IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 12TH DAY OF DECEMBER 2011/21ST AGRAHAYANA 1933 WA.No. 381 of 2010 ( ) ====================== AGAINST THE ORDER/JUDGMENT IN WPC.9135/2009 DATED 03-04-2009 APPELLANT/PETITIONER IN THE WPC ================================== P.V.KARTHIKEYAN, AGED 49 YRS., S/O.VASU KARTHIKA VEEDU ELAVANTHITTA P.O. MEZHUVELI KOZHENCHERRY TALUK PATHANAMTHITTA DIST. BY ADV.SRI.N.N.SASI RESPONDENT/ RESPONDENT ========================== 1 STATE OF KERALA REP. BY THE SECRETARY EXCISE DEPARTMENT TRIVANDRUM. 2 THE ADDITIONAL EXCISE COMMISSIONER, EXCISE DEPARTMENT TRIVANDRUM. 3 THE ASST.EXCISE COMMISSIONER, EXCISE DEPARTMENT PATHANAMTHITTA. 4 THE EXCISE INSPECTOR, PATHANAMTHITTA RANGE PATHANAMTHITTA. BY GOVERNMENT PLEADER, SMT. SHERIN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma C.N. RAMACHANDRAN NAIR, & K. VINOD CHANDRAN, JJ ---------------------------------------------------- W.A No. 381 of 2010 ---------------------------------------------------- Dated this the 12th day of December, 2011 J U D G M E N T C.N. Ramachandran Nair , J Writ Petition is filed challenging orders of the excise authorities confiscating appellant's auto rickshaw KL 3D 6861 used for unauthorised transport of Indian made foreign liquor. 2. We have heard the learned counsel for the appellant and the learned Government Pleader and have also gone through the orders issued under Section 67B confiscating the appellant's auto rickshaw by the Assistant Excise Commissioner and also appellate order issued by the Excise Commissioner. 3. The appellant's case is that appellant was unaware of the fact that the passenger traveling in the auto was carrying liquor in the packet he had with him. However, the finding of the lower authorities including the learned Single Judge is that the person who was carrying liquor in appellant's auto rickshaw as a passenger was a person from appellant's own WA 381/2010 : 2 : village. Therefore, it was presumed that liquor was transported with appellant's knowledge. 4. Counsel for the appellant submitted that appellant was away for several years and he had no acquaintance with the person who was taken as a passenger with the packet. Appellant took an inconsistent stand in the proceedings that is by alternative contention that the liquor transported was within the permitted limit in volume for two persons, for the appellant and the passenger. In view of the inconsistent view taken by the appellant, the learned Single Judge declined to interfere with the confiscation orders. 5. After hearing the parties and considering the entire facts and circumstances, we do not find any ground to interfere with the confiscation order confirmed in appeal. However, what we notice is that the appellant's auto was released in 2008 itself to the appellant on deposit of its value assessed by RTO which was Rs.22000/= . The appellant is stated to be still using the auto as a means of livelihood. We feel, even if the auto is surrendered by the appellant pursuant to confiscation orders, Government will have to refund Rs.22000/- the value of the auto fixed three years back and in WA 381/2010 : 3 : this deal the State will be the looser. We therefore, feel that the appellant can be permitted to use the auto rickshaw on condition that the amount deposited can be forfeited to government towards the value of the auto. Accordingly, we dispose of the writ appeal by directing the respondent to treat the confiscation order as notional by appropriating the amount deposited towards the value of the auto rickshaw. Consequently, appellant is permitted to own and use the auto rickshaw. Sd/- C.N. RAMACHANDRAN NAIR(Judge) Sd/ K. VINOD CHANDRAN(Judge) jma //true copy// P.A to judge