Hari U. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **WP(C).No. 9259 of 2019** ## **PETITIONER:** **HARI.U., AGED 31 YEARS S/O.UNNIKRISHNAN, KETHAPPAN HOUSE, KALLIKKAD, PALLIPURAM P.O., PALAKKAD-678 004** **BY ADVS. SRI.S.RENJITH SRI.K.R.PRATHISH** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**EXCISE DEPARTMENT, REP BY ADDITIONAL CHIEF**| ||**SECRETARY, TAXES SECRETARIAT,**| ||**THIRUVANANTHAPURAM,PIN-695 001**| |**2**|**THE EXCISE COMMISSIONER,**| ||**EXCISE COMMISSIONERATE,**| ||**THIRUVANANTHAPURAM,PIN-695 033**| |**3**|**ADDITIONAL EXCISE COMMISSIONER,**| ||**EXCISE COMMISSIONERATE,**| ||**THIRUVANANTHAPURAM,PIN-695 033**| |**4**|**THE EXCISE DEPUTY COMMISSIONER,**| ||**OFFICE OF THE EXCISE DEPUTY COMMISSIONER,**| ||**KASARGODE,PIN-671 123**| ||**SRI MANURAJ K.J, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.9259 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is the registered owner of a goods carriage with a national permit bearing registration No.KL-40/F-5816 which is a 2007 model Ashok Leyland Multi Axle Lorry, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 29.10.2018 of the 3[rd] respondent and Ext.P4 notice dated 30.1.2019 of the 4[th] respondent. The petitioner has also sought for a writ of mandamus commanding the 4[th] respondent Deputy Excise Commissioner to consider Ext.P5 reply and re-fix the market value of vehicle bearing registration No.KL-40/F-5816 and release the same by permitting the petitioner to remit the value of the vehicle to be re-fixed, in 20 monthly instalments. 2. On 26.3.2019, when this writ petition came up for admission, the learned Government Pleader ## **W.P.(C)No.9259 of 2019** ## **:-3-:** was directed to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. The pleadings and materials on record would show that the petitioner's lorry, which was on contract with Kerala Beverages Corporation for transportation of liquor, was intercepted by Excise officials, on 11.4.2018. On inspection, 21 liters of Indian Made Foreign Liquor in three cartons (total 28 bottles of 750 ml.), meant for sale only at Goa, was found inside the wooden box fitted in the cabin, behind the driver's seat. The petitioner, who was driving the lorry, was arrested and a crime was registered against him as Crime No.67 of 2018 of Kumbala Excise Range Office, under Sections 58, 56(b) and 67(b) of the Abkari Act, 1077. Subsequently, the petitioner was served with ## **W.P.(C)No.9259 of 2019** ## **:-4-:** a notice under Section 67C of the Abkari Act by the 4[th] respondent, directing the petitioner to show cause why the vehicle shall not be confiscated under Section 67B of the said Act. 5. Pursuant to Ext.P2 notice, the petitioner appeared before the 4[th] respondent, who passed the order dated 10.7.2018, ordering confiscation of the vehicle. Against the order of confiscation, the petitioner filed an appeal before the 3[rd] respondent Additional Excise Commissioner, invoking the provisions under Section 67E of the Act, which ended in dismissal by Ext.P3 order dated 29.10.2018. In Ext.P3 order, it was made clear that the petitioner will be entitled to make an application before the 4[th] respondent Excise Deputy Commissioner for getting permanent custody of the vehicle on remitting the market value of the vehicle as fixed by the Mechanical Engineer in the ## **W.P.(C)No.9259 of 2019** ## **:-5-:** Excise Department, under sub-rule (1) of Rule 4 of the Abkari (Disposal of Confiscated Articles) Rules, 1996. In Ext.P3 order, it has been stated that, the said order will be subject to suo motu revision by the 2[nd] respondent Excise Commissioner, within 30 days from the date of order, as provided under Section 67F of the Abkari Act. 6. In the absence of an order passed by the 2[nd] respondent Excise Commissioner, in exercise of his powers under Section 67F of the Act, within the time limit specified in sub-section (1) of Section 67F, Ext.P3 order has attained finality. Thereafter, the petitioner was issued with Ext.P4 notice dated 30.1.2019 of the 4[th] respondent, whereby he was informed that, based on his application dated 24.11.2018, the market value of the vehicle has been assessed as Rs.4,25,000/- and that, if the petitioner is remitting the said ## **W.P.(C)No.9259 of 2019** ## **:-6-:** amount, he will be granted permanent custody of the vehicle as per Rule 4(1)(a) and (b) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996; failing which, the vehicle will be sold in public auction. On receipt of Ext.P4 notice, the petitioner submitted Ext.P5 reply stating that the market value of the vehicle fixed is highly exorbitant and that, he has not been informed about the outcome of suo motu revision by the 2[nd] respondent. Thereafter, the petitioner moved this writ petition, seeking various reliefs. 7. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P3 order dated 29.10.2018 of the 3[rd] respondent, whereby the appeal filed by the petitioner stands rejected, and also on Ext.P4 consequential notice dated 30.1.2019 issued by the 4[th] respondent. ## **W.P.(C)No.9259 of 2019** ## **:-7-:** 8. As can be seen from Ext.P3 order dated 29.10.2018 of the 3[rd] respondent Additional Excise Commissioner, after considering the contentions raised in the memorandum of appeal filed under Section 67E of the Act, the appellate authority found no reasons warranting interference on the order of confiscation dated 10.7.2018 issued by the 4[th] respondent Deputy Excise Commissioner under Section 67B of the Act. At the time of inspection on 11.4.2018, the Excise officials found 21 liters of Indian Made Foreign Liquor, meant for sale only at Goa, inside the wooden box fitted in the cabin of the petitioner's vehicle, behind the driver's seat. The said fact is not in dispute. The explanation offered by the petitioner that such bottles were put by one Bhai of Krishnagiri was rightly rejected by the appellate authority, thereby affirming the findings in the order of ## **W.P.(C)No.9259 of 2019** ## **:-8-:** confiscation dated 10.7.2018 issued by the 4[th] respondent. The finding of the appellate authority in this regard cannot be said to be perverse or patently illegal, warranting an interference of this Court, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. 9. Ext.P3 order of the 3[rd] respondent appellate authority was subject to suo motu revision by the 2[nd] respondent Excise Commissioner under Section 67F of the Act. As per sub-section (1) of Section 67F, such power of suo motu revision has to be exercised before the expiry of 30 days from the date of the appellate order under Section 67E of the Act. In the absence of exercise of suo motu revision under Section 67F of the Act, within the time limit specified in sub-section (1), Ext.P3 order has attained finality and as such, the 4[th] respondent cannot be found fault with in issuing Ext.P4 ## **W.P.(C)No.9259 of 2019** ## **:-9-:** notice, which is one issued pursuant to an application made by the petitioner dated 24.11.2018. 10. A reading of the statutory provisions would make it explicitly clear that, on confiscation of a vehicle, the owner of the vehicle can get that vehicle released on payment of the amount equivalent to its market value, as assessed by the concerned officer, in lieu of confiscation. As per the statutory mandate, the petitioner has to deposit an amount equivalent to the market value of the vehicle, as fixed by the Mechanical Engineer in the Excise Department, to get custody of the vehicle. Therefore, the petitioner cannot seek an order directing the 4[th] respondent to release the vehicle in question on payment of the market value in 20 equal monthly instalments. 11. In **Santhosh Kumar v. Central Warehousing** ## **W.P.(C)No.9259 of 2019** ## **:-10-:** **Corporation [(1986) 2 SCC 343]** the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the Statute. 12. When the fixation of market value is based on the assessment made by the Mechanical Engineer in the Excise Department, as per the provisions under the statute, in the absence of any vitiating circumstances pointed out in the writ petition, the petitioner cannot seek re-fixation of market value of that vehicle by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. In the result, this writ petition fails and the same is accordingly dismissed. ## **W.P.(C)No.9259 of 2019** ## **:-11-:** The learned counsel for the petitioner would submit that the petitioner is prepared to pay the entire amount towards the market value fixed in Ext.P4; for which, he requires a reasonable time. The learned Government Pleader would submit that the sale of the vehicle is yet to take place and as such the petitioner can approach the 4[th] respondent with a request for payment of the market value of the vehicle fixed in Ext.P4 in lump sum, and if any such request is received before the issuance of sale notice, the same shall be considered by the said respondent. The said submission is recorded. **==> picture [60 x 12] intentionally omitted <==** **ANIL K.NARENDRAN** **JUDGE** ami/ ## **W.P.(C)No.9259 of 2019** ## **:-12-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE NATIONAL PERMIT FOR GOODS CARRIAGE ISSUED BY THE MOTOR VEHICLE DEPARTMENT TO THE PETITIONER VEHICLE** **EXHIBIT P2** **TRUE COPY OF THE NOTICE DATED 08.06.2018 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 29.10.2018 OF THE 3RD RESPONDENT** **EXHIBIT P4** **TRUE COPY OF THE NOTICE DATED 31.01.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER** **EXHIBIT P5** **TRUE COPY OF THE REPLY PREFERRED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 28.02.2019**