IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 10332 of 2007(E) -------------------------- PETITIONER(S): --------------- T.SUMITHA, AGED 27 YEARS, W/O.K.P.VINOD, KARATTAPARAMBIL HOUSE, MELMURI P.O., MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): --------------- 1. THE ASSISTANT EXCISE COMMISSIONER, MALAPPURAM. 2. THE ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. K.R. DEEPA FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.10332 OF 2007 ---------------------------------------- Dated this the 15th day of October, 2008 JUDGMENT The petitioner is the owner of an autorickshaw. The autorickshaw was seized on allegations of commission of an abkari offence using that vehicle. Confiscation proceedings were initiated, which resulted in Ext.P2 order confiscating the vehicle to the Government. The petitioner approached this Court by filing a writ petition, in which the appellate authority was directed to dispose of the appeal filed by the petitioner. Pursuant thereto, the appellate authority passed Ext.P5 order, whereby the petitioner's appeal was rejected and the confiscation was confirmed with some modification to the effect that the vehicle may be returned on payment of the market value of the vehicle. The Excise Commissioner passed a further proceedings, Ext.P6 rejecting a petition dated 8.1.2007 filed by the petitioner in this regard. There is a dispute as to whether the petitioner had filed an application dated, 8.1.2007 or not. According to the petitioner, the petitioner filed Ext.P7 revision dated 10.10.06. I W.P.(c)No.29835/08 2 need not consider that dispute in so far as the Supreme Court has finally held that no revision is maintainable against the appellate order under the Abkari Act in the decision State of Kerala V. Avinasiappan [2004(1) KLT 867]. The incident, which led to the confiscation proceedings happened as follows:- 2. The vehicle was apprehended along with 2.5 litres of arrack at a time when three persons and the driver were allegedly consuming liquor inside the autorickshaw. Since possession of arrack is prohibited under the Abkari Act and consumption of liquor in a public vehicle is an offence under the Abkari Act, confiscation proceedings were initiated which resulted in the impugned orders. 3. The petitioner's contention is that the petitioner had specifically contended that she had no knowledge about the use of the vehicle for commission of the offence alleged and she had taken all precautions against such illegal use of the vehicle and in such circumstances, the confiscation proceedings are unsustainable. 4. The respondents have filed a counter affidavit supporting the impugned orders. W.P.(c)No.29835/08 3 5. It is not disputed before me that the autorickshaw contained 2.5 litres of arrack and that three persons were consuming liquor in the autorickshaw. Of course, originally, the allegation was that the driver also consumed liquor, but in the criminal proceedings, the driver had been acquitted and the other three persons were convicted. That being so, it cannot now be disputed that the autorickshaw in question had been used in the commission of an abkari offence. In such circumstances, the confiscation proceedings can be challenged by the petitioner only by proving the ingredients of Section 67C(2) of the Abkari Act. Under Section 67C(2) in order to avoid the confiscation proceedings, the petitioner must prove that the transportation of the arrack and consumption of the same in the autorickshaw were without the knowledge or connivance of the owner or her agent and the person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such illegal use. The onus of proving the same is squarely on the petitioner. So the minimum the petitioner had to do, to avoid the confiscation proceedings, was to prove the ingredients of Section 67C(2) of the Abkari Act. In this case, apart from filing an objection, the W.P.(c)No.29835/08 4 petitioner had not taken any steps in that regard. She did not even offer to give oral evidence in support of her case that she had no knowledge or connivance in the commission of the offence and that she had taken all necessary precautions against such illegal use of the vehicle. Without proving the same, the petitioner cannot succeed in the challenge against the impugned orders. Admittedly, apart from filing the objections, no proof whatsoever was offered by the petitioner in this regard. That being so, the onus cast upon the petitioner under Section 67C(2) of the Abkari Act has not been discharged. Without discharging the same, the petitioner cannot successfully challenge the impugned orders. Therefore, I do not find any merit in this writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.29835/08 5