Kerala High Court
Nazeer M.P vs State Of Kerala And Others on 5 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
WP(C) NO. 27738 OF 2011
PETITIONER:
NAZEER M.P.,S/O.PAREEKUNJU, AGED 31 YEARS,
MANAPATTU HOUSE,PINARMUNDA,PERINGALA,,
PALLIKARA,ERNAKULAM,PIN-683565.
BY ADV SRI.PAUL K.VARGHESE
RESPONDENTS:
1 STATE OF KERALA AND OTHERS
EXCISE DEPARTMENT,GOVERNMENT SECRETARIAT,,
THIRUVANANTHAPURAM-PIN-01.
2 EXCISE COMMISSIONERTRIVANDRUM-PIN-01.
3 ADDITIONAL EXCISE COMMISSIONER
TRIVANDRUM-PIN-01.
4 DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION OFFICE,KACHERYPPADY,,
ERNAKULAM-PIN-18.
OTHER PRESENT:
BY GOVERNMENT PLEADER SRI.A S DHEERAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C)No.27738 of 2011
2
JUDGMENT
The petitioner, the registered owner of Toyota Innova Car bearing registration No.KL 40/A/8805 has filed this writ petition seeking to quash Exhibits P2 and P4 orders of the Deputy Commissioner of Excise and the Excise Commissioner, respectively. The short facts necessary for the disposal of the writ petition are as follows:-
2. On 15.03.2009, the Sub Inspector of Police, Palarivattom seized 1015 litres of spirit from a compound near Vennala and the Innova Car mentioned above was also seized in this connection by the Assistant Commissioner of Police. On 17.03.2009, an abkari case as Crime No.401 of 2009 was registered under section 55(a) of the Kerala Abkar Act 1 of 1077. After all the legal formalities, the seized vehicle was confiscated by the Government by proceedings of the 4th respondent vide Ext.P2 order. Ext.P2 order was challenged in revision and was confirmed by the Excise Commissioner. Earlier, an application Crl.M.P.613 of 2009 WP(C)No.27738 of 2011 3 under Section 451 of the Code of Criminal Procedure filed before the Judicial First Class Magistrate Court-1, Ernakulam in Crime No.401 of 2009 of Palarivattom Police Station for release of the vehicle in question, was dismissed by the learned Magistrate in view of Section 67B of the Abkari Act, holding that since the confiscation proceeding was pending, interim custody cannot be granted . The said order was challenged before this Court and by order in Crl.M.C.No.1795 of 2009 dated 09.6.2009, the application was allowed on finding that the prosecution, at that point of time did not have a case that the car was used for committing any abkari offence with the connivance or knowledge of the petitioner and thus, interim custody was directed to be granted to the petitioner subject to certain conditions.
3. Learned counsel for the petitioner submitted that the vehicle was given by the petitioner to one Shine on 13.03.2009 by entering into an agreement for lease and the vehicle had to be returned on 18.03.2009. He further WP(C)No.27738 of 2011 4 submits that it was the petitioner who through GPRS traced the location of the vehicle and complained to the police, which resulted in them seizing the vehicle.
4. Learned Government Pleader on the other hand submitted that there has been illegal transport of spirit and the confiscation proceeding was a consequence of such an offence being committed and the same showed the petitioner's involvement as the registered owner and that Exts.P2 and P4 orders does not suffer from any infirmity.
Heard the learned counsel for the petitioner and the learned Government Pleader and perused the records.
5. After hearing the learned counsel on either side, I am of the firm view that Exhibits P2 and P4 order cannot be sustained for multiple reasons.
6. It is pertinent to note that, the petitioner was not arrayed as an accused despite being the owner of the vehicle. There is no change in circumstance after Ext.P1 order, as no material was brought out in investigation to implicate the WP(C)No.27738 of 2011 5 petitioner. The fact that the registered owner was not made an accused in the abkari offence would only have been because of the lack of proof to show his involvement in the offence.
7. It is trite that to have the vehicle confiscated, it ought to be established that the owner of the vehicle has prior knowledge or, in the alternative, he should be a party to the offence which will connote his active involvement and till it is not established that the owner of the vehicle has knowledge or that he has connivance with the person or in illegally transporting any contraband, merely because his vehicle was involved in the offence, he cannot be penalised.
8. The petitioner also finds support in the decisions of this Court in Suraj K.R. v. Excise Inspector, Thrithala and Others [2013(2) KHC 211], Ravichandran v. Excise Inspector [2015(1) KLT 218], New India Assurance C. Ltd v. State of Keala [2011(1) KLT 429] as well as Rajesh.K. v. Sub Inspector of Police, Palakkad and Others [2015(4) WP(C)No.27738 of 2011 6 KHC 253].
9. Equally, when it is shown that the owner had no control or activities that took place using the vehicle, it cannot be assumed that the vehicle was entrusted with an intention to commit the offence of carrying contraband articles, and thus an order of confiscation of vehicle cannot be made automatically for the reason that an offence has been committed make use of the vehicle.
10. The petitioner in the instant case cannot be said to have given the vehicle for any illegitimate purpose. The inference made in Exhibits P2 that the vehicle was fitted with coil spring for carrying heavy load and this additional fitting could not have been carried out without the knowledge of the RC owner is made without anything on record to support such conclusion. The revisional order, Ext.P4 notices that fact that the petitioner was not made an accused, but confirmed Ext.P2 order with hardly any independent finding. I cannot find any reason to accept the findings in Exhibits P2 and P4. WP(C)No.27738 of 2011 7
11. In the circumstances, I hold that the orders passed by the Deputy Commissioner of Excise as well as for the Excise Commissioner confiscating the vehicle cannot be sustained and are contrary to the provisions of sections 67B and 67C of the Abkari Act. Resultantly, Exts.P2 and P4 orders are quashed. Needless to say, if the petitioner has provided any security for getting the interim custody of the vehicle, such security shall be released to the petitioner.
Writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P. JUDGE dlk 5.11.2021 WP(C)No.27738 of 2011 8 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE JUDGMENT IN CRL.M.C.NO.1795/2009 OF THE HON'BLE HIGH COURT, ERNAKULAM DATED 9.6.2009 EXHIBIT P2: TRUE COPY OF THE ORDER OF THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM NO. E7.2856/09 DATED 30.03.2010 EXHIBIT P3: TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE EXCISE COMMISSIONER, TRIVANDRUM DATED 10.06.2011 EXHIBIT P4: TRUE COPY OF THE ORDER OF THE EXCISE COMMISSIONER, TRIVANDRUM NO.XA4 - 15038 DATED 3.9.2011 EXHIBIT P5: TRUE COPY OF THE NOTICE NO.E7.2856/09 OF THE EXCISE DEPUTY COMMISSIONER, ERNAKULAM DATED 29.9.2011 RESPONDENTS EXHIBITS EXHIBIT R4(a): TRUE COPY OF THE INVESTIGATION REPORT. EXHIBIT R4(b): TRUE COPY OF THE APPEAL PETITION WAS REJECTED IN ACCORDANCE WITH LAW.