IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 WP(C).No. 38286 of 2010(I) --------------------------------------- PETITIONER(S): ------------------------ KOCHAPPU, S/O.MOTTATH THOMUNNY, PUNNAYOORKULAM VILLAGE,KADIKKAD DESOM, CHAVAKKAD TALUK. BY ADV. SRI.V.C.MADHAVANKUTTY RESPONDENT(S): ------------------------- DEPUTY EXCISE COMMISSIONER EXCISE DIVISION OFFICE THRISSUR 680003. BY GOVT. PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.38286 OF 2010 -------------------------------------------- Dated this the 21st day of January, 2011 JUDGMENT The petitioner who is the owner of an autorikshaw bearing registration No.KL-46C 2749 filed this Writ Petition mainly seeking for issuance of writ of mandamus commanding the respondent to accept Ext.P6 bank guarantee and to give interim custody of the aforesaid autorikshaw. Ext.P2 would reveal that the Excise Inspector has seized 80 litres of Indian made foreign liquor from the aforesaid autorikshaw belonging to the petitioner while it was on transportation for sale. One Mr.Sunil was driving the said vehicle at the relevant point of time. In Ext.P2 notice itself, the petitioner was required to show cause why he should not be arrayed as an accused in the case. Later, the petitioner moved Ext.P4 petition dated 11.5.2010 for getting interim custody of the vehicle. Ext.P5 is the bank guarantee produced by the petitioner for getting interim custody of the vehicle. However, after considering Ext.P4 petition, Ext.P8 notice has been served on the petitioner refusing to accept the bank guarantee and intimated him that he would be getting interim custody of W.P.(C) NO.38286/2010 2 the vehicle in case he complies with the conditions in terms of provisions under Rule 4(2)(a) of the Kerala Abkari (Disposal of confiscated Articles) Rules, 1996 (for short 'the Rules'). It is challenging Ext.P8 that this Writ Petition has been filed. 2. Evidently, the petitioner is relying on the decision of this Court reported in Aji Kumar v. Asst. Excise Commissioner (1999 (1) KLT 132). Essentially, the contention of the petitioner is that the above named person Mr.Sunil hired the aforesaid vehicle and he had attempted to transport the Indian made foreign liquor without his consent. Therefore, according to him, the case is squarely covered in his favour by the decision in Aji Kumar's case (supra). 3. The learned Government Pleader, upon instructions, submitted that the petitioner is the second accused in crime No.9/2010 of Chavakkad Excise range. It is further stated that the aforementioned Mr.Sunil is the first accused therein. In the said circumstances, I am of the considered view that the petitioner cannot place reliance on the decision in Aji Kumar's case (supra) for getting custody of the aforesaid autorikshaw. The learned counsel for the petitioner has also placed reliance on the decision of this Court reported in Prasad v. S.I of Police (2000 (2) KLJ 195. In view of the submission made by the learned Government Pleader that the W.P.(C) NO.38286/2010 3 petitioner is the second accused in the aforementioned crime, I do not think that the said decision cannot improve the case of the petitioner. In fact, a Division Bench of this Court in W.P.(C).No. 35588/2010, after considering the decision in Aji Kumar's case (supra) and also Prasad's case (supra) held that when a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. Admittedly, Rule 4(2) (a) of the Confiscation Rules provides the manner in which the interim custody of a vehicle involved in a crime could be released. After considering all aspects of the matter including the decision in Aji Kumar's case (supra) and also Prasad's case (supra), it was held by the Division Bench that the power under article 226 of the Constitution of India could not be asked for, or granted, as a matter of course in matters relating to the release of vehicles involved in alleged abkari offences. In view of th facts obtained in this case, I am of the view that there is no exceptional circumstance warranting interference with Ext.P8. There is no merit in the Writ Petition and accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.38286/2010 4 C.T. RAVIKUMAR, J. JUDGMENT W.P.(C) NO.38286/2010 5 September, 2010