IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 27331 of 2008(D) -------------------------- PETITIONER(S): --------------- BABU, S/O. JOSEPH, AGED 53 YEARS, KARALTHUKARAN HOUSE, MAROTTICHUVADU, THRIKKAKARA, ERNAKULAM DISTRICT. BY ADV. SRI.SHAIJAN C.GEORGE SRI.JOHN VIPIN SMT.S.A.SHERLY SMT.S.REKHA KUMARI SMT SAJITHA GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 2. ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. ASSISTANT EXCISE COMMISSIONER, ERNAKULAM. 4. EXCISE INSPECTOR, EXCISE RANGE OFFICE, ERNAKULAM. SMT N.SUDHA DEVI GOVERNMENT PLEADER FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 18/06/2009 DELIVERED THE FOLLOWING: WP(C)No.27331/2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE ORDER NO.7/3051/06 DATED 9/7/2007. EXHIBIT P2: TRUE COPY OF THE ORDER NO.49/APL/2007/AC(X) DATED 21.6.2008. EXHIBIT P3: TRUE COPY OF THE ORDER IN CRL.M.C.NO.432/06 DTD 12.4.06. EXHIBIT P4: TRUE COPY OF THE FINAL REPORT IN CC NO.321/06 DATED 09.07.2007. EXHIBIT P5: TRUE COPY OF LIQUOR PERMIT /TRUE COPY/ P.A.TO JUDGE vgd S.SIRI JAGAN ----------------------------- WP(C) No.27331 of 2008 ----------------------------- Dated this the 18th day of June, 2009 JUDGMENT The petitioner claims to be an ex-serviceman. At 7.30 pm on 01.04.2006 the Excise Inspector of Ernakulam Excise range and party caught the petitioner transporting 30 bottles of Indian made foreign liquor, having total quantity of 22.500 liters in a Honda Activa Scooter and a crime was registered u/s 55(a) of Abkari Act. The scooter was produced before the Assistant Excise Commissioner, Ernakulam, who initiated proceedings u/s 67B of the Abkari Act for confiscation. Originally the same was temporarily released to the petitioner on depositing the market value of the scooter amounting to Rs. 16,000/-. Subsequently the 3rd respondent finalised the confiscation proceedings by Ext.P1 order, directing confiscation of the vehicle. Petitioner's appeal before the 2nd respondent met with Ext.P2 order dismissing the appeal. It is under the above circumstances the petitioner has filed as this writ petition challenging Exts. P1 & P2 orders seeking the following reliefs: “ (i) to issue a writ of mandamus directing the respondents to produce all the documents pertaining to Ext.P1 and P2 orders. (ii) to quash Exhibit P1 and P2 orders. (iii) to issue a direction to the respondents to stay further proceedings pursuant to Exhibit P1 and P2 orders.” 2. The contention of the petitioner is that the petitioner is an ex- serviceman, who holds a permit for supply of liquor from the defence canteen W.P.C.No.27331 of 2008 2 and copy of the permit in this regard is produced as Ext.P5. Petitioner has also produced Exts. P5(2) & P5(3) which he claim to be bills for the purchase of liquor from the Defence Canteen. According to the petitioner, the petitioner obtained the liquor validly from the defence canteen. He would further submit that in every case of violation of provisions of Abkari Act need not necessarily in confiscation. According to the petitioner, a discretion is vested with the respondents to decide whether to confiscate the vehicle or not, which has to be exercised judicially, considering the various factors available such as the gravity of the offence, the manner in which it was committed, the circumstances under which vehicle as used by the parties etc. In support of that contention the petitioner relies on the Division Bench decision of this Court in Assoothy V Asst.Excise Commissioner, 1988 (2) KLT 16. 3. A statement has been filed by the 3rd respondent in which the claims of the petitioner are sought to be controverted. According to the 3rd respondent the petitioner was transporting Indian made foreign liquor in excess of the quantity which he can possesses individually, without any transport permit for the excess quantity. Therefore clearly he has committed offences under the Abkari Act and therefore the vehicle is liable for confiscation. The learned Government Pleader also points out that the petitioner never had consistent case, which according to him it is certainly a factor which would waive with the respondents for confiscating the vehicle. W.P.C.No.27331 of 2008 3 4. The counsel for the petitioner submits that even if this Court upholds the confiscation, if the petitioner has deposited the amount of Rs. 16,000/-, the same should be adjusted in lieu of the confiscation of the vehicle and the vehicle shall not be proceeded against further, pursuant to the impugned order. 5. I have considered the rival contentions in detail. 6. In Ext.P1 order of the Assistant Excise Commissioner, has stated this: “the R.C. owner has appeared and statement has been taken down. He has also submitted a written statement which in he has stated that the Excise party has caught this vehicle in his way after purchasing the liquor as per his permit. But as per the statement recorded from him it is said that he was transporting the liquor kept in his wife house to his own residence at Edappally. He has not shown any proof of the permit for transporting the quantity of liquor.” That itself shows that the petitioner had different versions about the incidents at different times. He also did not produce proof of the permit before the Assistant Excise Commissioner. He did not produce Ext.P5 series of bills before the Asst. Excise Commissioner. Although counsel for the petitioner would claim that those were produced at the time of hearing, he is not able to satisfy me when he had produced it. Curiously during the investigation by the police he gave a different version to the effect that the liquor was procured for the marriage of a relative as per the request of that relative from other ex-servicemen, who were the petitioner's friends. That means the petitioner again had a third version which casts serious doubts on the bonafides of the petitioner in the matter. Admittedly the petitioner had no valid defence for the transport of the liquor which was far in excess of the permitted quantity and therefore he has violated the provisions of the Abkari Act and Rules. It cannot be stated that the 3rd W.P.C.No.27331 of 2008 4 respondent has exercised his discretion without taking into account the factors which should waive with such consideration. Therefore I am not inclined to exercise my discretionary jurisdiction in favor of the petitioner. Accordingly the writ petition is dismissed. However, I direct that if the petitioner has deposited Rs. 16,000/- the same shall be adjusted as in lieu of confiscation and the vehicle shall not be proceeded against. However if the amount has not been paid the vehicle shall be seized and confiscated. S.SIRI JAGAN JUDGE vgd