IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 20960 of 2005(T) -------------------------- PETITIONER: ------------ M.V.SUKUMARAN, S/O.VELU MADANI HOUSE, CHENTRAPPINNI, THRISSUR DISTICT. BY ADV. SRI.C.C.THOMAS RESPONDENTS: ------------- 1. THE SUB INSPECTOR OF POLCIE, KODUNGALLUR POLICE STATION, THRISSUR DISTRICT. 2. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 3. THE ADDITIONAL EXCISE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 4. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. 5. C.V.VISWANATHAN NAIR, SUPRADEEPOM KURUPS LANE, SASTHAMANGALAM TVM (ADDL.R5 IMPLEADED SUO MOTU AS PER ORDER DT.31.8.2005 IN THE WPC) BY GOVERNMENT PLEADER MR.P.A.SALIM SRI.M.BALAGOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 20960/05 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 TRUE COPY OF THE ORDER DT.25.2.2005 PASSED BY R2 EXT.P2 TRUE COPY OF the ORDER DT.8.5.2005 PASSED BY R3 EXT.P3 TRUE COPY OF THE LETTER DT.25.6.2005 ISSUED BY R2 EXT.P4 TRUE COPY OF THE REPORT DT.15.1.1999 ISSUED BY THE DIRECTOR OF FORENSIC SCIENCE LABORATORY, TVM TRUE COPY PA TO JUDGE K.BALAKRISHNAN NAIR, J. -------------------------------------------------------------------------------- Writ Petition (C) No.20960 of 2005-T -------------------------------------------------------------------------------- Judgment The petitioner is the registered owner of a tempo van bearing registration no.KL-8/D-3639. The said vehicle was seized by the Circle Inspector of Police, Mala on 28.11.1996 at about 5.20 pm. The vehicle was seized, while unloading 105 cases of Indian made foreign liquor from it before a liquor shop having FL1 licence. Crime No.269/96 was registered against four persons including the driver of the vehicle for the offence under S.55(a) of the Abkari Act. 2. Later, the petitioner being the registered owner of the vehicle, was served with notice under S.67C to show cause why the vehicle should not be confiscated under S.67B of the Abkari Act. The petitioner appeared through counsel and submitted that he has given necessary instructions to his driver that the vehicle should not be used for any illegal activities, that the driver has acted against his instructions and the above offence was committed without his knowledge or connivance. He is innocent of the crime registered and he had no claim regarding the ownership of the Indian made foreign liquor seized from WPC 20960/05 2 the vehicle. So, he prayed for release of the vehicle to him. 3. The authorised officer the Assistant Excise Commissioner, Thrissur considered the matter and relying on the forensic report no.B1/4067/FSL/97 dated 15.1.1999 found that what was transported was Indian made foreign liquor. Since the petitioner's driver was involved in the crime, the defence put forward by the petitioner was overruled and an order was passed confiscating the vehicle to the Government by Ext.P1 order dated 25.02.2005. The petitioner filed an appeal before the Additional Excise Commissioner on 19.03.2005. The said appeal was heard and dismissed by Ext.P2 order dated 08.05.2005. In the meantime, the vehicle was released to the petitioner on furnishing bank guarantee to the petitioner. This Writ Petition was filed challenging Exts.P1 and P2. He also challenges the direction issued to him as per Ext.P3 communication to produce the vehicle. This court granted interim stay of further proceedings on keeping alive the bank guarantee, which the petitioner has already furnished. The petitioner has also produced Ext.P4 forensic report issued by the Joint Director (Research) of the Forensic Science Laboratory, Thiruvananthapuram. Relying on the said report, it is submitted that the same does not show that what was seized was Indian made foreign WPC 20960/05 3 liquor. Since there was some apparent ambiguity in Ext.P4 this court suo motu impleaded the author of that report in the Writ Petition and he has filed an affidavit, explaining his stand. The respondents have also filed a counter affidavit supporting the impugned orders. 4. Heard the learned counsel on both sides. The learned counsel for the petitioner mainly urged two points before this court. The first point is that without the knowledge and connivance of the petitioner, the transport of the liquor took place. Against his express instructions and directions, the driver has acted involving the vehicle in the abkari offence. Secondly it is submitted that there is no material on record before the Assistant Excise Commissioner to render a finding that what was transported was Indian made foreign liquor. Ext.P4 does not give the result of the analysis that the bottles seized contained liquor. Therefore, the satisfaction of the Assistant Excise Commissioner that what was transported was foreign liquor was made based on no material. The appellate authority mechanically approved that finding. Therefore, the impugned orders are vitiated, it is submitted. WPC 20960/05 4 5. The learned Government Pleader on the other hand, took me through the counter affidavit of the 4th respondent as also the additional 5th respondent, who issued Ext.P4 and submitted that it is more than clear that what was transported was Indian made foreign liquor. 6. I will deal with the second contention first. The petitioner does not have a case before the Assistant Excise Commissioner that what was seized from his vehicle was not Indian made foreign liquor. That is evident from the submission of his counsel before the Assistant Excise Commissioner which finds a place in paragraph 2 of Ext.P1. Before the appellate authority also, the petitioner did not have any such case. But later, when the petitioner got a copy of Ext.P4 from the persons, who were accused in the crime, such a ground was raised for the first time in this Writ Petition. The author of Ext.P4 has filed a counter affidavit in the Writ Petition in which it is submitted as follows : “At the outset I may be permitted to state that forensic science laboratory in Thiruvananthapuram is a full fledged laboratory having the following divisions such as Chemistry, Biology, Physics, documents Ballistics, Serology and Explosives. The forensic laboratory in Thiruvananthapuram is not having branches WPC 20960/05 5 in any other districts. All the cases meant for forensic laboratory will be received at the laboratory in Thiruvananthapuram by the Director and the Director will distribute the cases among the personnels of different division by rotation. Cases connected with narcotics, alcohol, petroleum products etc are done in the Chemistry division. This case was received by the Director on 18.10.1997 and allotted to me. Some of the material objects were foreign liquor with forged stickers. I had been asked to compare two bottles of bell rum, two bottles of fine brandy and two bottles of bell brandy. After the examination I have reported that the M.O. in item no.1 is different from item no.2 by which I meant was that the bell rum in item no.1 is different from bell rum in item No.2. M.Os. in item no.3 is different from item no.4. M.Os. in item no.3 fine brandy is different from M.O. in item no.4 fine brandy. Similarly M.O. in item no.5 bell brandy is different from the M.O. in item no.6 bell brandy. Since the item-wise sample i.e., item no.1 to 6 were proved to be alcohol in my analysis, I have not re- written liquors against each item of sample sent by the Circle WPC 20960/05 6 Inspector of Police. I have categorically worked out the percentage of alcohol contained in each sample. In the worksheet contained in file no.G1-4067/97/FSL of forensic laboratory, the percentage of alcohol contained was not reported because it was not called for. I am herewith furnishing below the percentage of alcohol contained in each samples. Item No.1 - 36.2% Item No.2 - 40.40% Item No.3 - 39.85% Item No.4 - 44.40% Item No.5 - 39.20% Item No.6 - 42.65% I have also reported the description of articles contained in parcels sent by the Circle Inspector “brown colour liquid” based on physical appearance only. Hence the materials sent for examination contained liquor with alcohol. Hence the contention of the petitioner that Ext.P4 certificate would not show that the samples are either Indian made foreign WPC 20960/05 7 liquor or a liquid coming within the definition of liquor is not correct.” I feel that if there is any lack of clarity or omission in Ext.P4, that is cured by the above statement in the affidavit filed by the additional 5th respondent. The petitioner has not filed any reply affidavit to the above affidavit though it was filed on 06.12.2005 and a copy was served on the learned counsel for the petitioner on 05.12.2005. Therefore, for two reasons, the contentions of the petitioner cannot be accepted. Firstly, he did not have any case that what was transported was not foreign liquor before the statutory authorities. Secondly, any lacuna in Ext.P4 has been cured by the affidavit filed by the person who penned that report. 7. The next point to be considered is whether the lack of knowledge of the petitioner regarding the involvement of the vehicle will save him. The relevant statutory provision is contained in Sub-section (2) of Section 67C. The said provision reads as follows : “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 WPC 20960/05 8 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) The lack of knowledge or connivance of the owner alone will not be sufficient. If the person in charge of the vehicle was aware of the illegal transporting of liquor, the defence put forward by the petitioner cannot be accepted. In this case, the driver of the vehicle was involved. He is the person in charge of the vehicle. Therefore, the petitioner cannot get the benefit of the provisions contained in the above quoted provision. So, the challenge against Exts.P1 and P2 fails. 8. There is no point in directing to produce the vehicle now. Even if it is produced, owing to depreciation, its value would have come down considerably. Therefore, the 2nd respondent may invoke the bank guarantee WPC 20960/05 9 given for the vehicle while it was released to the petitioner. In other words, the vehicle need not be seized now. Subject to this direction, the Writ Petition is dismissed. 04.04.2008 K.BALAKRISHNAN NAIR,JUDGE sta