IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 WP(C).No. 18119 of 2004(F) -------------------------- PETITIONER: ------------ ROY SEBASTIAN, S/O. SEBASTIAN, AGED 42, KOZHIKOTTU HOUSE, ATTAPPALAM KARA, KUMALY, IDUKKI DISTRICT. BY ADV. SRI.A.T.ANILKUMAR SRI.C.V.JOHNY SRI.MARTIN JOHN SRI.GEORGIE SIMON RESPONDENTS: ------------- 1. COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 2. ASST.EXCISE COMMISSIONER THODUPUZHA, IDUKKI DISTRICT. BY GOVERNMENT PLEADER SHRI.M.R.SABU, FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 18119/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ORDER BY R2. P2. COPY OF THE ORDER BY R1. P3. COPY OF THE ORDER DTD.27.11.03 BY R2. P4. COPY OF THE ORDER DTD.21.5.04 BY R2. P5. COPY OF THE LETTER DTD.4.6.04 BY R2 P6. COPY OF THE JUDGMENT IN SC.NO.110/03. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.18119 of 2004 ================== Dated this the 15th day of September, 2008 J U D G M E N T The petitioner challenges Ext.P3 order of the Assistant Excise Commissioner, Idukki, confiscating the petitioner's Maruti car for involvement in an offence under the Abkari Act, as also Exts.P4 and P5 letters invoking the bank guarantee furnished by the petitioner as security for release of the vehicle during the pendency of the confiscation proceedings. The contention of the petitioner is that the petitioner was not in any way involved in the offence in question. He was also acquitted in the criminal case although he was the 3rd accused therein. The case of the petitioner is the car was used by his friend by name Roy Joseph, who actually committed the offence, without the knowledge of the petitioner, for which the said Roy Joseph was convicted by the Criminal Court sentencing him to a fine of Rs.500/-. The petitioner, therefore, submits that the petitioner's car is not liable to be confiscated in view of sub section (2) of Section 67 C of the Abkari Act. He would further submit that assuming that the petitioner was in any way responsible, the confiscation of the vehicle was w.p.c.18119/04 2 not warranted. He relies on the decisions of this Court in Assootty v. Asst. Excise Commissioner [1988 (2) KLT 16] and Vamadevan Pillai v. State of Kerala & Others [1982 KLT 518]. According to him, the quantity of the liquor carried in the vehicle was only 19.390 liters. Compared to the value of the vehicle, the same was negligible. Consequently, he would submit that going by the dictum in the above said decisions, the gravity of the alleged misconduct and the attendant circumstances did not warrant confiscation of the vehicle at all. 2. A counter affidavit has been filed by the 1st respondent supporting the impugned proceedings. 3. I have considered the rival contentions in detail. 4. Admittedly the vehicle belongs to the petitioner. The same was being driven by one Roy Joseph at the time of apprehension of the vehicle with the liquor. The vehicle contained 74 bottles of liquor containing 19.390 litres of Indian Made Foreign Liquor. The driver of the vehicle was convicted under Section 63 of the Abkari Act for possession of liquor in excess of the permitted quantity. Certainly if there is sufficient evidence to show the ingredients of Section 67C(2), the petitioner is entitled to the benefit of the same. But, apart from the statement of a w.p.c.18119/04 3 neighbour, who was unconnected with the whole incident, the petitioner could not prove his case for benefit of section 67C(2) before the Assistant Excise Commissioner. Roy Joseph was not examined at all who alone could have vouched for the fact that the petitioner had no knowledge of transport of the liquor and that the same was done by Roy Joseph on his own. The petitioner has also to prove that he had taken all precautions to see that the vehicle is not used for any illicit purposes. The Assistant Excise Commissioner had rejected the evidence of the witness examined by the petitioner. I am of opinion that he has rightly done so. A neighbour cannot vouch as to whether the said Roy Joseph had done it on his own or on behalf of the petitioner. He cannot also say that while giving possession of the vehicle to the said Roy Joseph, even if the said case is true, the petitioner had in fact taken adequate precautions to see that Roy Joseph does not to use the vehicle for illegal purposes. That being so, I am satisfied that the petitioner has not succeeded in proving the ingredients of sub section (2) of Section 67C of the Abkari Act. Therefore, he is not eligible for the benefit of the said sub section. 5. The next contention is based on the two decisions w.p.c.18119/04 4 referred to above. According to the petitioner, the quantity of liquor was so negligible compared to the value of the vehicle and therefore, the gravity of the offence alleged is not sufficient enough to exercise the discretion vested with the Assistant Excise Commissioner to confiscate the vehicle itself. Regarding that also, I am not satisfied. Admittedly at the time of seizure, the vehicle contained 74 bottles of liquor containing 19.390 liters. Evidently, the same was not being transported for own consumption. Certainly it was for trading in liquor. There is no case for the petitioner that for such trading either the petitioner or the said Roy Joseph had any licence. Therefore, I am not prepared to countenance the contention of the petitioner that the gravity of the offence did not warrant confiscation of the vehicle itself. Certainly, the above offence attracted confiscation provisions under the Act. That being so, I do not find any merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.18119/04 5