James Mathew v. Excise Inspector, Devikulam Range Office, Idukki District; Deputy Commissioner of Excise, Idukki; Additional Excise Commissioner, Excise Headquarters, Thiruvananthapuram; Excise Commissioner, Commissionerate of Excise, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 25TH DAY OF OCTOBER 2018 / 3RD KARTHIKA, 1940** ## **WP(C).No. 17586 of 2015** ## **PETITIONER/S:** **JAMES MATHEW AGED 52 YEARS S/O.MATHAI, PARTNER, E.V.MATHAI & SONS, BUILDING NO.25/673, EDAKKATTUKUDIYIL HOUSE,KOTHAMANGALAM P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENT/S:** - **1 THE EXCISE INSPECTOR EXCISE RANGE OFFICE, DEVIKULAM, IDUKKI DISTRICT - 685 613** - **2 THE DEPUTY COMMISSIONER OF EXCISE IDUKKI, OFFICE AT THODUPUZHA -685 584.** - **3 THE ADDL.EXCISE COMMISSIONER EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM - 695 033.** - **4 THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS, NANDAVANAM,THIRUVANANTHAPURAM - 695 033.** **BY ADV. SRI.SUNIL KURIAKOSE(GOVT.PLEADER)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 17586 of 2015** **2** ## **JUDGMENT** **The petitioner challenges Exts.P1 and P3 orders, by which his vehicle was confiscated.** **2. Petitioner is the registered owner of a Bolero Car, bearing registration No.KL-44-5405. His vehicle was intercepted on 15.03.2014 by a squad under the leadership of Additional Tahsildar, Devikulam and it was found that the petitioner has been transporting 23.4 liters of Beer and 18 liters of Wine without valid documents. The Additional Tahsildar seized the vehicle and the articles, and produced before the Excise Inspector, Devikulam, based on which C.R.No.12/14 of Excise Range Office, Devikulam was registered.** **3. It is stated that the vehicle was released on depositing a sum of Rs.2,00,000/which was the value of vehicle assessed by the Mechanical Engineer. Petitioner received a show cause notice, for proceedings under Section 67B** **WP(C).No. 17586 of 2015** **3** **and C of the Abkari Act. Ext.P1 order was passed thereafter, confiscating the vehicle under Section 67B. Ext.P2 appeal submitted by the petitioner was rejected after hearing the petitioner, as per Ext.P3 order. The orders Exts.P1 and P3 are challenged on the ground that principles of natural justice are violated; that the authorised officer did not exercise his discretion; that Government have not sustained any loss on account of the commission of the alleged offence, etc. It is also pointed out that in the light of various judgments of this Court, the confiscation ordered by the respondents is illegal.** **4. Learned counsel for the petitioner relied on the judgment dated 13.07.2012 in W.P. (C).No.4172 of 2008 (Ext.P4), judgment dated 22.12.2011 in W.A.No.1951 of 2011 (Ext.P5), judgment dated 23.02.2012 in W.P.(C).No.16964 of 2010 (Ext.P6) and judgments in W.A.Nos.1058 of 2016 and 1628 of 2016, in support of the** **WP(C).No. 17586 of 2015** **4** **contention that the mere fact that the vehicle was involved in an offence, it is not incumbent on the part of the respondents to confiscate the vehicle in all cases. It is also argued that the order Ext.P1 is in violation of Section 67B(1) (c) of Abkari Act, 1967.** **5. The respondents have filed a counter affidavit supporting the orders Exts.P1 and P3. It is stated that pursuant to the show cause notice issued under Section 67C proposing confiscation, petitioner submitted a reply on 20.09.2014. It was found that petitioner, being the R.C. Owner had not taken any precautionary measures to prevent the illegal transportation of liquor in the vehicle. It is also stated that he failed to bring out any evidence to substantiate his contentions that he had taken sufficient precautions. It is also stated that all the accused involved in the case admitted guilt of the commission of the offence and compounded the same** **WP(C).No. 17586 of 2015** **5** **by payment of fine and hence the vehicle was involved in the payment of Abkari offence and petitioner did not produce any piece of evidence to prove otherwise. It is further stated that the Appellate Authority also, after hearing the petitioner found that he did not take any preventive measures against the misuse of the vehicle. Hence it is stated that Ext.P3 order is passed in accordance with law. It is further stated that the vehicle was liable to be confiscated under Section 67B of the Abkari Act and that all legal procedures were observed before the confiscation was ordered.** **6. The learned Government Pleader pointed out that the petitioner did not take any steps to adduce any evidence and the impugned orders were passed in accordance with law. Relying on the judgment in** _**Jacob Thomas @ Sabu Paster v. Assistant Excise Commissioner, Palakkad and Another**_ **: 2015 (5) KHC 514, it was argued that it** **WP(C).No. 17586 of 2015** **6** **is the burden of the petitioner to prove that he did not have any knowledge as to whether the vehicle has put to illegal use or that he lost possession or control over the vehicle and and in the absence of any explanation on record, there is no violation of principles of natural justice. Relying on the judgments in** _**Sajin v. Asst. Excise Commissioner, Kottayam and Others**_ **: 2009 (2) KHC 304;** _**Excise Commissioner v. Alex :**_ **2017 (4) KHC 799 it was argued that the orders passed by the respondents are in accordance with law and the petitioner was found to have committed an offence by permitting misuse of the vehicle. It is pointed out that under Section 63, the offence committed by petitioner could attract punishment of imprisonment up to two years or fine up to Rs.5,000/-.** **7. The learned Government Pleader pointed out that in the cases relied on by the learned counsel for the petitioner, the offenders were** **WP(C).No. 17586 of 2015** **7** **having permit to carry toddy whereas in the present case, the petitioner was not having a permit to carry liquor and the circumstances arising in those cases were entirely different.** **8. Even though petitioner has alleged that the order Ext.P1 suffer from the violation of principles of natural justice, he has not stated that he was denied any opportunity to adduce evidence. It would appear that he rather admitted the commission of offence. Eventhough he stated that his driver was given instructions not to commit any offence, he failed to substantiate the same.** **9. If at all petitioner had any** **particular grievance including the non-observation of any provisions before Ext.P1 order was passed,** **it is seen that he has not raised any specific ground either in the appeal or in the writ petition, apart from a vague allegation of violation of principles of natural justice. His** **WP(C).No. 17586 of 2015** **8** **contention in the appeal as well as in the writ petition is that he was not given an opportunity to examine the witnesses. However he has not produced any material to show that he ever made any such request before the authorities to examine the witnesses. In fact what is seen is that the petitioner admitted the offence committed though it was stated vaguely that he had directed his driver not to allow any illegal activities.** **10. It is seen that the Appellate Authority has considered his contentions after a full fledged hearing in presence of the learned counsel for the petitioner and with reference to the records. He found that the confiscation proceedings were in accordance with law. It was found that there were 36 bottles of Beer with 650ml i.e., 23.4 litres of Beer and 24 bottles of Wine with 750 ml i.e., 18 litres in his car which is impermissible and unauthorised as well as punishable.** **WP(C).No. 17586 of 2015** **9** **11. The next contention is whether the 1[st]** **respondent exercised his jurisdiction in accordance with law. Regarding the exercise of jurisdiction, this Court has in Exts.P4, P5 and P6 judgments held that mere involvement in an offence cannot, by itself alone, be a reason for confiscation. From the judgments relied on by the learned counsel for the petitioner, it is seen that those are cases in which the vehicles were carrying Toddy in excess of violation of the permit issued to them and hence, released imposing a penalty of Rs.1,00,000/- as fine.** **12. The learned counsel for the petitioner submits that the vehicle involved in the present case is having a lesser value and even thereafter the entire value found by the Mechanical Engineer was realised for the releasing of vehicle.** **13. Even though the learned counsel for the petitioner submits that the offence is minor, the offence continues to be an offence itself, as** **WP(C).No. 17586 of 2015** **10** **rightly pointed out by the learned Government Pleader. Therefore Ext.P1 or P3 orders with respect to confiscation of the vehicle do not suffer from any illegality.** **However having regard to the facts and circumstances of the case, I deem it appropriate that the vehicle can be released after realising a sum of Rs.1,00,000/ (Rupees One Lakh Only). Therefore the respondents 2 and 4 are directed to see that the balance amount in the security deposit remitted by the petitioner for getting his vehicle released, is returned to him, i.e., after adjusting a sum of Rs.1,00,000/- within a period of three months from the date of receipt of a copy of this judgment.** **This writ petition is disposed of accordingly. Sd/-** **P.V.ASHA JUDGE** ## **AS / WW** **WP(C).No. 17586 of 2015** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**PHOTOCOPY OF THE ORDER NO.ID3-2123/14 DATED**| |---|---| ||**21.2.2015 PASSED BY THE 2ND RESPONDENT.**| |**EXHIBIT P2**|**PHOTOCOPY OF THE APPEAL MEMORANDUM DATED**| ||**27.3.2015 FILED BEFORE THE 3RD RESPONDENT**| |**EXHIBIT P3**|**PHOTOCOPY OF THE ORDER NO.31/APL/2015 DATED**| ||**7.5.2015 PASSED BY THE 3RD RESPONDENT**| |**EXHIBIT P4**|**PHOTOCOPY OF THE JUDGEMENT DATED 13.7.2012**| ||**IN WPC NO.4172/2008 PASSED BY THIS HON'BLE**| ||**COURT.**| |**EXHIBIT P5**|**PHOTOCOPY OF THE JUDGEMENT DATED 22.12.2011**| ||**IN WA NO.1951/2011 PASSED BY THIS HON'BLE**| ||**COURT.**| |**EXHIBIT P6**|**PHOTOCOPY OF THE JUDGEMENT DATED 23.2.2012**| ||**IN WPC NO.16964/2010 PASSED BY THIS HON'BLE**| ||**COURT.**|