Geetha v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 17TH DAY OF FEBRUARY 2014/28TH MAGHA, 1935 WP(C).No. 3729 of 2014 (M) --------------------------- PETITIONER(S): - ------------------ GEETHA, AGED 38 YEARS W/O.RENU, RAGAM HOUSE, PRAYIKKARA MAVELIKKARA P.O BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): - ------------------- 1. STATE OF KERALA - REPRESENTED BY THE SECRETARY, DEPARTMENT OF EXCISE GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2. DEPUTY COMMISSIONER OF EXCISE - ALAPPUZHA - 688 001 3. SUB INSPECTOR OF POLICE, MANNAR - 688 001. BY GOVERNMENT PLEADER SMT.SHERIN C.K THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3729 of 2014 (M) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------ - EXT.P-1: TRUE COPY OF NOTICE DATED 20.8.2013 ISSUED BY THE 2ND RESPONDENT. - EXT.P-2: TRUE COPY OF THE ORDER NO.A6.5000/2013(B) DATED 25.9.2013. - EXT.P-3: TRUE COPY OF ORDER NO.79/A.P.L/2013 DATED 16.1.2014. - EXT.P-4: TRUE COPY OF REVISION PETITION DATED 23.1.2014 FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. ## RESPONDENT(S)' EXHIBITS:NIL ------------------------------------ //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.3729 OF 2014 ==========================** Dated this the 17[th] day of February, 2014 ## **JUDGMENT** Petitioner is the registered owner of a vehicle bearing No.KL31B 1568. Alleging that it was escorting a Qualis Car bearing registration No.KL- 9S 389 which was transporting 525 litres of spirit, crime No.598 of 2013 of Mannar Police Station was registered against the petitioner under section 8(1) (2) and 55(a)(i) of the Abkari Act. Subsequently, on 24.6.2013, the petitioner's vehicle was seized owing to its alleged involvement in the said crime. Ext.P1 notice dated 20.8.2013 was issued to the petitioner requiring him to show cause why the said vehicle should not be confiscated. On its receipt, the petitioner submitted his reply. Thereafter, the second respondent passed Ext.P2 order approving the confiscation proceedings. Against Ext.P2, the petitioner filed an appeal before the Additional Excise **W.P.(C).3729/14** 2 Commissioner (Enforcement) and the same was dismissed as per Ext.P3 order dated 16.01.2014. Thereupon, the petitioner filed Ext.P4 revision petition before the Commissioner of Excise under 67F of the Abkari Act. This writ petition has been filed seeking quashment of Exts.P2 and P3 orders and for issuance of a writ of mandamus commanding the respondents to release the petitioner's vehicle bearing No.KL-31B 1568. It is obvious from the pleadings of the petitioner that Ext.P1 notice was issued to the petitioner as to why the said vehicle should not be confiscated and thereafter, the second respondent passed Ext.P2 order. The petitioner unsuccessfully attempted an appeal against Ext.P2 and thereafter, filed Ext.P4 revision petition under section 67F of the Abkari Act. Obviously, it is yet to be numbered. 2. I have heard the learned counsel for the petitioner and the learned Government Pleader. A perusal of the provisions under **W.P.(C).3729/14** 3 section 67F of the Abkari Act would reveal that suo motu power is vested with the Commissioner of Excise for revising an order passed either under section 67B or 67E by the competent authorities. This Court in **Niketa Kishorekumar v. State of Kerala** [ **1998(1) KLT 50]** held that an aggrieved party can also bring the illegality and irregularity contained in an order passed either under section 67B or 67E of the Abkari Act to the Commissioner of Excise to persuade him to invoke the power under section 67F of the Abkari Act. It is further held therein that when such a request was made by an aggrieved party the Commissioner could exercise the power suo motu based on the materials brought to his notice after calling for and examining the records of the case in question. It is also held therein that the Commissioner could not refuse to invoke the power under section 67F on the ground that no such right has been conferred on the aggrieved party. Thus, essentially, the question of invoking such power by the Commissioner would depend upon the question whether the order **W.P.(C).3729/14** 4 passed either under section 67B or 67E by the respective competent authorities is infected with any illegality or irregularity. If the Commissioner is of the view that a prima facie case is existing and invocation of the power under section 67F is warranting merely because it was brought to his notice by the aggrieved party cannot be taken as reason for refusing to invoke the said power. In the circumstances, I am of the view that the mere fact that it was brought to the notice of the Commissioner by the petitioner by itself cannot be a reason for the Excise Commissioner to decline consideration of the question whether the case on hand is a fit case for invocation of revisional power under section 67F of the Act. At the same time, merely because such a revision petition has been filed and it is not numbered cannot be a reason for the petitioner to seek for the release of the vehicle in question which was seized by respondents on the ground that the vehicle escorted the vehicle carrying the contraband. The contention of the petitioner is that the mere allegation that it **W.P.(C).3729/14** 5 escorted the vehicle which was carrying the contraband would not empower the respondents to seize the vehicle. The said contention of the petitioner cannot be accepted in the light of the decision in **K.Subair v. The Assistant Excise Commissioner & others [2008(1) KLJ 345]** . It was held therein that the act of escorting a lorry carrying a contraband is a composite ingredient of the transaction which would compromise within the expression 'used' in carrying the contraband and therefore, seizure of the vehicle cannot be said to be without any authority. In such circumstances, I do not find any merit in the contention of the petitioner that on the allegation that the vehicle in question escorted Qualis car bearing No.KL-9S 389 transporting 525 liters of spirit could not have been seized on the ground that it was used for the commission of an abkari offence. I may hasten to add that the above observation shall not be taken as a finding of this Court that the vehicle in question had escorted the vehicle carrying the contraband. Taking into account the fact that the revision petition **W.P.(C).3729/14** 6 filed by the petitioner is still pending before the Commissioner I am of the view that the petitioner can maintain a petition under section 4(2) (a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 if the petitioner desires to get the vehicle in question temporarily released subject to the satisfaction of the conditions thereunder. In such circumstances without prejudice to the right of the petitioner to move the competent authority for getting the vehicle temporarily released in the light of the provisions under Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules and subject to the observations made hereinbefore, this writ petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).3729/14** 7 **C.T. RAVIKUMAR, J.** **W.P.(C).3729/14** 8 **JUDGMENT September, 2010**