K. Shankaran v. Additional Excise Commissioner, Thiruvananthapuram & Assistant Excise Commissioner, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931** **WP(C).No. 17824 of 2007(V)** **----------------------------------------** **PETITIONER(S):** **------------------------** **K.SHANKARAN, S/O.KANARAN, AGED 72 YEARS, KRISHNA NIVAS, KEEZHARIYOOR, KOYILANDY, KOZHIKKODE DISTRICT.** **BY ADV. MR.SUNIL V.MOHAMMED** **RESPONDENT(S):** **---------------------------** **1. THE ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM.** **2. THE ASSISTANT EXCISE COMMISSIONER, KOZHIKODE.** **R1 & R2 BY GOVERNMENT PLEADER MR.V. MANU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.17824/2007 V** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER DTD. 11/05/2006 OF THE 2ND RESPONDENT.** - **P2: COPY OF THE HEARING NOTICE DTD. 4/07/2006 ISSUED BY THE 1ST RESPONDENT.** - **P3: COPY OF THE ORDER DTD. 28/09/2006 OF THE 1ST RESPONDENT APPELLATE AUTHORITY.** - **P4: COPY OF THE NOTICE DTD. 27/04/2007 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** ## **N I L** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **Kss** ANTONY DOMINIC, J ------------------W.P.(C).17824/2007 -------------------Dated this the 15[th] day of February, 2010 JUDGMENT 1. Challenge in the writ petition is against Exts.P1 and P3 orders passed by the respondents confiscating an autorikshaw belonging to the petitioner and its confirmation in appeal. 2. Petitioner submits that he is the registered owner of an autorikshaw bearing registration No.KL-18 A-5213. According to him, the autorikshaw was being driven by his son who was earning income for the entire family. On 31.1.2005, the Circle Inspector of Excise, Perambra, and party intercepted the vehicle. Thereupon the vehicle was stopped, about 100 feet away and the passenger ran away from the site. The vehicle was inspected and a can containing arrack was seized. Accordingly C.R.No.3/2005 was registered against the petitioner's son and the passenger. 3. Simultaneously the proceedings were initiated under Section 67B of the Abkari Act (in short 'the Act') for confiscation W.P.(C).17824/2007 2 of the vehicle. Petitioner was issued a notice in this behalf and he filed his reply to the 2[nd] respondent. 2[nd] respondent thereafter issued Ext.P1 dated 11.5.2006 ordering confiscation of the autorikshaw under Section 67B of the Act. Petitioner carried the matter in appeal and by Ext.P2, parties were called for a hearing. Finally Ext.P3 order was issued rejecting the appeal. Challenge is against Exts.P1 and P3 referred to above. 4. Learned counsel for the petitioner submits that the order was passed in violation of principles of natural justice. According to him an authorized officer and the appellate authority did not disclose to him the materials that were sought to be relied on against him and therefore proceedings is invalid. He also submits that the trial of the prosecution against the petitioners' son and the passenger is prosecuting in the trial Court. It is stated that if the son is acquitted by the criminal Court, petitioner is also entitled to get the proceedings dropped and therefore the proceedings is premature. W.P.(C).17824/2007 3 5. Reference was made to a judgment of this Court in Unni v. State of Kerala (1983 KLT 11). It was then contended that even in a case where vehicle is found to be involved in an abkari offence, confiscation is not automatic and it is for the authorized officer to apply his discretion and decide as to whether the vehicle deserves to be confiscated. 6. On the other hand, learned Government Pleader argued in support of the impugned orders. According to him, Ext.P1 itself discloses that the authorized officer had exercised his discretion and came to the conclusion that the vehicle should be confiscated. Insofar as the violation of principles of natural justice for non supply of documents is concerned, learned Government Pleader contends that this was not a contention raised either in the adjudication or in the appeal. Learned Government Pleader also contended that the petitioner, having miserably failed in establishing the requirements of Section 67C (2) of the Act, cannot contend that the vehicle is not liable for confiscation. W.P.(C).17824/2007 4 7. Ext.P1 is the order passed by an authorized officer. A reading of this order shows that before the said authority petitioner had not raised a plea of violation of principles of natural justice nor did the petitioner raise any plea that the show cause notice did not contain the grounds on which the vehicle was proposed to be confiscated. On the other hand, the 2[nd] respondent found that the vehicle was involved in the transportation of arrack and that the explanation submitted by the petitioner cannot be accepted at its face value. It was further found that based on the enquiry report and other evidence, he was satisfied that the transportation of arrack was with the consent and permission of the petitioner in order to make quick money. It is on conclusion of the aforesaid factors that the 2[nd] respondent decided that the vehicle ought to be confiscated. It was this order which was confirmed by the appellate authority in Ext.P3. The appeal memorandum is not produced. A reading of Ext.P3 however, gives the impression that the petitioner had not produced anything to contradict the W.P.(C).17824/2007 5 findings in Ext.P1. This order also shows that apart from saying that he was unaware of the transportation and therefore he is eligible for the benefit of Section 67C (2) of the Act, petitioner did not prove that the transportation of arrack was without the knowledge and connivance of himself or his son being the agent and the person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use of the vehicle. If this be the factual situation, I cannot find fault with the original authority or the appellate authority in having issued Exts.P1 and P3. 8. Relying on the decision of this Court in Unni v. State of Kerala (1983 KLT 11), it was contended that since prosecution is pending and if his son is acquitted, he is entitled to have the vehicle released without any proceedings. However, a reading of Section 67B(2) of the Act itself show that confiscation proceedings can be initiated irrespective of whether any prosecution has been launched or not. This necessarily means the pendency of the criminal prosecution and its outcome is of W.P.(C).17824/2007 6 no relevance insofar the proceedings under Section 67D are concerned. Consequently the view taken in Unni v. State of Kerala (1983 KLT 11) has no relevance in this case. 9. Learned counsel then relied on Sasidharan v. State of Kerala (1980 KLT, 671), Vamadevan Pillai v. State of Kerala & Others (1982 KLT 518) and Lal v. Asst.Excise Commissioner (2001 (1) KLT 840). In all these cases, it has been held that if a vehicle is involved in transportation of contraband article, it is not mandatory that the proceedings should result in the confiscation of the vehicle. A mere reading of the impugned order show that the authorities have exercised their discretion and held that the vehicle ought to be confiscated. If with due application of mind, it is decided that vehicle is to be confiscated, the principles laid down in the judgments could not apply. 10. It was then contended that the principles of natural justice was violated in as much as the documents relied on by the authorized officer were not disclosed to the petitioner. Violation W.P.(C).17824/2007 7 of natural justice by itself will not vitiate a proceedings unless the person aggrieved is able to satisfy the Court that by virtue of the violation of principles of natural justice, prejudice has been caused to him. Prejudice, is a question of fact which has to be pleaded and proved by the person who complains of violation of natural justice. In this case, there is no plea that any prejudice has been caused to the petitioner. Further Exts.P1 and P3 orders do not show that the petitioner, who had notice of the proceedings, made any request for serving copies of the documents relied on against him or for its perusal. That apart, even if the petitioner had such a grievance in this behalf, the first opportunity for the petitioner to have raised the plea was before the appellate authority who rendered Ext.P3. Ext.P3 order does not disclose that this was raised before it. In such circumstances, this contention also is to be rejected and I do so. 11. In this case, the fact that the petitioner is the owner of the vehicle or that contraband liquor was transported and seized from the vehicle when his son was driving the same are not in W.P.(C).17824/2007 8 dispute. The authorities have found that it was with the knowledge and consent of the petitioner that transportation was done. Petitioner did not prove the requirements of Section 67C (2) of the Act. In such circumstances, the findings and the conclusions arrived at by the authorized officer and the Circle Inspector are perfectly reasonable and possible. In such a case, it is not within the province of this Court to sit in the judgment over the factual conclusions and upset the same. I do not find any merit in the writ petition. The writ petition fails and it is accordingly dismissed. ANTONY DOMINIC, Judge mrcs