IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH DAY OF APRIL 2011/15TH CHAITHRA 1933 WP(C).No. 10534 of 2011 (N) --------------------------- PETITIONER(S): ------------- GOPALAKRISHNA RAI, S/O. NARAYANA RAI, MADAVU HOUSE, MADAVU.P.O KAYYAR VILLAGE, PUTTUR TALUK, KARNATAKA. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): -------------- 1. THE DEPUTY EXCISE COMMISSIONER, KASARAGOD - 670 001. 2. ADDITIONAL COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM - 695 001. 3. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM - 695 001. BY GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-04-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.10534/11 APPENDIX PETITIONER'S EXHIBITS: P1:COPY OF THE ORDER OF CONFISCATIION DATED 10.11.2009. P2:COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 1.6.2010. P3:COPY OF THE REVISION MEMORANDUM FILED BY THE PETITIONER BEFORE THE EXCISE COMMISSIONER, THRIRUVANTANTHAPURAM. P4:COPY OF THE ORDER DATED 20.12.2010 OF THE 3RD RESPONDENT. P5:TRUE COPY OF THE SHOW CAUSE NOTICE DATED 15.1.2008. P6:TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE ASSISTANT COMMISSIONER OF EXCISE DATED 5.2.2008. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.10534 OF 2011 -------------------------------------------- Dated this the 5th day of April, 2011 JUDGMENT The petitioner is the registered owner of a mini lorry bearing registration No.KA 21/3055. The said vehicle was seized on 5.11.2001 at about 11.30 a.m alleging that it was used for transporting 4200 packets each containing 100ml of arrack. The driver and two others travelling in the said vehicle were arrested and, crime No.197/2001 was registered at Adhur police station u/s 55(a) of the Abkari Act (for short 'the Act'). The vehicle was then produced before the Deputy Commissioner, Kasaragode, the first respondent. Thereupon, the first respondent issued notice to the petitioner to show cause why the vehicle should not be confiscated under Section 67B(2) of the Act and then, passed Ext.P1 order of confiscation. The petitioner preferred an appeal before the second respondent against Ext.P1. The said appeal was dismissed as per Ext.P2. Feeling aggrieved by Ext.P2, the petitioner took up the matter in revision before the Excise Commissioner u/s 67F of the Act. The said revision petition was also dismissed as per Ext.P4 order dated 20.12.2010. It is challenging Exts.P1, P2, and P4 that this Writ Petition has been filed. W.P.(C) NO.10534/2011 2 2. The contention of the petitioner is that while the aforesaid vehicle was proceeding towards arrack shops Nos.30, 82 and 83 in Karnataka State through Jalsoor road and enroute it had to cover a short distance through the State of Kerala. At any rate, the petitioner has failed to satisfy the respondent authorities that he had taken all necessary steps to avoid illegal use of the said vehicle. The vehicle was intercepted and 4200 packets each containing 100 ml of arrack was seized from it while it was in transit through the limits of the State of Kerala. In the circumstances, the contention of the petitioner that it was intended to be transported to arrack shop Nos.30, 82 and 83 in Karnataka State will not persuade this Court to interfere with the proceedings. 3. The petitioner has yet another contention. According to the petitioner, various provisions of the Act have been violated on account of the non-issuance of notice to the driver and other accused persons. It has to be noted that even in the revision petition, the petitioner has specifically contended that the driver of the vehicle and two others were arrested while transporting the above quantity of arrack. He did not have a case that those persons got no connection with him. At any rate, the petitioner was W.P.(C) NO.10534/2011 3 earlier issued with a notice and he himself has produced it as Ext.P5. In Ext.P5, it has been specifically stated that the mini lorry bearing registration No.KA 21/3055 with 4200 packets each containing 100 ml of arrack was seized on 5.11.2001 at about 11.30 am. As the R.C owner of the said vehicle, the petitioner was called upon to show cause why the vehicle should not be confiscated to Government as provided under section 67B of the Act. He was also intimated that he would be given an opportunity of being heard on request. Ext.P6 is the reply of the petitioner to Ext.P5 and it would reveal the contention of the petitioner. According to him, he is an Abkari contractor in Puttur taluk of Karnataka State. It is his case that arrack in question was under transit to arrack shop Nos.30, 82 and 83 in Karnataka. Against Ext.P1 order, the petitioner has preferred an appeal before the second respondent. Ext.P2 is the order passed thereon. Evidently, the appellate authority, while considering the appeal, framed the following:- 1. Whether the vehicle bearing registration No.KA 21/3055 mini lorry, was seized by the Police officials while transporting 4200 packets each W.P.(C) NO.10534/2011 4 containing100 ml of arrack? 2. Whether the order issued by the authorised officer, the Deputy Excise Commissioner, Kasaragode is as per the law? 4. After considering the aforesaid questions, they were answered against the petitioner. Mere assertion of absence of knowledge and connivance by the petitioner who is the RC owner of the vehicle in question is not sufficient to prevent the confiscation of the vehicle under Section 67B(2) of the Act. The petitioner has failed to discharge the onus under Section 67C(2) of the Act. It was in the said circumstances that the appellate authority refused to interfere with Ext.P1 and passed Ext.P2. At the same time, it was ordered that the vehicle could be permanently released to the petitioner provided he is willing to remit the market value of the said vehicle fixed by the Mechanical Engineer of Excise to the Government Account, in compliance with Rule 4(1)(a) and (b) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996. That order was also challenged in revision and the revision petition was dismissed as W.P.(C) NO.10534/2011 5 per Ext.P4. A scanning of the said order would reveal that the revisional authority had considered all the relevant aspects. The factum that the lorry was intercepted in the Kerala segment of the land is not under dispute. When that is admitted, the onus is on the petitioner to satisfy the conditions prescribed under Section 67C(2) of the Act that he has taken all sufficient steps to prevent misuse of the vehicle. The petitioner has not brought out a case warranting interference with Exts.P1, P2, and P4. The latter contention of the petitioner, as noted above, is also not sustainable. This Writ Petition is, therefore, liable to fail and accordingly, it is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.10534/2011 6 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.10534/2011 7