Kerala High Court
Ganesham Rajeswar Reddy vs State Of Kerala on 28 May, 2020
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942
WP(C).No.19473 OF 2018(H)
PETITIONER:
GANESHAM RAJESWAR REDDY
AGED 34 YEARS, S/O. NARAYANA REDDY GANESHAM, 3-2B,
THAPOVANAM, NARAYANAPURAM, ANANTAPURAM DISTRICT,
ANDRA PRADESH, PIN-515001
BY ADV. SRI.MATHEW KURIAKOSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, EXCISE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE COMMISSIONER OF EXCISE,
THIRUVANANTHAPURAM-695001.
3 THE ADDITIONAL EXCISE COMMISSIONER ENFORCEMENT,
KERALA, THIRUVANANTHAPURAM-695001.
4 THE DEPUTY COMMISSIONER OF EXCISE,
WAYANAD, PIN-673591.
5 THE EXCISE INSPECTOR,
EXCISE RANGE OFFICE, SULTHAN BATHERY,
WAYANAD DISTRICT, PIN-673592.
R3 BY SR. GOVERNMENT PLEADER SMT.SHEEJA C.S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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W.P.(C) No.19473 of 2018
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Dated this the 28th day of May, 2020
JUDGMENT
The vehicle, Mahindra XUV 500, bearing Registration No.AP-09-CK-8055, was seized at the excise check post, Muthanga, for illegal transport of 3.750 litres of Karnataka IMFL. The incident took place at 9.15 p.m. on 01.02.2017. The petitioner claims to be the owner of the said vehicle. In this writ petition, he challenges the order of confiscation by the fourth respondent Deputy Commissioner as affirmed by the third respondent Additional Excise Commissioner.
2. Heard Sri.Mathew Kuriakose, learned counsel for the petitioner and learned Senior Government Pleader for the respondents.
3. That the petitioner is not the registered owner of the vehicle in question, is admitted. The petitioner claims to have obtained ownership over the vehicle pursuant to transfers from the original registered owner as evidenced by Exts.P1 to P3 W.P.(C) No.19473 of 2018 :- 2 :-
documents. At the time of the incident in question, the vehicle was driven by one Swaminayaka. According to the petitioner, he along with his friends were travelling from Andhra to Vythiri, and enroute, the vehicle had a breakdown at Mysore. It was entrusted with a workshop at Mysore for repairs. On an arrangement with the workshop, the vehicle was agreed to be delivered to the petitioner who proceeded to Vythiri in another vehicle arranged by the workshop owner. The driver of the vehicle at the time of the incident was a mechanic from the workshop. The petitioner had not entrusted the vehicle to him nor is he is the agent of the petitioner. The workshop owner was in charge of the vehicle. The illicit liquor was transported in the vehicle without the knowledge or connivance of the petitioner. Accordingly he challenged the confiscation proceedings.
4. The Deputy Commissioner held the driver, Swaminayaka to be an agent of the owner of the vehicle and accordingly directed confiscation. The appeal filed by the petitioner was dismissed by the W.P.(C) No.19473 of 2018 :- 3 :-
Additional Excise Commissioner.
5. It is contended by the learned counsel for the petitioner that, though several factual aspects are involved in the proceedings, including ownership of the vehicle, the breakdown and entrustment with the workshop at Mysore, the transporting of the vehicle by the workshop through its mechanic to Vythiri etc. the petitioner did not get opportunity to substantiate his contentions by adducing necessary evidence.
6. In the proceedings of the Deputy Commissioner, it is stated that show-cause notice was issued to the petitioner and to his Advocate on 26.08.2017 but was returned by the postal authorities stating, "no such address was found". Therefore, the petitioner did not get opportunity before the Deputy Commissioner of Excise to adduce evidence to satisfy his defence under Section 67C(2) of the Abkari Act. The appeal was considered and disposed of on the available materials. Considering the factual issues involved and the fact that the burden of proof squarely rests on the W.P.(C) No.19473 of 2018 :- 4 :-
petitioner to satisfy the ingredients of the defence under Section 67C(2), I deem it appropriate that an opportunity be granted to the petitioner to adduce evidence to substantiate his contention against the proceedings for confiscation of the vehicle.
7. Accordingly, Exts.P5 and P6 orders are set aside. The 4th respondent, Deputy Commissioner of Excise, Vythiri, shall reconsider the matter and pass fresh orders after affording opportunity to the petitioner to adduce evidence in support of his contentions. The same shall be done as expeditiously as possible.
Writ petition is disposed of as above.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge WP(C).No.19473 OF 2018(H) APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMMUNICATION DATED 20.2.2017 ISSUED BY M/S. AKKEN TECHNOLOGIES PVT. LTD, HYDERABAD TO THE EXCISE DIVISION OFFICE, WAYANAD, MEENANGADI EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGMENT DATED 28.5.2015 ISSUED BY M/S. S.K. CAR LOUNGE, HYDERABAD EXHIBIT P3 TRUE COPY OF THE DELIVERY NOTE DATED 10.8.2015 SIGNED BY THE PETITIONER AND REPRESENTATIVE OF M/S. S.K. CAR LOUNGE EXHIBIT P4 TRUE COPY OF THE TAX INVOICE DATED 1.2.2017 ISSUED BY M/S. I.G. WORKSHOP, MYSORE EXHIBIT P5 TRUE COPY OF THE ORDER NO. W5-756/17 DATED 11.12.2017 PASSED BY THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER NO. 20/APL/2018 DATED
27.3.2018 PASSED BY THE 3RD RESPONDENT .....