Kerala High Court
Lal vs Asst. Excise Commissioner on 7 December, 2000
JUDGMENT R. Bhaskaran, J.
1. Petitioner is the owner of a mini lorry. The lorry was seized by the police in connection with and abkari offence. The offence alleged is that more than the quantity of toddy permitted by the Toddy Transport Permit was transported in the lorry. Petitioner had filed O.P. No. 634/1999 and got temporary release of the vehicle subject to confiscation proceedings.
2. The first respondent by Ext. P4 notice issued to the driver and cleaner of the lorry directed them to show cause why the vehicle shall not be confiscated. Petitioner being the owner of the vehicle submitted a reply and he wanted to examine the accused in the criminal case, the Circle Inspector of Police who seized the vehicle and the two mahazar witnesses. Ext. P5 is the representation made by petitioner to the first respondent. The case of petitioner is that he had the permit to transport 2550 litres of toddy and what was transported was only 2400 litres and when one permit was shown to the Circle Inspector of Police, he did not accept the same and registered the case, suppressing the permit. Therefore, petitioner wanted an opportunity to examine certain witnesses. After receipt of Ext. P5, petitioner was called for a personal hearing as per Ext. P6. On the day posted for the personal hearing, the case was adjourned without any reason. Thereafter, petitioner received Ext. P7 informing him that the confiscation proceedings cannot be equated with a criminal trial and the request for examining the concerned parties cannot be considered. Petitioner is challenging Ext. P7 by which he is refused permission to examine witnesses in the confiscation proceedings.
3. Therefore, the question to be considered in this Original Petition is whether in a confiscation proceeding, permission for examining witnesses or to cross-examine the witnesses can be denied.
4. Learned counsel for petitioner relied on the decision of this Court reported in Karan Vir Mehta v. Collector of Customs, Cochin (1998 (97) ELT 42 (Kerala)). In that case, confiscation proceedings under the Custom Act was initiated. The case of the Customs authorities was that there was misdeclaration with regard to the value furnished by the importer in the bill of entry and the goods are liable for confiscation. The Customs Authorities were relying on the opinion of Shri. Gopalakrishnan submitted to the Assistant Director of Intelligence in which he has stated that the photocopier parts which came from abroad in 92 cases in the name of M/s. Shine Star Industries, New Delhi were found to be photocopier parts of Cannon NP 270/305 models, and that these parts can be assembled into photocopiers. The petitioner had requested for an opportunity to cross-examine Shri. Gopalakrishnan before his opinion was accepted. But no such opportunity was afforded to the petitioner. It was held by this Court that denial of opportunity to the petitioner to cross examine Shri. Gopalakrishnan in spite of his request is an act of violation of the principles of natural justice. It was further held that no finding can be based on the hearsay opinion evidence of a person whose credibility as an expert has not been duly established.
5. Sasidharan v. State of Kerala (1980 KLT 670) is a case arising under the Abkari Act itself. George Vadakkel, J. held that S. 67B (2) of the Abkari Act is only an enabling provision and not a mandatory provision for ordering confiscation. It was held in that case as follows:
"The enquiry envisaged by S. 67C (1) of the Act is not a mere formality. Under the provision, the show cause notice shall mention the grounds on which the property is proposed to be confiscated, and the person to whom it is issued is to be afforded an opportunity to submit a written representation, and further, a reasonable opportunity of being heard. I do not think that merely by putting certain questions to the person who in response to the show cause notice, appears at the time of hearing and eliciting from him answers there to which will obviously be what have been already stated in the written representation submitted by him earlier and in denial of the grounds mentioned in the show cause notice, the authorised officer complies with the requirement of affording him reasonable opportunity to be heard. Unless he is informed of the materials on which the grounds are rested and is afforded an opportunity to controvert these materials, it cannot be said that a reasonable opportunity of being heard in the matter has been given to him. Except on being informed of as to who all are the attesting witnesses and what they said on being interrogated by the authorised officer, the person who appears for hearing pursuant to a show cause notice issued under S. 67C(1)(a) to him, would not be in a position to comment on their evidence or to contradict. In such cases, he is not afforded reasonable opportunity of being heard in the matter".
6. Learned counsel for petitioner also relied on the decision of the Karnataka High Court reported in M. Krishnagouda v. Authorised Officer & Superintendent of Excise, Gulbarga (ILR 1996 Kar. 1951). The Karnataka High Court was considering the scope of S. 43A and 43B of the Karnataka Excise Act which is similar to S. 67 of the Kerala Abkari Act. The Karnataka High Court held that under the enquiry it was incumbent upon the authorised officer to have got marked the mahazar under which the property is said to have been seized and to examine the mahazar witnesses, if any, in order to satisfy himself about the alleged contravention. No such evidence has been recorded. Consequently, the order of confiscation was set aside.
7. In the light of the law laid down by this Court and also by the Karnataka High Court, the reasoning in Ext. P7 that witnesses cannot be examined as if in a criminal case and refusing the request of petitioner to examine witnesses is incorrect and unsustainable. No doubt, the petitioner could have waited for the completion of the confiscation proceedings in the manner in which it is now conducted and could have asked for setting aside the confiscation proceedings. But he has approached this Court to set right the mistake and to give an opportunity to prove the innocence. I do not find any reason to deny the request of the petitioner. If an opportunity is given to petitioner he can prove that he had requisite permit for transporting toddy as was found to be transported by the Circle Inspector of Police and he could have also cross-examined the mahazar witnesses and brought out the truth.
In the above circumstances, I allow the Original Petition and quash Ext. P7 communication and direct the first respondent to give an opportunity to the petitioner to examine the witnesses as requested for by him in Ext. P5 representation.