Gopalan K. T. v. State of Kerala represented by the Secretary to Excise Department, Secretariat, Thiruvananthapuram, PIN-695001, and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, ``` ## **`1943`** ## **`WA NO. 1684 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT IN WP(C) 25966/2021 OF HIGH ``` ## **`COURT OF KERALA`** ## **`APPELLANT/PETITIONER:`** ``` GOPALAN K.T., AGED 68 YEARS S/O THEVAN, KEEZHAPALACKAL HOUSE, ERUMAKKAD P.O.VALLANA, ARANMULA-689 514. ``` ``` BY ADVS. T.P.PRADEEP MINIKUMARY M.V. ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.`** - **`2 THE DEPUTY EXCISE COMMISSIONER OFFICE OF DEPUTY EXCISE COMMISSIONER, PATHANAMTHITTA-PIN-689645.`** - **`3 EXCISE INSPECTOR, PATHANAMTHITTA EXCISE RANGE OFFICE, PATHANAMTHITTA, PIN-689 645`** ## **`OTHER PRESENT:`** ``` SR.GP.V.K.SUNIL ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Writ Appeal No.1684 of 2021 ..2.. ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------Writ Appeal No.1684 of 2021 ----------------------------------------------Dated this the 20[th] day of December, 2021** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 07.12.2021 in W.P.(C) No.25966 of 2021. Appellant is the petitioner in the writ petition. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition. 2. The petitioner owns a mini van bearing registration No.KL-03/AD-988. The vehicle owned by the petitioner was seized and detained by the third respondent alleging commission of offences punishable under Sections 13 and 63 of the Kerala Abkari Act (the Act). The allegation against the petitioner is that on 25.09.2021, at about 18.00 hrs., he was found transporting in his vehicle Indian Made Writ Appeal No.1684 of 2021 ..3.. Foreign Liquor in excess of the permissible quantity. The quantity of Indian Made Foreign Liquor allegedly transported by the petitioner is 4 litres. The officer who seized and detained the vehicle later produced the same before the second respondent, the competent authority under Section 67B of the Act for initiating proceedings for confiscation for having used the vehicle for committing the offences alleged. As the proceedings for confiscation is likely to take time for its culmination, the petitioner applied to the second respondent for release of the vehicle pending disposal of the confiscation proceedings. The application submitted by the petitioner was allowed by the second respondent as per Ext.P4 communication, on condition that the petitioner shall deposit a sum of Rs.2,10,000/- towards the value of the vehicle, as was assessed by the competent authority, in the Treasury as provided for under Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 (the Rules). The writ petition was filed seeking a modification of Ext.P4 communication so as to enable the petitioner to claim release of the vehicle on furnishing bank guarantee, instead of cash deposit in the Treasury. The petitioner placed reliance, among Writ Appeal No.1684 of 2021 ..4.. others, on the decision of this Court in **Karthikeyan v. Deputy Commissioner of Excise, Ernakulam** , 2011 (1) KLT 334, in support of the relief claimed in the writ petition. 3. Ext.P4 communication has been issued by the second respondent in accordance with Rule 4(2)(a) of the Rules which provides that a vehicle liable to be confiscated may be released temporarily against deposit of an amount equal to the market value of the vehicle in the Treasury. In **Karthikeyan** , in an almost identical case, a Division Bench of this Court has held that in exceptional circumstances, this Court would be justified under Article 226 of the Constitution in excusing a person from complying with the statutory provisions on equivalent appropriate and stringent conditions, without impairing the effect of the statutory provisions and without violating any of the express interdictions created by statute. The learned Single Judge took the view that the case on hand is not an exceptional case where the proposition laid down by this Court in **Karthikeyan** could be applied and consequently, dismissed the writ petition. The petitioner is aggrieved by the said decision of the learned Single Judge. 4. The learned counsel for the petitioner argued Writ Appeal No.1684 of 2021 ..5.. that the only allegation against the petitioner being that he has possessed Indian Made Foreign Liquor in excess of the permissible quantity, the maximum punishment that could be imposed on him, even if the entire allegations levelled against him are accepted as true, is a only a fine of Rs.5,000/-. It was also argued by the learned counsel that the quantity of the Indian Made Foreign Liquor allegedly possessed by him being only 4 litres, it cannot be said, at any stretch of imagination, that the petitioner has used his vehicle for committing the said offence, for initiating proceedings under Section 67B of the Act. It was argued by the learned counsel that the power conferred on the second respondent to confiscate a vehicle used for committing the offence being a discretionary one, the second respondent ought not have initiated proceedings for the confiscation of a vehicle worth lakhs of rupees for a trivial offence, for which the maximum punishment provided for is only a fine of Rs.5,000/-. According to the learned counsel, initiation of proceedings under Section 67B of the Act, in a case of this nature, for having possessed liquor which is sold in market, merely for the reason that the quantity possessed is slightly above the limits, is an abuse of the process of the Writ Appeal No.1684 of 2021 ..6.. court. According to the learned counsel, at any rate, having regard to the peculiar facts of this case, this Court ought to have ordered release of the vehicle on furnishing the bank guarantee. It was also argued by the learned counsel that insofar as the petitioner is prepared to furnish bank guarantee for the amount mentioned in the impugned order, if the vehicle is released on that condition, it would neither impair the effect of the statutory provision in any manner, nor violate the interdiction in terms of the statutory provision. 5. Per contra, the learned Government Pleader submitted that insofar as Rule 4(2)(a) of the Rules categorically provides for deposit of the amount mentioned therein in the Treasury Savings Account in favour of the Commissioner of Excise, this Court will not be justified in modifying Ext.P4 communication as prayed for by the petitioner. The learned Government Pleader also asserted that the case on hand cannot be said to be an exceptional one to extend the benefit of the decision of this Court in **Karthikeyan** . The learned Government Pleader, however, conceded that going by the allegation, the maximum punishment that could be imposed on the petitioner for the offences alleged is only Rs.5,000/-. Writ Appeal No.1684 of 2021 ..7.. 6. We have examined the arguments advanced by the learned counsel for the parties on either side. 7. As noted, this Court has held in **Karthikeyan** that in exceptional circumstances, this Court would be justified under Article 226 of the Constitution in excusing a person from complying with the statutory provisions on equivalent appropriate and stringent conditions, without impairing the effect of the statutory provisions and without violating any of the express interdictions created by the statute. The relevant paragraphs of the judgment in the said case read thus: “6. When the Confiscation Rules contain the clear statutory provisions as to the manner in which, and the conditions subject to which only, a vehicle could be provisionally released pending confiscation proceedings, it is not open to any statutory authority acting under the Writ Appeal No.1465 of 2021 7 Abkari Laws to issue any order for release, except in conformity with that statutory condition. Statutory provisions, including subordinate legislation, bind the repository of power under that statute and hence, there is no way for any abkari officer to act except in terms of the direction therein. 7. In so far as the exercise of jurisdiction under Article 226 of the Constitution is concerned, it needs to be noted that in exceptional cases, the court may issue orders to render justice, without in any manner Writ Appeal No.1684 of 2021 ..8.. impairing the effect of the statutory law governing the field. However, this would not be done in violation of any express interdiction created by statute law. Equally, even when such a power is being exercised, the writ court would loathe transgress the statutory limitations, unless of course, equivalent appropriate conditions are imposed. This is a very cautious exercise resorted to any exceptionally exceptional circumstances and cannot be asked for as a matter of right or course. Not only that, such a procedure would be adopted only for such strong reasons which are demonstrably overwhelming and requiring judicial indulgence exercising prerogative discretionary jurisdiction to meet the ends of justice, excusing a person, for the time being, from complying with the obligations under the statutory provision; that too, only on stringent conditions. Therefore, even if we find some element of power under Article 226 to grant any such discretionary order, it cannot be asked for, or granted, as a matter of Writ Appeal No.1465 of 2021 8 course in matters relating to the release of vehicles involved in alleged abkari offences.” 8. Section 67B of the Act provides for confiscation of a vehicle only when an offence under the Act is committed in respect of or by means of the same. Going by the allegation levelled against the petitioner and the quantity of the Indian Made Foreign Liquor allegedly possessed by him, it is doubtful as to whether it is a case whether the allegation would make out a case of the commission of the offence in respect of or by means of the vehicle. Be that as it may, as Writ Appeal No.1684 of 2021 ..9.. rightly pointed out by the learned counsel for the petitioner, the power conferred on the second respondent under Section 67B of the Act is a discretionary one to be exercised, having regard to the facts and circumstances of each case. Insofar as the allegation levelled against the petitioner is only that he possessed Indian Made Foreign Liquor which is sold in market slightly in excess of the quantity permitted, it is doubtful as to whether the statute has contemplated confiscation of a vehicle worth several lakhs of rupees for such an offence. ## 9. Rule 4(2)(a) of the Rules reads thus: “4(2) (a) The cart, vessel or other conveyance liable to be confiscated under the Act may be released temporarily by the authorized officer to its owner on depositing an amount equivalent to the market value of the cart, vessel or other conveyance, fixed by the Mechanical Engineer of the Excise Department or any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State in the Treasury Savings Account in favour of the Commissioner of Excise”. As explicit from the extracted Rule, the same provides for temporary release of a vehicle in respect of which proceedings for confiscation under Section 67B of the Act is in contemplation, only on deposit of the amount mentioned in the Writ Appeal No.1684 of 2021 ..10.. Rule in the Treasury Savings Account in favour of the Commissioner of Excise. A reading of Rule 4(2)(a) would show that the object of the said provision is to ensure that the properties in respect of which proceedings for confiscation are in contemplation are not damaged on account of non-user, without compromising on the object of the statutory provision that such properties are liable to be confiscated. As noted, the petitioner is offering bank guarantee for the amount covered by the Rule for release of the vehicle. The bank guarantee is as good as money. True, if bank guarantee is accepted in the place of cash deposit, the amount covered by the bank guarantee cannot be used by the State during the pendency of the confiscation proceedings. We do not think that the same is the object of the Rule which insists cash deposit in a Treasury Savings Account, for the amount is one to be returned to the party, if it is found that the property is not liable to be confiscated, at a later stage. In other words, it cannot be said that a direction for release of the vehicle on furnishing bank guarantee for the amount covered by the Rule would impair the effect of the Rule in any manner whatsoever or that such a direction would violate the express interdiction created by the Writ Appeal No.1684 of 2021 ..11.. Rule. In the aforesaid circumstances, having regard to the observations made in the preceding paragraph, we are of the view that the case on hand is one in which the ratio in **Karthikeyan** could be applied. In the said view of the matter, the impugned judgment is set aside and the second respondent is directed to release the vehicle referred to in the writ petition to the petitioner on furnishing bank guarantee for the amount specified in Ext.P4 communication. This shall be done as expeditiously as possible. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 22.12.2021 Writ Appeal No.1684 of 2021 ..12.. ## APPENDIX ## APPELLANTS ANNEXURES: ANNEXURE A: TRUE COPY OF THE CR NO.189/2021 OF PATHANAMTHITTA EXCISE RANGE OFFICE WITH MAHASAR. ANNEXURE B: TRUE COPY OF THE STATEMENT OF ACCOUNTS ISSUED BY MAHINDRA FINANCE.