaction of the authorised officer that it was used in carrying the liquor or intoxicating drug or the material, still, utensil, implement or apparatus or the receptacle, package or covering without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.” (emphasis supplied) 5. Going by the above provision, the appellant must prove that the transportation of rectified spirit was done without the knowledge or connivance of himself, his agent or the person in charge of the vehicle. The driver is the person in charge of the vehicle. On the facts of this case, the appellant cannot say that the spirit was transported without the knowledge of his driver. The appellant does not have any such case either in the Writ Petition or in the Writ Appeal. So, even if, for the alleged W.A.No.102/2009 6 violation of the principles of natural justice, the matter is remitted for fresh consideration by the Assistant Excise Commissioner, it is going to be only an empty formality and waste of time for everyone including the appellant. When a decision is taken on a point, objectively, based on materials and evidence by a quasi-judicial Tribunal, the courts are reluctant to set aside the same for the technical plea of violation of natural justice unless prejudice is shown. If the order passed is a subjective order like choice of penalty etc., a hearing of the delinquent may change the heart of the decision maker. See the following passage in Administrative Law by H.W.R.Wade and C.F.Forsyth: “Judges are naturally inclined to use their discretion when a plea of breach of natural justice is used as the last refuge of a claimant with a bad case. But that should not be allowed to weaken the basic principle that fair procedure comes first, and that it is only after hearing both sides that the merits can be properly considered. A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. W.A.No.102/2009 7 But in the case of a discretionary administrative decision, such as the dismissal of a teacher or the expulsion of a student, hearing his case will often soften the heart of the authority and alter their decision, even though it is clear from the outset that punitive action would be justified. This is the essence of good and considerate administration, and the law should take care to preserve it.” (emphasis supplied) 6. So, the violation of natural justice itself is sufficient for interfering with a discretionary administrative order. In this case, the decision concerned being an objective decision taken objectionably, based on the materials before the Assistant Excise Commissioner, no purpose will be served by remitting the matter, as the appellant does not have a case that the transportation of rectified spirit was made without the knowledge of his driver. In the result, we find no merit in the appeal and accordingly it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps