IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 31445 of 2008(R) -------------------------- PETITIONER(S): --------------- 1. SUNIL, AGED 32 YEARS, S/O. LEELA, KANDATHILPARAMBU HOUSE, THURUTHIPURAM DESOM, MUTHAKUNNAM NAGAR P.O., MUTHAKUNNAM, ERNAKULAM DISTRICT. 2. M/S CHOLAMANDALAM DBS FINANCE LTD., KOLLAM BRANCH, KURUMPELIL AVENUE, POLYATHODU, KOLLAM REPRESENTED BY ITS ASSOCIATE LEGAL CORDINATOR AND POWER OF ATTORNEY HOLDER, NAVEEN T,P, S/O. LATE T.P. NARAYANAN BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT(S): --------------- 1. THE SUB INSPECTOR OF POLICE, KILIKOLLOOR POLICE STATION, KOLLAM. 2. THE ASST. EXCISE COMMISSIONER, KOLLAM. 3. THE ADDL. EXCISE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 4. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.31445 of 2008 ================== Dated this the 27th day of March, 2009 J U D G M E N T The petitioner is the registered owner of a vehicle which has been seized on allegation of commission of an abkari offence, which resulted in Ext.P4 order of confiscation. Against the same, the petitioner filed an appeal before the Additional Commissioner of Excise, which was also dismissed, by Ext.P6. The petitioner is challenging Exts.P4 and P6 orders in this writ petition. 2. The petitioner's contention is that the vehicle did not contain any spirit at the time of seizure as alleged by the respondents. According to the petitioner, the vehicle was seized on 11.3.2007 and the driver was arrested. At the time of seizure what was recovered from the car was currency notes worth Rs.56,400/- and no contraband liquor was found in the car. The vehicle was in the custody of the police for four days and it is thereafter, that the police have come up with a case that three liters of of spirit had been recovered from a hidden place behind the rear seat of the vehicle. According to the petitioner, the version of the respondents is totally unbelievable. The counsel for the petitioner would submit that the police have planted spirit in the vehicle so as to make out a case against the petitioner, since they could not obtain any evidence of any illegal activity. The w.p.c.31445/08 2 petitioner, therefore, submits that Exts.P4 and P6 are liable to be quashed. 3. I have heard both sides. 4. It is an undisputed fact that the car was detained because at the time of inspection, the registration number of the car in front was shown as TN-37AE/7866 and at the rear, it was shown as KL- 07AN-581. From the dash of the car, currency notes worth Rs.56,400/- was seized. Two persons were arrested. From Ext.P4 it is seen that on interrogation it was revealed by the driver of the vehicle that the vehicle was used for illegal transportation of spirit with fake registration number. It was on the basis of the statement of the driver the vehicle was again searched in the presence of the driver and three liters of spirit in two bottles of 1.5 ltrs. each was recovered from a hidden place in the rear seat. If the petitioner had a case that this is a foisted case, then the simplest of simple thing the petitioner could have done in the confiscation proceedings was to offer himself as a witness to depose that it was a foisted case. The petitioner has not chosen to do so. In fact immediately after the receipt of notice from the Assistant Excise Commissioner regarding confiscation proceedings, the petitioner had filed Ext.P3 affidavit, in which he had totally disowned the vehicle itself. In that affidavit he had absolutely no case whatsoever that it is a foisted case. I am of opinion that from the w.p.c.31445/08 3 admitted fact that at the time of seizure the vehicle had one registration number in the front and another in the back would go a long way in disproving the petitioner's contention. Under Section 67C of the Abkari Act, the onus of proving that the vehicle was not put to illegal use and he had taken due care and caution against such use is squarely on the owner and driver of the vehicle. The petitioner not having chosen to discharge that burden by adducing evidence, I do not think that the petitioner can now raise a contention that the case was foisted against him. In the above circumstances, I do not find any merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge