K. Subair v. Assistant Excise Commissioner, Wayanad; Additional Excise Commissioner, Thiruvananthapuram; Excise Commissioner, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929** **WP(C).No. 15330 of 2007(Y)** **---------------------------------------** **PETITIONER:** ## **-------------------** **K. SUBAIR, AGED 46 YEARS, S/O.MUHAMMED, KARUTHEDATHU VEEDU, GUDALAI, KALPETTA P.O., WAYANAD DISTRICT.** **BY ADV. SRI.PHILIP M.VARUGHESE.** **RESPONDENTS:** **------------------------** **1. THE ASSISTANT EXCISE COMMISSIONER, WAYANAD.** **2. THE ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM.** **3. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2007,THE COURT ON 03/01/2008 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.15330/2007-Y:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE PROCEEDINGS NO. W5-3507/04 DTD. 11/05/2006 OF THE R.1.** **EXT.P.2: COPY OF THE ORDER NO. W5-3507/04 DTD. 28/06/2005 OF THE R.1.** **EXT.P.3: COPY OF THE ORDER NO. 30/APL/2006/AC (X) DTD. 17/03/2007 PASSED BY THE R.2.** **EXT.P.4: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE R.3. ON 22/03/2007.** **EXT.P.5: COPY OF THE SAID NOTICE DTD. 04/05/2007 ISSUED BY THE R.1. TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **prv.** ## THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = ## WP(C).No.15330 of 2007-Y = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of January, 2008. ## JUDGMENT **==> picture [38 x 13] intentionally omitted <==** 1.A mini lorry driven by the petitioner, was intercepted and seized by an excise party on 1611-2004, for illegal transport of 570 litres of spirit. The petitioner was arrested. Another escaped from the spot. A motor cycle, escorting that vehicle, was also seized. That motor cycle, admittedly, belongs to the petitioner, who is the first accused in the criminal case. - 2.The registration particulars available in the mini lorry with Tamil Nadu registration, turned out to be fake. None raised any claim for that mini lorry, nor objected to confiscation of that vehicle even in spite of public advertisement. WP(C)15330/07 -: 2 :- 3.Following the detailed investigation conducted by the Excise Inspector about the involvement of both the vehicles in the offence and after giving a reasonable opportunity of being heard, an order was passed confiscating both the vehicles to Government, in exercise of authority under Section 67B(2) of the Abkari Act 1 of 1077, hereinafter referred to as the “Act”. Pending such proceedings, the motor cycle was temporarily released to the petitioner, the registered owner, on deposit of its duly fixed market value. - 4.Petitioner appealed against the confiscation order, as regards the motor cycle. The appellate authority noted that, as per the case records, the motor cycle was escorting the mini lorry carrying the spirit and its rider escaped into forest under the cover of darkness, on seeing the excise party. The writ petitioner was the driver of the mini lorry. He was arrested at the site of interception. He is the owner of the motor WP(C)15330/07 -: 3 :- cycle. Accordingly, the appellate authority clearly concluded, on facts, that the motor cycle was escorting the mini lorry driven by the writ petitioner and that the spirit was transported in the mini lorry driven by the writ petitioner at the material point of time, with the active support of the motor cycle as an escorting vehicle. Accordingly, the confiscation order was confirmed. 5.As already noted, the findings of facts rendered by the statutory authorities in the impugned orders are that (i) the mini lorry was carrying spirit unauthorisedly; (ii) that lorry was driven by the writ petitioner; (iii) the motor cycle driven by another person who escaped into the forest under the cover of darkness on seeing the excise party, was escorting the mini lorry carrying the contraband; (iv) the petitioner who was driving the lorry is admittedly the registered owner of the motor cycle which was found to be escorting the mini lorry; (v) the WP(C)15330/07 -: 4 :- mini lorry had fake registration numbers and none had claimed it, nor objected to its confiscation. I may also notice that the identity of the person, who was riding the motor cycle, has not been disclosed even by the petitioner who is the owner of the motor cycle and is opposing its confiscation. 6.The argument on behalf of the writ petitioner is that Section 67B(2) of the Act does not provide for confiscation of any vehicle other than that which contained the contraband. In support of that contention, reference was made to subsection (1) of Section 67B and Section 65 of the Act, with the support of the judgment of this Court in V.P.Paulson v. The Asst. Excise Commissioner [2006 (3) KLJ 742]. - 7.After referring to Asst. Excise Commissioner v. Vijayan (1981 KLT 366) and Sajin v. District Superintendent of Police [1999 (2) KLT 490], the words “used in carrying the same” following the WP(C)15330/07 -: 5 :- words “.......animals, carts, vessels and other conveyances” in the second part of Section 65 were interpreted in V.P.Paulson (supra) and it was laid down that animals, carts or other conveyances etc. can be confiscated under the Act only if the same were actually used for carrying the contraband, and not merely if by means of the same, an abkari offence has been committed. In V.P.Paulson (supra), the case considered was one where contraband was seized while a lorry was being loaded with liquor. One person was arrested on the spot. Four others, who were allegedly loading the liquor escaped in a car parked near the place of occurrence. That vehicle, the car, was later intercepted and also proceeded against under Section 67B. The appellate authority, in that case, released that vehicle holding that the involvement of the car in the commission of the offence, was not conclusively established. The Excise Commissioner in a suo motu revision, set aside that order and restored the confiscation order. WP(C)15330/07 -: 6 :- The facts of that case were, therefore, pithily that, even according to the Excise officials, the car was used by the accused persons to escape from the scene of occurrence where they were allegedly loading liquor into the lorry. In that view of the matter, the act of “carrying”, was held to be not a transaction involving the car. 8.In Sajin's case (supra), the issue that fell for consideration was as to whether different articles including Codeless Phone, Car Stereo, Digital Ordinary Phone, Yardly Powder, Calculators, Re-chargeable Battery etc. found along with foreign made foreign liquor which was intercepted could be treated as articles which could be confiscated under Section 67B on the allegation that they were used for the purpose of covering or concealing the contraband, namely, the liquor. In that context, it was held that in view of the first information report and the mahazar in that case, it was not as if the foreign made foreign liquor contained in bottles WP(C)15330/07 -: 7 :- were concealed in the other articles. Accordingly, this Court held that as far as the articles other than foreign made foreign liquor are concerned, such articles could be forwarded to the concerned Customs Officer and action under the Abkari Act could confine only as against the foreign made foreign liquor. 9.In Vijayan's case (supra), the Division Bench dealt with two cases. In one, filed by a stage carriage operator, certain bottles of Indian made foreign liquor concealed in a suit case and a few bottles of foreign liquor wrapped in paper and kept near that suit case under the seat, were recovered from a passenger. In the other case, filed by the owner of a tempo van operating a passenger service, three bottles of Mysore arrack covered in a bed sheet were recovered from a passenger named in that judgment. The Bench, for reasons stated in that judgment to notice that the position in relation to stage carriages and vans which are authorised to operate public WP(C)15330/07 -: 8 :- passenger service stands on a different footing, repelled the contention of the State that the vehicles could be confiscated. However, in so far as the concept of the word “used” in Section 67B is concerned, the Bench laid down, as a basic principle, the following: “8. The scheme of the Act, as disclosed by the provisions, is that a seizure of the conveyance is contemplated and authorised only if the competent officer finds that the conveyance has been 'used' in carrying liquor, intoxicating drug etc. in contravention of the provisions of the Act. It, therefore, becomes necessary for us to consider when a vehicle can be said to be 'used' in carrying contraband liquor, intoxicating drug etc.? In our opinion, a conveyance can be said to be 'used' for carrying the contraband article only if the person, who actually effects such transportation, has at least some degree of minimal control over the operation of the vehicle which may be WP(C)15330/07 -: 9 :- either by his having obtained it on loan from its owner or on hire (as in the case of a taxi car or contract carriage or vehicles taken on hire for private use including buses, vans and private carrier vehicles) or other similar arrangement. In all such cases the person effecting the conveyance will be in a position to exercise at least a limited control as to the destination to which the vehicle should be taken or the route along which it should ply etc. In cases of this kind the vehicle will be liable for confiscation under Section 67B of the Act on its being found to carry contraband liquor, intoxicating drugs etc. unless the owner, his agent or the person in charge of the conveyance is able to show that he had taken all reasonable and necessary precautions against such use. It was submitted by the learned Advocate-General appearing on behalf of the appellants that in such cases it is not correct to say that proof of mens rea on the part of the owner/agent/person in charge of the conveyance is a prerequisite for WP(C)15330/07 -: 10 :- attracting liability to confiscation. There is force in the above contention advanced by the learned Advocate-General.” 10.Following the aforesaid Bench decision, a conveyance is said to be 'used' for carrying the contraband articles if the person who actually effects such transportation has, at least, some degree of actual, though minimal, control over the operation of the vehicle. In the case in hand, the petitioner is the first accused in the criminal case and was found to be driving the lorry carrying the contraband. He is the registered owner of the motor cycle which was found escorting the lorry. He also does not deny that he was the full owner and in complete control of the user of the motor cycle in question. The rider of the motor cycle escaped into the forest under the cover of darkness. The petitioner does not disclose the identity of the rider, may be because, he is privileged in that regard on account of being the accused in the WP(C)15330/07 -: 11 :- criminal case. The petitioner does not have a case that the motor cycle that belongs to him was casually behind the lorry driven by him. The registration particulars of the lorry that was being driven by the accused, the writ petitioner were bogus. In the said circumstances, it can be safely concluded that the motor cycle that was escorting the lorry is a conveyance that was used in the carrying of the contraband in the lorry, by being used as an effective escorting vehicle in the act of carrying the contraband in the lorry. Such escorting is not segregable from the factum of carrying the contraband in the lorry. The act of escorting a lorry carrying a contraband, as in this case, is a composite ingredient of the transaction which can be called as “used” in carrying. The degree of control that the petitioner had over the operation of the motor cycle is such that he had complete control over the destination to which the lorry and the motor cycle escorting it were to reach and the route along which they should ply. Therefore, WP(C)15330/07 -: 12 :- the motor cycle cannot be taken out of the sweep of Section 67B of the Act. - 11.The findings of facts rendered by the statutory authorities are reasonable and logical and within the parameters of the law permitting confiscation as contained in the Act. The same is also in tune with the statutory provisions as enunciated above. There is, therefore, no jurisdictional error or legal infirmity in the impugned orders. The writ petition accordingly fails. In the result, the writ petition is dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/