Achamma Varghese v. Assistant Excise Commissioner, Alappuzha; Additional Commissioner of Excise, Thiruvananthapuram; Commissioner of Excise, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 17484 of 2004(F) -------------------------- PETITIONER(S): --------------- ACHAMMA VARGHESE, KOCHUVEETTIL ANNEXE, MAVELIKKARA. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): --------------- 1. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. 2. ADDITIONAL COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER T.T.MUHAMOOD FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON 24/01/2011 DELIVERED THE FOLLOWING: pm 2 ## APPENDIX ## PETITIONER'S EXHIBITS: - EXT.P1 - A TRUE COPY OF THE ORDER DATED 23-7-2002 ISSUED BY THE 1ST RESPONDENT. - EXT.P2 - A TRUE COPY OF THE PROFORMA AND DECLALRATION SIGNED B Y THE RENTEE WHO TOOK THE CAR ON 8-7-2002 FROM THE PETITIONER - EXT.P3 - A TRUE COPY OF THE ORDER DATED 5-11-2003 ISSUED BY THE 1ST RESPONDENT. - EXT.P4 - A TRUE COPY OF THE PROCEEDINGS DATED 26-4-2004 ISSUED BY THE 2ND RESPONDENT. - EXT.P5 - TRUE COPY OF THE LETTER DATED 25-5-2004 RECEIVED BY THE PETITIONER FROM THE 3RD RESPONDENT. ## RESPONDENTS EXHIBITS: NIL // True Copy // PA TO JUDGE ## **T.R.RAMACHANDRAN NAIR,J. ------------------------------------W.P.(C)No.17484 Of 2004** ## **----------------------------------------------------DATED THIS THE 24[th] DAY OF JANUARY, 2011** **J U D G M E N T** This Writ Petition is filed by the petitioner aggrieved by the confiscation of a car, owned by the petitioner, under Section 67B of the Abkari Act. 2. The petitioner, a retired School Teacher,who is hailing from a respectable family in Mavelikkara had started a self employment scheme of 'rent a car', to be let out to persons whom she knows personally. It is the case of the petitioner that on 8.7.2002, one Girish approached the petitioner to get the car on rent for the purpose of a marriage to be held on 9.7.2002. Therefore, the car, namely, having registration No.KL-4.H 2244 was given on daily rent of Rs.700/-. A declaration was obtained from the said person also. 3. It appears that on the next day, it was involved in an abkari offence as CR.No.64/2002 of Venmony Police Station. One of the accused involved is Girish. 4. In the case registered by the police, the petitioner is not an accused. After knowing about the details, the petitioner W.P.(C)No.17484/04 -2- filed an application for getting the release of the vehicle which was granted subject to certain conditions. But, finally by Exhibit P3 order, overruling the objection raised by the petitioner, the vehicle was ordered to be confiscated. An appeal filed was also rejected. 5. Exhibit P2 is the copy of the proforma and declaration signed by the rentee who took the car on 8.7.2002 from the petitioner. It is the case of the petitioner, therefore, that reasonable and necessary precautions were taken by the petitioner in the matter. The petitioner further contends that the vehicle was used for the crime without the knowledge and consent of the petitioner. Actually, the car was rented out for a marriage function. 6. The learned counsel for the petitioner invited my attention to Exhibit P2 and the terms and conditions provided therein. It is an agreement signed by Mr.Girish and he has made a declaration also that the terms and conditions therein are acceptable to him. It is stated that the agreement was produced along with an affidavit before the authorities concerned. It is therefore pointed out that the bonafides of the petitioner are W.P.(C)No.17484/04 -3- clear from the transaction itself. 7. The learned counsel for the petitioner relied upon the decisions of this court in **VIJAYAN v. ASST. EXCISE COMMISSIONER (1980 KLT 45)** as well as **VAMADEVAN PILLAI v. STATE OF KERALA (1982 KLT 518).** It is further pointed out that the finding that the person in charge of the vehicle did not take reasonable caution is not correct, as the petitioner was not at all involved. It is, therefore, submitted that the finding that Girish has not taken any reasonable and necessary precaution and which is shown as a reason for confiscation cannot therefore be accepted. 8. Evidently, the authorities concerned proceeded on the assumption that since the vehicle was involved in an offence and as the registered owner has not proved that the car was used for carrying contraband spirit without her knowledge and connivance, there can be an automatic seizure of the same. 9. A reading of Exhibit P3 order will show that the vehicle was seized along with the spirit at 1.30 a.m. on the crucial day. It was found that the transportation was in contravention of the Abkari Act and Rules and there was no valid document also. Even though the plea submitted by the petitioner was that she is W.P.(C)No.17484/04 -4- a retired teacher and that the car was being let out to whom she knows personally and that Mr.Girish had actually taken the car on rent and that she is not the accused in the case also, what is found objectionable is that going by the charge sheet submitted by the Investigation Officer, it is proved beyond doubt that the at the time of transporting the spirit, Mr.Girish was the driver in charge of the vehicle and it was with his full knowledge and connivance and that he has not taken any precautionary measures against the misuse of the vehicle who hired it from the registered owner. The same view was taken in Exhibit P4 also. 10. It cannot be said that the petitioner is the registered owner in possession of the vehicle. It is not a case that the car was sold or transferred for consideration. It was only given by way of a 'rent a car' arrangement. Therefore, the question is whether the view taken that Girish being the person in charge of the vehicle, the second limb of Section 67C of the Abkari Act will not help the case of the petitioner is correct. Evidently, the question whether there are any guidelines under sub-section (2) of Section 67C to test the requirements for considering the effective nature of precautionary measures was considered by W.P.(C)No.17484/04 -5- this Court in **Vijayan's case(** supra). After reviewing the case law on the various aspects, this Court laid down thus in paragraph 5: “5 . The following propositions emerge from the above discussion:-(i) to confiscate a conveyance under S.67C of the Act, it is necessary that its owner, his agent or the person to whom it is entrusted by him should have a guilty mind (mens rea), though not to the extent of an intention on his part to commit the Abkari Offence of carrying contraband goods therein or to abet the same, at least to the extent of knowingly and willingly permitting its user for the carriage of such goods; (ii) the onus is on the owner to establish absence of any guilty mind and not on the department to prove its presence; (iii) the owner, his agent and the person in charge of the conveyance should also have taken all reasonable and necessary precautions against such use; (iv) here again, the burden of proof is upon the owner to prove that each of them had exercised reasonable and necessary precautions against such use; (v) there are no rules specifying the nature of the precautions to be taken by them, the only guideline in that behalf being that all reasonable and necessary precautions should W.P.(C)No.17484/04 -6- be taken; (vi) S.67B(2) is only permissive and not obligatory (this sub-section uses only the word ‘may’ and not ‘shall’, even which word was construed by the Supreme Court in the above-mentioned case, as only permissive and not obligatory); (vii) it is a penal provision and should be construed in such a way that an innocent person is not visited with a penalty; and (viii) a very strict and rigid construction of the provision in S.67B (2) may lead to absurdity and unconstitutionality. It is bearing in mind all these aspects that the question of ordering confiscation of a stage carriage from which contraband liquor was detected in a Suit-Case and in a packet, both admittedly belonging to a passenger travelling in it, is to be considered.” It is therefore evident from the above tests that the true attempt should be to find out whether the owner or the agent has got a guilty mind and whether the carriage of goods was knowingly and willingly permitted. It is also stated that the owner, his agent and the person in charge of the conveyance should also have taken all reasonable and necessary precautions against such use. It was observed that there are no rules specifying the nature of W.P.(C)No.17484/04 -7- the precautions to be taken by them and only guideline in that behalf is that necessary precaution should be taken. 11. Herein, admittedly, Mr.Girish is not the agent of the petitioner. The circumstances of the transaction between the petitioner and Girish is amply proved by the documents produced by the petitioner along with the affidavit. There is no contra evidence to dispute the same also. As is clear from the finding in paragraph No.5 of the decision in **Vijayan's** case(supra), a very strict and rigid construction of the provision in S.67C (2) may lead to absurdity and unconstitutionality. It is a case where the order of confiscation is made only for the reason that the person who used the vehicle has not taken any reasonable and necessary precaution. He being the accused, it is only a technical application of the said limb of the provision ignoring the fact that actually the petitioner,the owner had taken necessary precautions in the matter. It is only natural that a vehicle is let out for marriage purposes to a person in whom the owner has got confidence. Herein, actually the vehicle was rented out after receiving Rs.700/- as rent also. The petitioner being a retired school teacher belonging to a respectable family had only obliged W.P.(C)No.17484/04 -8- the person, who was acquainted with her. Therefore, so far as the plea of the petitioner is concerned, there cannot be any dispute at all about the bonafides. To insist that Mr.Girish should also have taken reasonable care and precaution will only lead to an absurdity in the sense that he himself is the accused in the criminal case. Therefore, the said requirement cannot be put against the said person. If that be so, the findings rendered in the impugned orders cannot be supported. 12. The learned counsel for the petitioner also relies upon the decision of a Division Bench of this Court in **VAMADEVAN PILLAI v. STATE OF KERALA** (supra) wherein it was held that the exercise of the discretion must be on proper and relevant considerations. If an authorised officer takes the view that merely because commission of offence is proved and the conveyance is liable to confiscation under the Act he is obliged, irrespective of the facts of the case, to order confiscation such a view would be erroneous and unsustainable. 13. Going by the facts, the said dictum will also apply to this case. Therefore, after considering the document produced by the petitioner before the authorised officer by way of Exhibit P2 W.P.(C)No.17484/04 -9- as well as the affidavit, it cannot be disputed that the petitioner has taken all reasonable and necessary precautions in the matter. Therefore, the 2[nd] limb of Section 67C squarely applies to the facts of this case. In that view of the matter, the impugned orders cannot be supported and Exhibits P3 and P4 are quashed. The Writ Petition is allowed. In the light of the above, the vehicle bearing registration No.KL-4H-2244 owned by the petitioner is not liable for any confiscation for involvement in the Abkari offence. It is pointed out that the vehicle was released on furnishing a bank guarantee for the value of the vehicle. In the light of the fact that Exhibits P3 and P4 are quashed, the petitioner is relieved from the obligation to the bank guarantee. No costs. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn ## **True copy** **P.A.to Judge**