K.A. Radhakrishnan v. Government of Kerala and Others

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV FRIDAY,THE20[TH]DAYOFOCTOBER2023/28THASWINA,1945 WP(C)NO.17855OF2014 ``` ``` PETITIONER: ``` ``` K.A.RADHAKRISHNAN S/OK.C.AYYAPPANKUTTY,KANAKKASSERIHOUSE,KUNNAPPILLYPO MELUR,MUKUNDAPURAMTALUK,THRISSUR. BYADVS. SRI.SREEVALSAN.V SMT.M.K.SHIMI SRI.D.SREENATH ``` ## **`RESPONDENTS:`** ``` 1GOVT.OFKERALA REPRESENTEDBYSECRETARYTOGOVERNMENT,EXCISEDEPARTMENT, THIRUVANANTHAPURAM-695001. 2DEPUTYEXCISECOMMISSIONER PALAKKAD-678014. 3EXCISECOMMISSIONER THIRUVANANTHAPURAM-695001. SMT.PRINCYXAVIER,GP THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 20.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.17855OF2014 ``` ``` 2 ``` ## **JUDGMENT** The petitioner is the owner of a Mahindra Jeep bearing Registration No.KL 08 B 1604. On 4.10.2010, the vehicle was seized by the respondents on the premise that 10 liters of Indian Made Foreign Liquor was transported in the said vehicle. Three persons were arrested, and Crime No.33 of 2010 of the Padagiri Police Station was registered inter alia for the offenses under Section 55(a) and (i) of the Abkari Act. Later, the vehicle was produced before the authorised officer on 7.10.2010, and the vehicle was entrusted to the Sub Inspector of Police, Padagiri Police Station. 2. After the registration of the crime, confiscation proceedings were initiated by invoking Section 67(B) of the Abkari Act. The petitioner was served with a notice under Section 67(C) of the Act, he being the registered owner. 3. The petitioner appeared before the authorised officer and contended that there is no material to suggest that either the driver or the petitioner had any prior knowledge of the transportation of 10 liters of IMFL by the passenger in a plastic bag. It is urged that the knowledge or connivance of the petitioner herein cannot be attributed as he had taken all reasonable necessary precautions against such use. ``` WP(C)NO.17855OF2014 ``` ``` 3 ``` 4. After considering the facts and contentions advanced, the authorised officer confiscated the vehicle to the Government by invoking his powers under Section 67(B) of the Abkari Act. Challenging the said order, the petitioner preferred an appeal before the Additional Excise Commissioner. The Additional Excise Commissioner, after considering the facts, took the view that the vehicle was liable to be confiscated by the Government, and the appeal was rejected. This was challenged by the petitioner herein by preferring a Revision Petition before the Excise Commissioner. The Excise Commissioner, holding that no new or substantial facts were raised in the Revision Petition, concurred with the order passed by the authorised officer as confirmed by the Appellate Authority. It is against the said order that this writ petition is filed. 5. The learned counsel appearing for the petitioner submitted that what has been seized in the instant case is Indian Made Foreign Liquor. The petitioner herein was not present at the scene of the crime. The only reason stated in the order is that the petitioner failed to take precautions to ensure that the driver did not permit any person to transport the Indian Made Foreign Liquor. The failure of the driver to check the plastic bag prior to permitting the passenger to travel in the vehicle is also highlighted. Reliance is placed on the judgment rendered by this Court in **State of Kerala v Navaru Swapna Reddy** [2022 (1) KHC 563], **Suraj K.R. v. Excise Inspector, Thrithala and Others** [2013(2) KHC 211] and ``` WP(C)NO.17855OF2014 ``` ``` 4 ``` **Ravichandran v. Excise Inspector** [2015(1) KLT 218] to substantiate his contention 6. The learned Government Pleader would point out that the issue raised in this petition is covered by the law laid down by a Division Bench of this Court in **Sub Inspector of Police, Cherupulassery and Others v. K. Rajesh[1]** . According to the learned counsel, the petitioner was not in a position to substantiate before the authorities concerned that the transportation of the Indian Made Foreign Liquor was without his consent or knowledge. It is further urged that the materials produced before the authority would disclose that the person who was transporting the Indian Made Foreign Liquor was sitting by the side of the driver with the bag in his possession, and if that be the case, the driver ought to have taken necessary precautions to ensure that the offence under the Abkari Act shouldn’t be committed. ## 7. I have considered the submissions advanced. 8. It can be seen from the provisions contained in Sections 65, 67B and 67C of the Act that if an offence is committed under the Act in respect of or by means of a property, the same is liable for confiscation in accordance with the procedure laid down in S.67C(1). As such, before ordering confiscation of a property, it is obligatory for the authorised officer 1 2017(4) KHC 917. ``` WP(C)NO.17855OF2014 ``` ``` 5 ``` to satisfy that an offence under the Act has been committed in respect of or by means of that property and that the property in respect of or by means of which the offence is committed under the Act is liable for confiscation. The expression "whether or not a prosecution is instituted for the commission of such offence" in S.67B(2) of the Act would show that the power conferred on the authorised officer to order confiscation of property is irrespective of the fact as to whether a prosecution has been launched for the commission of the offence alleged. Similarly, the word "may" used in S.67B(2) would indicate that the power conferred on the authorised officer to order confiscation of property is discretionary inasmuch as he is not obliged to order confiscation, even if he is satisfied that an offence has been committed under the Act in respect of or by means of that property 9. A Division Bench of this Court in **Navaru Swapna Reddy** (supra) has held that where the exercise of power is dependent upon the satisfaction of certain requirements on the part of the conferee of the power, such satisfaction is to be arrived at by him not subjectively but by applying an objective test. The standard and measure of such test being that of a reasonable person acting reasonably having regard to all the relevant facts, for the statute does not contemplate confiscation of property in every case where an offence is committed in respect of or by means of the property referred to in S.65 of the Act [See Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli, 2007 KHC 3556 : (2007) 6 SCC 81 : JT 2007 (6) ``` WP(C)NO.17855OF2014 ``` ``` 6 ``` SC 264 and Clariant International Ltd. v. Securities & Exchange Board of India, 2004 KHC 1597 : (2004) 8 SCC 524 : AIR 2004 SC 4236 : 2004 (122) Comp Cas 112]. If the owner invokes S.67C and he is able to show the matters mentioned therein, irrespective of whether the property could have been confiscated, no order of confiscation could be passed because of the operation of S.67C [See Sasidharan v. State of Kerala, 1980 KHC 177 : 1980 KLT 671 : 1980 KLN SN 6 and Vamadevan Pillai v. State of Kerala and Others, 1982 KHC 125 : 1982 KLT 518 : 1982 KLJ 304 : ILR 1982 (2) Ker. 494 : 1982 KLN 490]. 10. It is trite that to have the vehicle confiscated, it ought to be established that the owner of the vehicle has prior knowledge or, in the alternative, he should be a party to the offence, which will connote his active involvement, and till it is not established that the owner of the vehicle has knowledge or that he has connivance with the person or in illegally transporting any contraband, merely because his vehicle was involved in the offence, he cannot be penalized. Equally, when it is shown that the owner had no control of activities that took place using the vehicle, it cannot be assumed that the vehicle was entrusted with an intention to commit the offence of carrying contraband articles, and thus an order of confiscation of vehicle cannot be made automatically for the reason that an offence has been committed make use of the vehicle.( See Nazeer M.P. V State of Kerala and Others 2021 (6) KHC 752). ``` WP(C)NO.17855OF2014 ``` ``` 7 ``` 11. Two reasons have been stated in the Ext.P1 order. The first reason is that the driver did not take necessary precautions, and therefore, constructive knowledge can be attributed to the petitioner herein. The second reason is that the driver ought to have ensured that the contraband was not transported by the passenger. As held by this Court in **Navaru Swapna Reddy** (supra) Kerala is not a State where sale and consumption of liquor is prohibited. The prosecution has no case that the IMFL found in the plastic bag was prohibited for the purpose of sale in the state. The quantity of IMFL is just under 10 liters and the specific case is that the same was kept in a plastic bag. As the quantity is just 10 liters, the driver of the vehicle could not have reasonably suspected that what was being transported was IMFL. There are no materials which would unequivocally establish that the owner of the vehicle has knowledge or that he has connived with the person or in illegally transporting any contraband. There is absolutely no material to establish that the petitioner had any control over the activities that took place using the vehicle. The order of confiscation has been made based on certain assumptions, which is clearly unwarranted. In that view of the matter, I am of the considered opinion that it is a fit case where the authorised officer ought to have exercised discretion not to order the confiscation of the vehicle. The Division Bench of this Court in **K Rajesh** (supra), which judgment is relied on by the learned Government Pleader, was confronted with a case in which 70 liters ``` WP(C)NO.17855OF2014 ``` ``` 8 ``` of prohibited contraband, namely spirit, was transported. The principles laid down therein have absolutely no application in this case. 12. In the facts and circumstances, I am of the considered opinion that relevant aspects were not considered by the respondent while ordering confiscation of the vehicle. In that view of the matter, the petitioner is entitled to succeed. This petition will stand allowed. Exts P1 and P2 will stand quashed. If the vehicle has been released to the petitioner on payment of security, expeditious steps shall be taken to release the security amount. Needful shall be done within a period of two months from the date of receipt of a copy of this judgment. Sd/- ## **RAJA VIJAYARAGHAVAN V JUDGE** Sru ``` WP(C)NO.17855OF2014 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 17855/2014`** ``` PETITIONEREXHIBITS ``` ``` EXHIBITP1TRUECOPYOFTHEORDERNO.XA527984/2013/K.DEIS DATEDNIL. EXHIBITP2TRUECOPYOFTHENOTICENO.P27260/2010DATED 2.6.2014. EXHIBITP3CERTIFIEDCOPYOFTHEJUDGMENTINTHESC 214/2011DISPOSEDBYTHEHON’BLEDISTRICTCOURT PALAKKADDATED1.10.2014. ```