John P.J. v. State of Kerala (W.P.(C) No.29988/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **WP(C).No.29988 OF 2019(W)** ## **PETITIONER:** **JOHN P.J., AGED 57 YEARS S/O. JOSEPH, PUNNAMTHADATHIL HOUSE, PRAPPOYIL, CHERUPUZHA GRAMA PANCHAYATH. CHERUPUZHA P.O, THALIPPARAMBU, KANNUR DISTRICT, PIN 679 511** **BY ADVS. SRI.P.K.VARGHESE SMT.M.B.SHYNI SRI.DEEPAK RAJ SMT.C.P.ROOPA** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN 695 001** - **2 THE DEPUTY ESCISE COMMISSIONER, EXCISE DIVISION OFFICE, KANNUR DISTRICT, PIN 670 002** SRI.C.N.PRABHAKARAN SR.PP **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2019, THE COURT ON 27.11.2019 DELIVERED THE FOLLOWING:** W.P.(C) No.29988/2019 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ W.P.(C) No.29988 of 2019 ----------------------------------------------Dated this the 27[th] day of November, 2019 ## **J U D G M E N T** The writ petitioner was the sole accused in the case S.T.No.288/2019 on the file of the Court of the Judicial First Class Magistrate, Payyannur. 2. The allegation against the petitioner in the aforesaid case was that he committed an offence punishable under Section 13 read with 63 of the Abkari Act, 1077. 3. The prosecution case was that, on 30.12.2018, at about 11.20 hours, the petitioner was found transporting four litres of Indian made foreign liquor in the car KL-13 T 9659. The Sub Inspector of Cherupuzha police station detected the offence and registered the case as Crime No.362 of 2018 of Cherupuzha police station. The car was seized and produced, on 01.01.2019, before the Deputy Excise Commissioner, Kannur, who is the W.P.(C) No.29988/2019 3 authorised officer under Section 67B of the Abkari Act. 4. The writ petitioner appeared before the learned Magistrate and pleaded guilty to the aforesaid offence. He was convicted and sentenced to pay a fine of Rs.2,500/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. 5. The second respondent has issued Ext.P2 notice to the petitioner to show cause why the car KL-13 T 9659 which was involved in Crime No.362/2018 of Cherupuzha police station shall not be confiscated to the Government. 6. It is stated in the writ petition that the petitioner has submitted reply to Ext.P2 notice. It is also alleged by the petitioner that there was no inventory of the vehicle prepared as required under Section 53A of the Abkari Act and that there is no clinching evidence to show that the vehicle was used for transportation of liquor. On such allegations, the petitioner has sought the following reliefs in this writ petition . _“I. Issue a writ of Mandamus or such other writ, order or direction, directing the 2[nd] respondent to release the Car bearing Registration_ W.P.(C) No.29988/2019 4 ## _No.KL 13 T 9659 forthwith._ _II. Issue a writ of Certiorari or such other writ order or direction to call for the records related to Exhibit P2 and quash the same and further proceedings thereto._ _III. To grant such other and further relief as this Hon'ble Court may consider just and proper in the facts and circumstance of the case.”_ 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. 8. Ext.P2 is only a notice issued to the petitioner under Section 67C(1) of the Abkari Act to show cause against the confiscation of the vehicle. Ext.P2 notice is dated 13.03.2019. This writ petition challenging Ext.P2 notice was filed only on 05.11.2019. 9. The petitioner has no case that Ext.P2 notice is invalid for any reason. The petitioner has no case that the notice lacks any essential particulars required to be stated therein. The petitioner has got no plea that the officer who has issued Ext.P2 notice has no authority or jurisdiction to issue it. In other words, the petitioner has got no case that the notice is issued by an W.P.(C) No.29988/2019 5 officer who is not incompetent to issue it. 10. Normally, the writ court will not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned. The person to whom show cause notice is issued can satisfy the authorities about the absence of any case for proceeding against him. Abstinence from interference at the stage of issuance of show cause notice, in order to relegate the parties to the proceedings before the authorities concerned, is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in abuse of process of law, the writ court would not hesitate to interfere. Interference at the stage of show cause notice should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It is to be, prima facie, established to be so. Where factual adjudication is necessary, interference is ruled out. 11. In **Special Director v. Mohd. Ghulam Ghouse : AIR** W.P.(C) No.29988/2019 6 ## **2004 SC 1467** , the Apex Court has held as follows: _“This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that_ W.P.(C) No.29988/2019 7 _ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, not granted.”_ 12. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice is that, at that stage, the writ petition may be held to be premature. A mere show cause notice does not give rise to any cause of action because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings. It is well settled that a writ lies when some right of any party is infringed. A mere show cause notice does not infringe the right of any one. It is only when a final order adversely affecting a party is passed, that the said party can be said to have any grievance (See **Union of India v. Kunisetty Satyanarayana : AIR 2007 SC 906** ). 13. In the instant case, the petitioner has not made out W.P.(C) No.29988/2019 8 any grounds to warrant interference with Ext.P2 show cause notice issued to him. 14. There is also a prayer contained in the writ petition for release of the vehicle to the petitioner. The statement filed by the second respondent reveals that the Mechanical Engineer of the Excise Department has assessed the market value of the vehicle as Rs.80,000/-. The petitioner can get interim custody of the vehicle on deposit of the aforesaid amount. Consequently, the writ petition is dismissed. The petitioner is at liberty to get interim custody of the vehicle, as mentioned above. **==> picture [39 x 13] intentionally omitted <==** ## **R.NARAYANA PISHARADI, JUDGE** jsr/26/11/2019 W.P.(C) No.29988/2019 9 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 23/02/2019 IN .ST.C NO. /2019 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANUR EXHIBIT P2 A TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT ON 13/03/2019 UNDER SECTION 67(2) OF THE ABKARI ACT TO THE PETITIONER. EXHIBIT P3 A COPY OF THE COPY APPLICATION DATED 27-08-2019 EXHIBIT P4 A TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT DATED 24-01-2019 BEFORE THE JURISDICTIONAL MAGISTRATE RESPONDENTS' EXHIBITS : NIL** **TRUE COPY** **PS TO JUDGE**