IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 23953 of 2008(B) ---------------------------------------- PETITIONER(S): ------------------------- MURALI. D, S/O.DIVAKARAN, THALPALAM VEEDU, THEKKUM BHAGAM, KADAKKAVUR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. BY ADVS. MRI.M.R.RAJESH, SMT.A.K.PREETHA. RESPONDENT(S): --------------------------- 1. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM 2. THE ASSISTANT EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE SUB INSPECTOR OF POLICE, ANCHUTHENGU POLICE STATION, THIRUVANANTHAPURAM. 4. MATHEW,S/O. IGNATIOUS, KUNNUMPURATHU PURAYIDOM, ANCHUTHENGU, THIRUVANANTHAPURAM R1 TO R3 BY GOVERNMENT PLEADER MR. DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23953/2008 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AGREEMENT DTD. 28/10/2007 BETWEEN THE PETITIONER AND 4TH RESPONDENT. P2: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P3: COPY OF THE ORDER NO.T6-11921/2007 DTD. 24/03/2008 OF THE 2ND RESPONDENT. P4: COPY OF THE ORDER NO.XA4-7691/08 DTD. 18/04/2008 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. --------------------- W.P.(C).No.23953 OF 2008 ------------------------ Dated this the 5th day of October, 2009. JUDGMENT Petitioner is the registered owner of an auto rickshaw bearing registration No. KL-16D 6526. According to the petitioner, by Ext.P1 agreement executed on 28.10.2007, the vehicle was given on lease to the 4th respondent, on a daily rent of Rs.250/- and conferring responsibility for the proper maintenance and upkeep of the vehicle on the 4th respondent. While so, on 29.11.2007 at 1.45 p.m. the 4th respondent was arrested for having transported Indian Made Foreign Liquor in the vehicle. A reading of Ext.P3 order shows that, on inspection four one litter bottles and seven 375 ml. bottles containing IMFL were seized from the vehicle. Proceedings under the Abkari Act were initiated and finally by Ext.P3 order, the 2nd respondent directed release of the vehicle to the petitioner extending him the WP(c).No.23953/08 2 benefit of Section 67C(2) of the Abkari Act on the ground that the petitioner, being the registered owner, had taken all reasonable and necessary precautions against the vehicle, being used for carrying contraband liquor. 2. First respondent, initiated suo motu revision against Ext.P3 order, heard the petitioner and finally passed Ext.P4 order setting aside Ext.P3. In Ext.P4 the first respondent held that, admittedly at the time when the liquor was seized from the vehicle, the vehicle was in the custody of the driver and hence the connivance of the driver is proved beyond doubt. On this basis it has been held that, since the transportation of the liquor was with the full knowledge and connivance of the driver, who is the agent of the petitioner, provisions of Section 67C(2) is inapplicable and therefore Ext.P3 order was illegal. It was thereupon that challenging Ext.P4 this writ petition was filed by the petitioner. 3. The contention raised by the counsel for the petitioner is that, Section 67B(2) provides that in cases where vehicle WP(c).No.23953/08 3 has been used for commission of an offence under the Abkari Act, and that the authorized officer is satisfied that such vehicle is liable for confiscation under the Act, then only a vehicle can be confiscated. It is stated that Section 67C further provided a safeguarded to innocent owners like the petitioner. Counsel contends that neither in Ext.P3 nor in Ext.P4, did respondents 1 and 2 examine whether the vehicle is liable for confiscation, as required under Section 67B(2) of the Act. 4. On the other hand, the learned Government Pleader referring to the counter affidavit argued in support of Ext. P4. It is stated that, a reading of Ext.P4 order shows that according to the first respondent Ext.P1, the lease agreement allegedly executed by the petitioner in favour of 4th respondent, was a fabricated one. It is stated that since the agreement in question is a fabricated one petitioner could not have claimed the benefit of Section 67C at all and he himself had to be responsible for transportation of the contraband liquor and consequently vehicle is liable for confiscation. WP(c).No.23953/08 4 seizure. 5. On facts, it is evident that contraband liquor was seized from the auto rickshaw of which the petitioner is the owner. It is also not in dispute that at the time of its seizure, the driver was in control of the vehicle. Investigation was conducted by the authorities and the petitioner has not been arrayed as an accused in any of the penal proceedings. It is mainly on that basis, by Ext.P3, the 2nd respondent extended the petitioner the benefit of Section 67C(2) and directed release of the vehicle. This order has been set aside by the first respondent as per Ext.P4 and the reasoning adopted by the first respondent is that under Section 67C(2) what is required to be proved is that each of the persons mentioned therein should have taken reasonable and necessary precautions against the use of the vehicle for transportation of the contraband liquor. It is held by the first respondent that admittedly the liquor in question was seized at a time when the vehicle was in the custody of the driver, the petitioner's WP(c).No.23953/08 5 agent and therefore the requirement of the section that each of them should have taken reasonable precautions is not satisfied. 6. Although on facts I am inclined to agree with the first respondent, I would rather think that the question of applicability of Section 67C(2) arises only if requirement of Section 67B(2) are satisfied. Section 67B(2) reads as under. “Where an authorized officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorized officer under that sub- section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorized officer may whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorized officer may also order confiscation of all contents thereof.” 7. A reading of the above provision show that the authorized Officer should be satisfied that an offence under the Abkari Act has been committed in respect of or by means WP(c).No.23953/08 6 of the vehicle and further that because of the gravity of the offence, the vehicle is liable to be confiscated. Therefore, there should be a finding on each of the above two aspects. In this case neither in Ext.P3 nor in Ext.P4 is there any such discussion or finding. The ambit of Section 67B(2) has been examined by this court in Sasidharan V. State of Kerala (1980KLT 671, where in paragraph 4 it has been held as under. “In order that he may order confiscation of any property specified in S.67B(1)- only a property so specified is liable to confiscation by an abkari officer- the authorised officer has to be satisfied of two matters:(i) that an offence under the Act has been committed in respect of or by means of that property and (ii) such property, that is the property in respect of or by means of which an offence under the Act has been committed is liable to confiscation under the Act. In other words, from being satisfied of the first requirement, it does not follow that he can order confiscation, without being further satisfied, that on the facts and in the circumstances of the case, the property in question is liable to confiscation Mark,S 67B(2) is only permissive and not obligatory. Relying on State of M.P. V Azad Bharat Finance Co.(AIR 1967 SC 276) and Commercial Credit Corporation (P) Ltd., V. Union of India (1975 WP(c).No.23953/08 7 KLT (SN) 33) I have held so in Vijayan V. Asst. Excise Commissioner(1980 KLT 45). The very fact that the drastic action of ordering confiscation is to depend upon the satisfaction of the authorized officer in that behalf would go to show that the provision is only an enabling one and not a mandatory one. “ 8. The provision in Section 61A of the Forest Act which is identically worded came up for consideration before a Full Bench of this court court in State of Kerala V. Sukumara Panicker (1987(2) KLT 341, where the Full Bench also has upheld the position that it is for the Forest Officer to consider in each case whether the vehicle used for transportion of forest produce is liable for confiscation. Subsequently, following the aforesaid judgments, another Division Bench of this court considered Section 67 of the Abkari Act in Assootty V. Asst. Excise Commissioner (1988(2) KLT 16), where it has been held thus. “It has been consistently held by this court that the power under Section 67A of the Abkari Act is discriminatory. It is not mandatory that in all cases where an offence has been committed by means of the vehicle, the confiscation should WP(c).No.23953/08 8 necessarily follow. It is within the discretion of the concerned authority depending on the facts and circumstances of the particular case to apply its mind and to decide as to whether or not confiscation is called for. “ 9. A reading of the above judgments would lead to the conclusion that in all cases of seizure it is not mandatory that the vehicle used for transportation should be confiscated. On the other hand it is for the Officer concerned to examine the gravity of the offence committed and the other relevant circumstances, exercise his discretion and decide as to whether the vehicle should be confiscated or not. 10. In this case having gone through Exts.P3 and P4, I am satisfied that, although the fact that an offence has been committed using the vehicle is not in dispute there is no finding satisfying the requirements of Section 67B(2) of the Act. Therefore I am inclined to quash Ext.P4 order passed by the Ist respondent and direct the first respondent reconsider the issue with notice to the petitioner and in the light of the above discussion and pass fresh orders in the matter. It is WP(c).No.23953/08 9 directed that until the matter is reconsidered and orders are passed, the petitioner will be allowed to retain custody of the vehicle in terms of the interim order dated 8.8.2008 passed in this writ petition. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.23953/08 10