IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WP(C).No. 18701 of 2005(B) ---------------------------------------- PETITIONER: --------------------- SREEDHARAN ETHIKANDY, AGED 36 YEARS, S/O.NANU, ETHIKANDY HOUSE, ERAMALA, VATAKARA. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENTS: ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, CIVIL STATION, KOZHIKODE. 2. THE SUB INSPECTOR OF POLICE, EDACHERY POLICE STATION, EDACHERY. 3. THE ASSISTANT EXCISE COMMISSIONER, KOZHIKODE. 4. THE DEPUTY COMMISSIONER OF EXCISE, OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE, KOZHIKODE. *ADDL.R5 IS IMPLEADED: R5. THE ADDITIONAL EXCISE COMMISSIONER, OFFICE OF THE ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM IS IMPLEADED AS ADDITIONAL 5TH RESPONDENT AS PER ORDER DTD. 18/07/05 IN I.A.NO.10264/05. BY SR. GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.18701 OF 2005 ------------------------------------------- Dated this the 15th day of February, 2008 JUDGMENT An autorikshaw was intercepted on 11.4.2004 in Calicut district under the limits of the Edacheri police. It was found to be carrying 22.320 litres of IMFL meant exclusively for sale in the Union Territory of Pondicherry. The driver identified as Sharafudeen fled while A.V.Ramesh accompanying the goods was arrested. Confiscation proceedings were initiated. Before that, the petitioner had moved this Court for interim relief as regards the release of the vehicle to third party custody and on bank guarantee, the vehicle was released. Accordingly, the confiscating officer issued pre-decisional notice to the registered owner as also the petitioner, who allegedly is the agreement owner of the vehicle. The petitioner did not appear before the confiscating officer, nor did he file any statement regarding his absenting, though that was a best opportunity under Section 67 C(2), whereby, the owner could prove to the satisfaction of the WPC.18701/05 Page numbers authorised officer that the vehicle was used in carrying liquor without his knowledge and connivance and that he has taken reasonable and necessary precautions against such use. After suffering Ext.P10 order of confiscation, the petitioner filed Ext.P12 appeal before an incompetent authority. That was rejected and re-presented before the competent authority. By that time, the time fixed for filing appeal had run out. Hence that appeal was dismissed as belated. At this distant point of time, I do not deem it appropriate to venture on treating the appeal as instituted appropriately and relegating the petitioner to the appellate authority. Instead, I have heard learned counsel for the petitioner on all aspects of the matter to find out whether even if this Court were to substitute its views as an appellate authority sitting on Ext.P10 confiscation order could reverse the same and still further, whether there was any ground for the confiscation order not being passed. 2. Adverting to Ext.P12, the appeal memorandum filed by the petitioner, particularly ground No.4 thereof, the plea of the WPC.18701/05 Page numbers petitioner is that he is the agreement owner of the vehicle, an autorikshaw and that he is not involved in the case. His stand is that he let the autorikshaw to Chepputty @ Sharafudeen on rent and that the said Sharafudeen is the second accused in the crime case and that the first accused is one Ramesan. Petitioner has stated in Ext.P12 that he is the owner of the vehicle and he had let out the same to the second respondent and at the time of seizing of the vehicle, the second accused was identified from the spot, but had run away from the scene. Bereft of stating so, the petitioner has not, in any manner, even stated that he had taken all reasonable and necessary precautions against the prohibited use and that the incident in question and the carrying of liquor was without his knowledge and connivance. These are not matters which can be inferred or presumed when the opportunity extended by the legislation as per Section 67 C (2) is for the owner to “prove” to the satisfaction of the authorised officer regarding the essential ingredients to be sustained to save the vehicle from confiscation. WPC.18701/05 Page numbers 3. Having found that, on facts, there is no ground to interfere with the impugned confiscation order, the further technical arguments relating to the sustainability or otherwise of the appeal do not deserve to be gone into. In the result, the writ petition fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.