IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WA.No. 2385 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.17462/2004 Dated 06/11/2006 .................... APPELLANT(S): RESPONDENTS: -------------------------- 1. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 2. THE ADDITIONAL EXCISE COMMISSIONER, KESTON ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.K.MEERA RESPONDENT(S): PETITIONER: -------------------------- V.P. PAULSON, AGED 39, S/O.V.K. PAILAPPAN, VALLOORAN HOUSE, NALUKETTU P.O., KORATTY, THRISSUR. ADV. SRI.C.C.THOMAS (SR.) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy,Ag.C.J. & P.R.Ramachandra Menon, J. -------------------------------------- W.A. No. 2385 of 2006 --------------------------------------- Dated this the 6th day of January, 2009 Judgment Koshy,Ag.C.J. On 25.7.2006, Circle Inspector of Police, Chalakudy seized a lorry with 367 cases of Indian made Foreign Liquor. One person was arrested on the spot. Four persons who were allegedly engaged in loading the liquor escaped in a maruti car with 'for registration' board. This car was later seized by the police and produced before the authorised officer. The vehicle was confiscated later. Appeal filed was allowed and the vehicle was released. The Excise Commissioner took up the matter in revision suo motu and set aside the order of the appellate authority and confirmed the order of confiscation by Ext.P3. That was challenged in the writ petition. 2. Section 67-B of the Abkari Act provides for confiscation of the vehicle or conveyance used for carrying the illicit liquor. Section 67-B reads as follows: W.A.No.2385/2006 2 “67B. Confiscation by Abkari Officers in certain cases:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, intoxicating drug, material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act; the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer). (2) Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof. (3) When making an order of confiscation under sub-section (2), the authorised officer may also order that such of the properties to which the order of confiscation relates, which in his W.A.No.2385/2006 3 opinion cannot be preserved or are not fit for human consumption, be destroyed.” It is very clearly mentioned that only vessel or other conveyance used for carrying the same can be seized and confiscated. The learned Judge found that even according to the case of the State, the vehicle never carried liquor and, therefore, it cannot be confiscated under section 67-B. It was argued that the decision reported in Assistant Excise Commissioner v. Vijayan (1981 KLT 366) takes an opposite view. In that case, a Division Bench of this court considered the case of seizure and confiscation of a public transport vehicle. A passenger was found in possession of liquor and the question was whether the vehicle was used for carrying the contraband article. The Division Bench held that a vehicle can be said to be used for carrying the contraband article only if the person who actually effects such transportation has at least some degree of minimal control over the operation of the vehicle. In fact, facts are entirely different and in any event that is against the case of the appellant. If the vehicle is used for carrying the liquor, it is liable for confiscation. Merely because culprits escaped in a vehicle after committing an offence, that vehicle cannot be confiscated under W.A.No.2385/2006 4 section 67-B. In the above circumstances, we see no ground to interfere in the impugned judgment. Appeal is dismissed. J.B.Koshy Acting Chief Justice P.R.Ramachandra Menon Judge vaa W.A.No.2385/2006 5 J.B. KOSHY, Ag.C.J. AND P.R.RAMACHANDRA MENON,J. ------------------------------------- W.A.No. 2385/2006 ------------------------------------- Judgment Date:6th January, 2009