IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 21755 of 2008(M) -------------------------- PETITIONER(S): ------------------- DEVAKI, W/O.AITHU, RESIDING AT ELAKKIMOOLA, NETTAINGE VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): -------------------- 1. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 2. ADDITIONAL COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. ASSISTANT COMMISSIONER OF EXICSE, KASARGOD. GOVERNMENT PLEADER SRI.V.MANU FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21755/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE SHOW CAUSE NOTICE. EXT.P2: TRUE COPY OF THE STATEMENT DATED 10.4.2006 IN RESPONSE TO THE SHOW CAUSE NOTICE. EXT.P3: TRUE COPY OF THE JUDGMENT DATED 4.4.2002 INOP NO.9039/02 OF THIS HON'BLE COURT. EXT.P4: TRUE COPY OF THE ORDER DATED 24.5.2006. EXT.P5: TRUE COPY OF THE APPEAL MEMORANDUM. EXT.P6: TRUE COPY OF THE NOTES OF ARGUMENT DATED 22.8.2006. EXT.P7: TRUE COPY OF THE ORDER OF THE APPELLATE AUTHORITY. EXT.P8: TRUE COPY OF THE JUDGMENT 30/11/2007 IN SC NO.232/2004. EXT.P9: TRUE COPY OF THE PETITION DT 4.7.2008. EXT.P10: TRUE COPY OF THE NOTICE DT 25.6.2008. EXT.P11: TRUE COPY OF THE REPLY DT 4.7.2008. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 21755 OF 2008 (M) ===================== Dated this the 21st day of January, 2010 J U D G M E N T Petitioner's husband late Sri.Aithu was the registered owner of a jeep bearing Regn.No.KL-14/B 7506. On 29/1/2002, the Sub Inspector of Police, Adhur, seized the jeep and recovered 40 bottles (375 ml) of Indian made foreign liquor meant for sale in Karnataka State. Meanwhile, her husband expired and during the pendency of the proceedings under Section 67 of the Abkari Act, petitioner sought temporary release of the vehicle. Accordingly, the value of the vehicle was assessed and the petitioner furnished bank guarantee for Rs.1,40,000/- and the vehicle was released. The petitioner says that the vehicle is still in her custody and that the Bank guarantee is still kept valid. 2. Ext.P1 show cause notice was issued to the petitioner calling upon her to show cause to the 3rd respondent as to why the vehicle shall not be confiscated in terms of the provisions contained in Section 67 of the Abkari Act. 3. From the counter affidavit, it is seen that though Ext.P1 was served on the petitioner on 6/4/2006, she did not appear WPC 21755/08 :2 : before the authorized officer. Subsequently, she submitted Ext.P2, contending that criminal case registered against her was a false one. The enquiry continued and Ext.P4 order was passed by the authorized officer ordering confiscation of the vehicle. Against Ext.P4, petitioner filed appeal before the Additional Commissioner of Excise. From the counter affidavit, it is seen that even notice of hearing was issued. On that occasion again, petitioner did not appear. Additional Commissioner concluded the proceedings and finally, rejected the appeal by Ext.P7. It is challenging Exts.P4 and P7 the writ petition is filed. 4. Counsel for the petitioner submits that the proceedings held against the vehicle resulting in Ext.P4 order and the disposal of the appeal filed by the petitioner are not legal and needs interference. It is also his contention that the grounds on which Ext.P1 proceedings have been initiated were not informed to her and therefore, she was prejudiced in her defence. Counsel also made reference to the judgment of this Court in Sasidharan v. State of Kerala (1980 KLT 671). 5. Section 67B of the Abkari Act provides for confiscation of vehicles. This section provides that where any liquor is found or WPC 21755/08 :3 : any vehicle is used for carrying contraband liquor, the vehicle can be seized by the Abkari Officer. Sub Section (2) provides that where an authorized officer seizes and detains any vehicle, he has to follow the procedure prescribed therein and if he is satisfied that offence under the Act has been committed by means of that vehicle, the vehicle is liable for confiscation irrespective of whether or not a prosecution has been initiated against the offenders. Section 67C provides for issue of show cause notice and opportunity of hearing to the offender. 6. In this case, notice was given to the petitioner, a copy of which is Ext.P1, which talks about the recovery of the contraband liquor. Enquiry was conducted, petitioner did not adduce any evidence in the enquiry and finally Ext.P4 order was passed. Ext.P4 order shows that the authorized officer considered the entire case and finally was satisfied that offence under the Abkari Act was committed. It is on that basis, vehicle is ordered to be confiscated. In the appeal filed by the petitioner, Additional Commissioner of Excise also has examined the matter in full, despite the fact that the petitioner did not appear for the personal hearing. Ext.P7 order is a well considered order and I do not find WPC 21755/08 :4 : anything vitiating the same. Therefore, Exts.P4 and P7 deserves to be upheld, and if so, as a necessary consequence, the writ petition has to fail. 7. In the judgment relied on by the learned counsel for the petitioner in Sasidharan v. State of Kerala (1980 KLT 671), reference was made to para 13 thereof. This paragraph only talks about the manner in which an enquiry has to be held. In this case, having regard to the facts as noticed above, an enquiry was held and the petitioner cannot say that she was denied any opportunity to defend in the enquiry especially when she has chosen not to appear either before the authorized officer or before the appellate authority. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp