Asharaf v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943 WP(C) NO. 27635 OF 2015 ## PETITIONER: ASHARAF,AGED 27 YEARS S/O.ALIYAR, EDAPPARA HOUSE, MANATHANA, PERAVOOR PO, IRITTY TALUK, KANNUR DISTRICT, PIN-670 673 BY ADVS. SRI.ABU MATHEW SRI.AJU MATHEW SRI.ABHILASH MATHOOR ## RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT), OFFICE OF THE ADDITINAL COMMISSIONER OF EXCISE, 2ND FLOOR, EXCISE HEADQUARTERS, NANTHAVANAM, THIRUVANANTHAPURAM DISTRICT, PIN-695 033 2 THE DEPUTY EXCISE COMMISIONER EXCISE DIVISION OFFICE, KANNUR, CIVIL LANE, F-BLOCK, CIVIL STATION P.O, KANNUR DISTRICT, PIN670 001 BY GOVERNMENT PLEADER SMT.SHEEBA G. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.02.2022, THE COURT ON 21.02.2022 DELIVERED THE FOLLOWING: W.P.(C) No.27635 of 2015 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.27635 of 2015 .................................................................** Dated this the 21[st] day of February, 2022 ## **JUDGMENT** The Writ Petition is filed challenging Ext.P1 order issued by the Additional Excise Commissioner (Enforcement) whereby the appeal submitted by the petitioner against the order of the 2[nd] respondent confiscating the vehicle of the petitioner bearing Reg No.KL-58 M 7464 for involvement in an abkari case, Crime No.103 of 2014 of Peravoor Excise Range was rejected. 2. It is averred in the Writ Petition that the petitioner is the owner of a vehicle, APE Diesel three-wheeler (A/R), bearing Registration No.KL-58 M 7464. The said vehicle was involved in a crime registered by the Peravoor Excise Range as Crime No.103 of 2014 under Sections 58 of the Abkari Act on the allegation that on 21.12.2014 the Preventive Officer and the Excise party found the petitioner transporting 10 liters of Indian Made Foreign Liquor in 20 bottles of 200 ml each for sale. The contraband liquor was seized and the vehicle was taken into custody and produced before the 2nd respondent for initiating confiscation proceedings under Section 67B of the Abkari Act. Immediately W.P.(C) No.27635 of 2015 3 thereafter the petitioner has approached the Judicial Magistrate of First Class Court, Koothuparamba and as per order dated 28.01.2015 in an application filed as C.M.P.No.161 of 2015, the vehicle was temporarily released to the petitioner. In the confiscation proceedings a show cause notice was issued to the petitioner to explain as to why the vehicle should not be confiscated. Petitioner appeared before the 2[nd] respondent and contended that he has been falsely implicated in the said crime. It is further averred that no copy of the report of the Preventive Officer of Excise was served on the petitioner in spite of a request made on that behalf and that without giving an opportunity to file a detailed objection and even without granting sufficient opportunity to produce witnesses before the confiscating authority, on 12.05.2015 the 2nd respondent passed an order confiscating the vehicle. Aggrieved by the said order the petitioner has preferred an appeal before the Additional Excise Commissioner (Enforcement) under Section 67E of the Abkari Act and the said appeal was disposed of as per Ext.P1 order upholding the order of confiscation and with a direction that the vehicle would be released to the petitioner on depositing the market value of the vehicle. Pursuant to Ext.P1 order in the appeal, Ext.P2 notice dated 04.09.2015 was issued, whereby the petitioner was directed to surrender the vehicle before the Deputy Excise Commissioner for initiating further confiscation proceedings. It is thus aggrieved, the present writ petition is filed. W.P.(C) No.27635 of 2015 4 3. A detailed counter affidavit was filed on behalf of the 2[nd] respondent. It was contended that the Judicial Magistrate of First Class, Koothuparamba has ordered temporary release of the vehicle on condition that the petitioner should furnish a bond for Rupees one lakh. The contention that the petitioner was not granted sufficient opportunity to defend the confiscation proceedings is not correct in as much as notice was issued to the petitioner in the said proceedings and he has received the notice on 16.03.2015. Thereafter the petitioner has submitted an application through his lawyer on 26.03.2015 seeking more time to file reply to the notice and thereafter on 22.04.2015 he appeared before the 2[nd] respondent for a personal hearing. In the said hearing the petitioner submitted Ext.R2(a) statement practically admitting the allegations against him. It is only after completing all the legal formalities that the order was issued on 12.05.2015 confiscating the vehicle as per Section 67B(2) of the Abkari Act. It is only to initiate further proceedings pursuant to the confiscation order dated 12.05.2015 that Ext.P2 notice was issued to the petitioner to surrender the vehicle before the 2[nd] respondent. 4. I have heard Sri.Abu Mathew, learned counsel appearing for the petitioner and also Smt.Sheeba G, learned Government Pleader appearing for the respondents. 5. It is true that the vehicle was temporarily released to the petitioner by the jurisdictional Magistrate on executing a bond for 5 W.P.(C) No.27635 of 2015 Rupees one lakh. As per Section 53B of the Abkari Act, any order passed by a competent Court for the temporary release of the vehicle shall not prevent the authorized officer from taking or continuing action under Section 67B of the Act. This Court in **Nikhil v. Deputy Excise Commissioner, 2016 (3) KLT 772,** has held that the concerned magistrate court is vested with the power to temporarily release the vehicle till such time order either interim or final, is passed by the officer authorized under Section 67B of the Abkari Act. Therefore, it is settled law that such release of the vehicle by the competent Magistrate Court will always be subject to the final orders to be passed under Section 67B of the Abkari Act for confiscation of the vehicle. ## 6. Section 67B of the Abkari Act reads as follows: - “ _**67B. Confiscation by Abkari Officers in certain cases.-** (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act; the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer)._ _(2) Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act_ W.P.(C) No.27635 of 2015 6 _has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof._ _(3) When making an order of confiscation under subsection (2), the authorised officer may also order that such of the properties to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed.”_ As per the Act, irrespective of whether the person was prosecuted or not for the offence involved and irrespective of the outcome of the criminal case, in view of the non _obstante_ clause contained in Section 67B a vehicle involved in an abkari offence is liable for confiscation. In view of the same, the temporary custody granted to the petitioner by the Magistrate Court will not in any way stand in the way of the Excise authorities initiating confiscation proceedings in respect of the vehicle involved in the crime. 7. Notice was issued to the petitioner in the confiscation proceedings and he was represented in the said proceedings through a lawyer and he sought time to file a reply. The petitioner appeared before the confiscating authority on 22.04.2015 and submitted Ext.R2(a) statement practically admitting the allegations against him. The confiscation order passed on 12.05.2015 is not produced and challenged by the petitioner in this writ petition. Only Ext.P1 appellate 7 W.P.(C) No.27635 of 2015 order issued under Section 67E of the Abkari Act is under challenge in this proceedings. I have gone through Ext.P1 order issued by the Additional Excise Commissioner (Enforcement) and find that all the contentions raised by the petitioner have been validly considered by the said authority. Notice evidenced by Ext.P2, directing the petitioner to surrender the vehicle is also in accordance with the law. Therefore, I find no reason to interfere with Exhibit P1 order passed by the Additional Excise Commissioner (Enforcement), and the above Writ Petition is accordingly dismissed. Sd/- **VIJU ABRAHAM, JUDGE** cks W.P.(C) No.27635 of 2015 8 ## APPENDIX OF WP(C) 27635/2015 PETITIONER EXHIBITS EXT.P1:TRUE COPY OF THE ORDER NO.48/APL/2015 DATED 21.07.2015 PASSED BY THE 1ST RESPONDENT EXT.P1(a):ENGLISH TRANSLATION OF EXHIBIT P1 ORDER PASSED BY THE 1ST RESPONDENT EXT.P2:TRUE COPY OF THE NOTICE IN C3 12798/2014 DATED 04.09.2015 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXT.P2(a):ENGLISH TRANSLATION OF EXHIBIT P2 NOTICE ISSUED BY THE 2ND RESPONDENT RESPONDENTS' EXHIBITS: EXT.R2(a):TRUE PHOTOCOPY OF THE STATEMENT GIVEN BY THE PETITIONER //TRUE COPY//