IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 WA.No. 1512 of 2011 --------------------- AGAINST THE JUDGEMENT IN WPC.13415/2011 Dated 17/06/2011 .................... APPELLANT/PETITIONER: --------------------------- SHIBU PHILIP, S/O.PHILIP, VADAKKEL HOUSE, KAMPAMMEDU KARA, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.THOMAS J.ANAKKALLUNKAL RESPONDENTS/RESPONDENTS: ----------------------------------- 1. THE DEPUTY EXCISE COMMISSIONER, IDUKKI. 2. THE ADDITIONAL EXCISE COMMISSIONER(ENFORCEMENT), THIRUVANANTHAPURAM. BY GOVT. PLEADER, SRI.GEORGE MECHERIL. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, Ag. CJ. & P.S.GOPINATHAN, J ---------------------------------------------- W.A.No. 1512 of 2011 ---------------------------------------------- Dated this the 17th day of October, 2011 JUDGMENT Ramachandran Nair, Ag.CJ. The appellant is a self employed person operating his own autorikshaw. A passenger, who hired the autorikshaw carried 6.75 litres of Indian made foreign liquor in the appellant's autorikshaw at 9.30 pm on 9.1.2010. When the vehicle was intercepted and verified by the Excise authorities, they did not find any document in support of the transport of liquor. Consequently, the vehicle was detained and later confiscated for adjudication proceedings. The appellant's case is that the appellant was not aware of the contents of the luggage carried by the passenger and therefore, the transport was without his knowledge. It is his further contention that when the party came, it was not evident as to whether the bundle is liquor, the transport of which without document is prohibited. The Government Pleader, who took notice on admission argued the matter. WA.1512/11 2 2. After hearing both sides and after going through the orders impugned, we do not find any justification to interfere with the findings with regard to the confiscation. However, what we feel is that the appellant is given an option to release the autorikshaw on payment of market value, which is determined as Rs.1,00,000/-. The autorikshaw itself is a 2009 model vehicle and as of now, the appellant has an option to remit Rs.1,00,000/- or surrender the autorikshaw to the Excise authorities. Considering the use of the autorikshaw for 1½ years even after confiscation, there can be no doubt that there is substantial value erosion from the date of confiscation. This is certainly a lacuna in the Statue and in our view, unless value as on the date of confiscation is recoverable at the option to the department instead of confiscation, the loss on account of wear and tear in the custody of the owner after seizure but until confiscation cannot be recovered. 3. In view of the erosion of value suffered as above and since the appellant is a self employed person operating his own autorikshaw, we allow the Writ Appeal in part by modifying the judgment of the learned Single Judge and the adjudication order by reducing the market value payable at Rs.50,000/- as against WA.1512/11 3 Rs.1,00,000/- fixed under the impugned orders. If the petitioner has deposited Rs.1,00,000/-, Rs.50,000/- will be retained towards the cost and the balance of Rs.50,000/- will be released to the petitioner by the Assistant Excise Commissioner or the Treasury Officer as the case may be, within two weeks from the date of production of a copy of this judgment. C.N.RAMACHANDRAN NAIR, ACTING CHIEF JUSTICE P.S.GOPINATHAN, JUDGE vgs