IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 28TH DAY OF JUNE 2011/7TH ASHADAH 1933 WP(C).No. 693 of 2006 (G) ------------------------- PETITIONER(S): ------------- THE SECRETARY, KALPETTA AUTORICKSHAW DRIVERS CO-OPERATIVE SOCIETY LTD.NO.W-14, AGRICULTURAL BANK BUILDING, KALPETTA, WAYANAD. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): -------------- 1. THE ASSISTANT EXCISE COMMISSIONER, WAYANAD. 2. THE ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06- 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.693/06 APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF THE ORDER DT.25.7.2005 ISSUED BY THE 1ST RESPONDENT. P2: TRUE COPY OFO THE ORDER DATED 6.11.2005 ISSUED BY THE 2ND RESPONDENT. P3: TRUE COPY OF THE NOTICE DATED 17.12.2005 ISSUED BY THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.693 OF 2006 -------------------------------------------- Dated this the 28th day of June, 2011 JUDGMENT The petitioner is the Secretary of an Autorikshaw Drivers Co- operative Society registered under the Kerala Co-operative Societies Act. This Writ Petition has been filed challenging Exts.P1 to P3 and also seeking a declaration that the autorikshaw bearing registration No.KL-12/B 8893 belonging to the petitioner is not liable to be confiscated under the provisions of the Abkari Act. 2. The aforesaid autorikshaw involved in an abkari offence. On 19.9.2004, the said autorikshaw was intercepted by the Sub Inspector of Police, Mepady on the allegation that 30 litres of arrack was seized from the said vehicle. The allegation is that the said quantity of arrack was being illegally transported in the said vehicle. On the said allegation, Crime No.230/2004 of Mepady Police station was registered under Section 8(1) and (2) and 55(g) and 58 of the W.P.(C) NO.693/2006 2 Abkari Act against one Sri.Babu, S/o Chathan, Binu S/o Xavier and Biju S/o Xavier. The contention of the petitioner is that on 14.9.2004, the said autorikshaw was given to Sri.Babu, S/o Chathan who is a member of the society under hire purchase scheme. Admittedly, the petitioner society is the owner of the said autorikshaw. The petitioner was served with a notice dated 5.4.2005 from the first respondent calling for objections, if any, against the confiscation of the said vehicle under Section 67B of the Abkari Act. On an application, the interim custody of the vehicle was given to the petitioner on 26.4.2005. The petitioner filed objections pursuant to the receipt of notice dated 5.4.2005. Thereafter, Ext.P1 was passed by the first respondent under Section 67B of the Abkari Act confiscating the aforesaid vehicle to the Government. Aggrieved by the said order, the petitioner preferred an appeal and the said appeal was dismissed by the second respondent as per Ext.P2. The Commissioner has not taken up suo motu revision in the matter. Thereafter, the first respondent issued Ext.P3 requiring the petitioner to produce the vehicle. It is in the said circumstances that this Writ Petition has been W.P.(C) NO.693/2006 3 filed with the aforesaid prayers. 3. The contention of the petitioner is that the society is providing autorikshaw to its members under hire purchase scheme. It is admitted that the petitioner is the registered owner of the autorikshaw bearing No. KL-12/B 8893. The further contention is that substantive portion of the hire purchase amount is yet to be paid by the said Sri.Babu, S/o Chathan. The society is not, in any way, responsible for the alleged transportation of the arrack in the said vehicle. According to the petitioner, Exts.P1 and P2 orders are passed in blatant violation of the principles of natural justice. No opportunity was given to the petitioner to dispute the finding in the report of the Excise Circle Inspector. As already noticed hereinbefore, the petitioner is admitting the fact that he is the owner of the autorikshaw involved in the above crime. After the registration of the crime, the said vehicle was produced before the authorised officer. As part of the proceedings under 67B of the Abkari Act, a notice was admittedly issued to the petitioner. In fact, the petitioner admits the fact that such W.P.(C) NO.693/2006 4 a notice was received on 5.4.2005. A perusal of the contentions in the Writ Petition would further reveal that pursuant to the receipt of the said notice, the petitioner had filed an objection before the first respondent against the proposed confiscation of the vehicle. However, the copy of the said objection has not been produced along with this Writ Petition. Ext.P1 is the order passed by the first respondent under Section 67B of the Abkari Act. The person who purchased the vehicle on hire purchase scheme viz., Sri.Babu, S/o Sri.Chathan is also a member of the petitioner society. The contention before the first respondent is that the vehicle in question was taken into custody based on certain misconceptions. Apart from the said vague statement, he has not produced any evidence to substantiate the said contentions. In the proceedings under Section 67B of the Abkari Act, the owner of the vehicle, on receipt of notice has the duty to discharge the burden in terms of 67C of the Abkari Act. Even in this Writ Petition, the petitioner has no case that he has satisfactorily discharged the requirements under Section 67C(2) of the Abkari Act. The contention of the petitioner is that the concerned person viz., W.P.(C) NO.693/2006 5 Sri.Babu, S/o Chathan has been given the autorikshaw in question under hire purchase Scheme. The fact that the petitioner is the owner of the vehicle is not disputed. On the failure of the petitioner to prove the burden in terms of Section 67C(2) of the Abkari Act before the first respondent, I am not in a position to uphold that the order in Ext.P1 is illegal and invites interference by this Court. Aggrieved by Ext.P1, the petitioner has preferred an appeal before the second respondent under 67E of the Abkari Act. Ext.P2 is the order passed by the second respondent in the said appeal. Ext.P2 would reveal that all the contentions raised by the petitioner have been considered properly by the appellate authority. The petitioner has no case that the vehicle had not involved in an abkari offence as alleged. The allegation is that thirty litres of arrack was being illegally transported in the said vehicle. When that be the position, on receipt of a notice in a proceedings under 67B, the petitioner was having the duty to prove before that authority that he had taken all steps in terms of the provisions under 67C(2) of the Act. The condition in the hire purchase agreement that in case of any untoward incidents the hirer W.P.(C) NO.693/2006 6 would be responsible for the consequences would not sufficient to absolve the petitioner from the statutory burden in terms Section 67C (2) of the Abkari Act. True that it is not mandatory that in all proceedings under 67B of the Abkari Act involving transportation of contraband articles, the proceedings should result in confiscation of the vehicle. A persual of Exts. P1 and P2 would reveal that respondents 1 and 2 have passed the said orders with application of mind. The petitioner cannot be heard to contend that Exts.P1 and P2 were passed in violation of the principles of natural justice. Admittedly, Ext.P1 order was passed after affording an opportunity to the petitioner to file his objection. Ext.P2 would reveal that in the appeal, the petitioner was represented through his counsel. It is after hearing the petitioner that Exts.P1 and P2 were passed. There is nothing on record to prove that the petitioner has successfully discharged his burden under Section 67C(2) of the Abkari Act. The respondents have considered all such aspects and also the fact that the petitioner has failed to prove compliance with the requirements under Section 67C(2) of the Act. They are justified in passing Exts.P1 and W.P.(C) NO.693/2006 7 P2 orders in the said circumstances. They cannot be said to be perverse or illegal warranting interference by this Court. Ext.P3 is only a consequential notice issued pursuant to Exts.P1 and P2. Since I find no illegality in Exts.P1 and P2, there is no reason to interfere with Ext.P3. There is no merit in the Writ Petition and, accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.693/2006 8 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.693/2006 9