Joseph P.U. v. Station House Officer, Kannavam Police Station, Kannur; Deputy Excise Commissioner, Kannur; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** ## **WP(C).No. 2897 of 2019** ## **PETITIONER:** **JOSEPH P.U., S/O.ULAHANNAN, AGED 47 YEARS, PULPPARAMBIL HOUSE, DHOTTAPPANKULAM, SULTHAN BATHERY, WAYANAD DISTRICT-673592.** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENTS:** **1 THE STATION HOUSE OFFICER, KANNAVAM POLICE STATION, KANNUR-670650. 2 THE DEPUTY EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, KANNUR-670003. 3 STATE OF KERALA, REPRESENTED BY SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)2897 OF 2019 ## **JUDGMENT** The petitioner, who is the registered owner of a jeep bearing registration No.KL-73/A-3663, covered by Ext.P1 certificate of registration, which is involved in the commission of an offence punishable under Section 55(a) of the Abkari Act, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 10.01.2019 of the 2[nd] respondent Deputy Excise Commissioner to the extent it directs deposit of Rs.2 lakhs towards the market value of the vehicle. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to give interim custody of the said vehicle to the petitioner, on executing bond by way of security. 2. On 31.01.2019, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions. 3. On 19.02.2019, when this writ petition came up for consideration, the learned Senior Government Pleader pointed out that, there is misquoting of provisions in Ext.P2 petition filed by the petitioner, for interim custody and the relevant provision is sub-rule (2) of Rule 4 of the Kerala Abkari 3 WP(C)2897 OF 2019 (Disposal of Confiscated Articles) Rules, 1996. The learned Senior Government Pleader has also pointed out that a notice has already been issued to the petitioner, initiating confiscation proceedings under Section 67B of the Abkari Act. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondent. 5. The pleadings and materials on record would show that, alleging commission of an offence punishable under Section 55(a) of the Abkari Act, the 1[st] respondent Station House Officer, Kannavam Police Station in Kannur District seized the jeep owned by the petitioner bearing registration No.KL73/A-3663. Though the petitioner moved an application before the Judicial 1[st] Class Magistrate Court, Koothuparamba, under Section 451 of the Code of Criminal Procedure, the learned Magistrate closed the said application since the 1[st] respondent Station House Officer has produced the vehicle before the Assistant Excise Commissioner, Kannur. Thereafter, the petitioner moved Ext.P2 application for interim custody of the vehicle before the 2[nd] respondent. On that application, the 2[nd] respondent passed Ext.P3 order dated 10.01.2019, whereby the vehicle is ordered to be released to the petitioner, WP(C)2897 OF 2019 4 on interim custody, subject to the conditions stipulated in that order. One of those conditions is, deposit of a sum of Rs. 2 lakhs, within a period of 15 days, towards the amount equivalent to the market value of the jeep covered by Ext.P1 certificate of registration, as assessed by the Mechanical Engineer of the Excise Department. 6. As per clause (a) of sub-rule (2) of Rule 4 of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, the cart, vessel or other conveyance liable to be confiscated under the Abkari Act may be released temporarily by the authorised 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 per clause (b) of subrule (2) of Rule 4, The cart, vessel or other conveyance so released (temporarily) shall be produced before the Authorised Officer when final order of confiscation is passed by the Competent Authority and communicated to the owner of such property by Registered Post. 5 WP(C)2897 OF 2019 7. In the instant case, as per Ext.P3 order, based on the assessment made by the Mechanical Engineer in the Excise Department as to the market value of the jeep, covered by Ext.P1 certificate of registration, the 2[nd] respondent has granted interim custody of the vehicle on the petitioner, on depositing a sum of Rs.2 lakhs, within 15 days from the date of receipt of Ext.P3 order. 8. In **Nikhil v. Deputy Excise Commissioner [2016** **(4) KLT 372]** , a Division Bench of this Court held that under clause (a) of sub-rule (2) of Rule 4 of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, the power is conferred upon the 'Authorised officer', to release interim custody of the vehicle to the owner, pending confiscation proceedings, on depositing an amount equivalent to the market value of the vehicle (as fixed by the Engineer concerned), further stipulating under sub Rule 2 (b) of Rule 4 that the vehicle so released shall be produced before the Authorised officer, when final order of confiscation is passed by the competent authority and communicated to the owner by registered post. 9. Therefore, in view of the law laid down by the Division Bench of this Court in **Nikhil's case** ( _supra_ ), the 6 WP(C)2897 OF 2019 deposit of the amount equivalent to the market value of the jeep covered by Ext.P1 certificate of registration, as fixed by the Engineer concerned, is a mandatory requirement for getting interim custody of the said vehicle, pending confiscation proceedings. In that view of the matter, the challenge made in this writ petition against Ext.P3, to the extent it directs the petitioner to deposit a sum of Rs.2 lakhs towards market value of the vehicle covered by Ext.P1 certificate of registration, for interim custody is perfectly legal, which warrants no interference in this writ petition. 10. The learned counsel for the petitioner would submit that, in pending confiscation proceedings, the petitioner may be granted an opportunity to pay the market value of the vehicle fixed in Ext.P3 order, by extending the time limit stipulated in that order. This writ petition is disposed of as follows; (i) The challenge made in this writ petition against Ext.P3 order dated 10.01.2019 of the 2[nd] respondent, to the extent it directs deposit of a sum of Rs.2 lakhs towards market value of the jeep covered by Ext.P1 certificate of registration, for interim custody of that vehicle is repelled. 7 WP(C)2897 OF 2019 (ii) The petitioner is granted two weeks' time from the date of receipt of a certified copy of this judgment, to pay the said amount of Rs.2 lakhs as per Ext.P3 order, for interim custody of that vehicle, pending confiscation proceedings. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 8 WP(C)2897 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE IN RESPECT OF THE VEHICLE. EXHIBIT P2 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE EXCISE COMMISSIONER, KANNUR, DATED 3.11.2018.** **EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 10.1.2019.** **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**