IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 12545 of 2009(K) -------------------------- PETITIONER(S): ---------------------- GIJO V.CHERIAN, AGED 28 YEARS, S/O.V.J.CHERIAN, VELLAKALLIL HOUSE, PULIKKALLU,P.O., MANIMALA, KOTTAYAM DISTRICT. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): ------------------------ 1. THE SUB INSPECTOR OF POLICE, PUDUKAD POLICE STATION,THRISSUR DISTRICT. 2. THE DY.EXCISE COMMISSIONER, THRISSUR. 3. THE ADDL.EXCISE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 4. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 12545 of 2009 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the toddy transport permit No.P5-2024/06 dated 31.3.2006 issued by the Asst. Excise Commissioner, Palakkad. Ext.P2 :- Copy of the toddy transport permit No.P5-1746/06 dated 31.3.2006 issued by the Asst. Excise Commissioner, Palakkad. Ext.P3 :- Copy of the toddy transport permit No.P5-1745/06 dated 31.3.2006 issued by the Asst. Excise Commissioner, Palakkad. Ext.P4 :- Copy of the toddy transport permit No.P5-1744/06 dated 31.3.2006 issued by the Asst. Excise Commissioner, Palakkad. Ext.P5 :- Copy of the toddy transport permit No.P5-1749/06 dated 31.3.2006 issued by the Asst. Excise Commissioner, Palakkad. Ext.P6 :- Copy of the toddy transport permit No.P5-1748/06 dated 31.3.2006 issued by the Asst. Excise Commissioner, Palakkad. Ext.P7 :- Copy of the show cause notice issued by the 2nd respondent to the petitioner dated 17.10.2006. Ext.P8 :- Copy of the reply dated 27.10.2006 to Ext.P7 show cause notice. Ext.P9 :- Copy of the bill/estimate dated 29.4.2006 issued from Devi Narayana Automobiles, Thrippallur. Ext.P10 :- Copy of the order dated 31.12.2008 passed by the 2nd respondent. Ext.P11 :- Copy of the order dated 24.3.2009 passed by the 3rd respondent. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge P.R.RAMACHANDRA MENON, J. ------------------------------------------- W.P.(C) No.12545 of 2009 ----------------------------------- Dated this the 29th day of September 2010 J U D G M E N T The main issue raised for consideration is whether the confiscation as contemplated in 67B of the Abkari Act, once the offence is made out, is automatic or not. Another question is whether the benefit claimed with regard to Sec.67C(2) has to be considered independently and the next question is whether the power of discretion conferred on the concerned authority has been properly used, more so, when the matter was finally heard by one particular officer and the final orders were passed by another officer as borne by Ext.P10; that too, nearly two years after the final hearing. 2. With regard to facts in detail, the petitioner was the registered owner of a Mahindra Pick up Van bearing Reg.No.KL 5P 4849, which was stated as being let out for W.P.(C) No.12545 of 2009 -: 2 :- carrying toddy from Palakkad to various destinations in Kottayam District. In the course of such business, the petitioner's vehicle was intercepted by the 1st respondent on 29.4.2006 at about 9.15a.m., when the vehicle was found transporting 1440 Ltrs. of toddy without valid permit and that too, while passing through Thrissur District near Puthukkad on a 'Dry day' declared in connection with the General Election to the Kerala Legislative Assembly. The concerned persons were arrested on the spot and a crime was registered (Crime No.219/2006) in respect of different offences under the Abkari Act. 3. In the course of the proceedings, Ext.P7 Show- Cause Notice was issued to the petitioner, which was replied as per Ext.P8, stating that the toddy was actually being transported on the basis of valid permits, Exts.P1 to P6. The case projected by the petitioner was that the vehicle was having the permit to carry 825 Ltrs. of toddy, as covered by Exts.P1 to P4 and the said quantity of toddy was being transported on the strength of the above permits. While so, W.P.(C) No.12545 of 2009 -: 3 :- when the vehicle reached near Thrippallur in Alathur, another vehicle bearing No.KL 5T 3277 engaged in similar operation and carrying 615 Ltrs. of toddy on the strength of Exts.P5 and P6 permits, was found lying on the side of the road because of brake down. In the said circumstance, taking note of the immediate requirement to take the goods to the destination, on the request of the driver of the other vehicle bearing Reg.No.KL 5T 3277, the toddy carried in the said vehicle was transferred to the petitioner's vehicle bearing Reg.No.KL 5P 4849 and accordingly, the entire quantity was being taken to the destination as covered by Exts.P1 to P6 permits, when it was intercepted by the 1st respondent. It is rather conceded that the number of the vehicle of the petitioner (KL 5P 4849) was mentioned only in Exts.P1 to P4 permits, while in Exts.P5 and P6 permits, the vehicle No. given was that of the other vehicle (KL 5T 3277). The factual position in this regard was explained by the petitioner in Ext.P8. However, without properly considering the explanation and also the points raised in the course of hearing, Ext.P10 order was passed by W.P.(C) No.12545 of 2009 -: 4 :- the authorized officer, nearly 'two years' after the final hearing, adopting a mechanical approach ordering confiscation of the vehicle; which made the petitioner to approach the 3rd respondent, by filing an appeal. The said appeal was considered and Ext.P11 order was passed, declining interference and confirming the order passed by the original authority vide Ext.P10; which in turn forms the subject matter of challenge in this writ petition. 4. The averments and allegations raised in this writ petition have been sought to be rebutted in the counter affidavit filed by the 3rd respondent. It is also contended that if the version offered by the petitioner was to be accepted, the petitioner had to approach the concerned authorities of the Excise Department on the very same day, when the other vehicle was found lying broken down, to have carried the toddy which was being transported in the said vehicle as well and admittedly since the said course has not been followed, the explanation offered is not liable to be considered. The learned counsel for the petitioner submits that the W.P.(C) No.12545 of 2009 -: 5 :- interception was made by the 1st respondent while passing through Thrissur District on the relevant day, mainly for the reason that the 'Dry day' had been declared in Thrissur District because of the General Election to the Kerala Legislative Assembly, probably under the impression that it was being transported to be distributed in Thrissur District. As a matter of fact, the toddy was being transported from Palakkad to Kottayam District, which had necessarily to cross through Thrissur District and there was no prohibitory orders or ban in Palakkad or Kottayam Districts; because the election was being conducted in 'region wise' manner. The learned counsel also submits that there is no dispute with regard to the factual position in this regard and that the ban imposed in Thrissur District was not known to the petitioner when transporting toddy from Palakkad to Kottayam District, passing through Thrissur District. The said explanation has been sought to be accepted by the authorized officer when passing Ext.P10 order; despite which, no proper application of mind was made as to whether the vehicle needed to be W.P.(C) No.12545 of 2009 -: 6 :- 'confiscated' or not. It is also stated that the petitioner adduced evidence, oral as well as documentary, by examining 'five' witnesses including himself, drivers of both vehicles and two police constables. Petitioner also produced the concerned bill in respect of serious repairs effected to the Gear Box of the vehicle bearing Reg.No.KL 5T 3277 near the place of occurrence, where it was lying broken down. Absolutely no discussion is stated as made by the concerned authorities, either in Ext.P10 order or in Ext.P11 appellate order passed by the 3rd respondent as to the acceptance of the said version; without which, the confiscation has been finalized quite in a mechanical manner, which is sought to be intercepted by this Court. The learned counsel also submits that the power of confiscation contemplated under Sec.67B is rather 'discretionary' and 'not mandatory'; particularly in view of the law declared in Assootty v. Assistant Excise Commissioner [1988(2) KLT 16] and Vamadevan Pillai v. State of Kerala [1982 KLT 518]. 5. Going by the materials on record, it appears that W.P.(C) No.12545 of 2009 -: 7 :- the ban was imposed in a region-wise manner, available in Thrissur District; whereas it was not so, with regard to Palakkad and Kottayam Districts. The version put forth by the petitioner in this regard and that the toddy was being transported from Palakkad to Kottayam District crossing through Thrissur District, have been rather accepted by the authorized officer in Ext.P10. But coming to Ext.P11, the Appellate Authority has made a contrary stand and observed as follows :- “Moreover as per the direction of the Election Commission of India the Government have declared Dry days as per G.O (Rt) No.231/06 TD dated: 06.04.2006 due to the General Election of Kerala Legislature 2006. So it is evident that this vehicle transported about 1440 litres of toddy without valid permit on Dry day and confiscating authority has rightly held that the vehicle should be confiscated as per the provisions of section 67 B of Abkari Act.” There is absolutely no reference as to whether the 'Dry day' declared by the Government was for the whole State or whether it was restricted to Thrissur District, as contended by the petitioner. Similarly, no observation is there with regard W.P.(C) No.12545 of 2009 -: 8 :- to the findings made by the authorized officer in Ext.P10, holding that eventhough there was declaration of 'Dry day' in some regions, it need not be banned to transport toddy on the strength of valid permit to other regions, where there is no such ban. 6. Similarly, with regard to the claim put forth by the petitioner with reference to Sec.67C (2) of the Abkari Act, it is contended that the petitioner has established his case by producing/adducing documentary/oral evidence, which has not been adverted to, by the authorities concerned. The only observation made by the Appellate Authority in this regard is that the appellant has failed to take sufficient precautions against the misuse of the vehicle and hence he cannot claim the benefit of 67C (2). 7. As mentioned hereinbefore, the petitioner had examined 'five' witnesses and also produced documentary evidence showing the serious repair of the concerned vehicle, having repaired the same in the nearby workshop on the very same day. The version put forth by the petitioner may be W.P.(C) No.12545 of 2009 -: 9 :- correct or may not be correct; which depends on the acceptability of the evidence. But whether the evidence was considered by the concerned authority in the 'decision making process' above forms the subject matter of consideration by this Court. Obviously, no such discussion has been made in Ext.P10 or Ext.P11, to hold that the evidence tendered by the petitioner in this regard is not genuine or not acceptable. In the said circumstances, the decision taken by the original as well as the appellate authority ordering confiscation of the vehicle under Sec.67B, also denying the benefit of 67C(2) requires to be reconsidered. More so, since the term used under Sec.67B is with reference to the power of the concerned authority that “he may” order confiscation of the vehicle; while the term “shall” has been consciously omitted by the rule making authority and further more, in view of the law declared by the Division Bench of this Court that such power under Sec.67B of the Abkari Act is 'discretionary'. 8. In the above circumstance, Exts.P10 and P11 are set aside and the 2nd respondent is directed to reconsider the W.P.(C) No.12545 of 2009 -: 10 :- matter in the light of the above observations and pass a 'speaking order' with reference to the evidence on record and the relevant provisions of law, giving an opportunity of hearing to the petitioner. The proceedings as above shall be completed as expeditiously as possible; at any rate, within 'three months' from the date of receipt of a copy of this judgment. 9. The petitioner shall ensure that the 'bank guarantee' already furnished and ordered to be kept alive as per the interim order passed by this Court on 21.4.2009 is kept in tact and renewed till the finalization of the proceedings as above. Writ petition is disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE. Jvt