K.T. Joseph Koottaplackal and Oomen Mathew v. Excise Commissioner, Commissionerate of Excise and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** ## **MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942** ## **WP(C).No.24609 OF 2013(A)** ## **PETITIONERS :** **1 K.T.JOSEPH KOOTTAPLACKAL, THANKAMONY P.O., IDUKKI - 685 609. 2 OOMEN MATHEW, AMBOLIL VILLA, PUTHUVAL, PATHANAPURAM P.O., PATHANAMTHITTA DISTRICT, PIN - 686 995. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.AMMU PILLAI SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA SMT.VEENA UNNIKRISHNAN** ## **RESPONDENTS :** - **1 EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, NANDAVANAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695 033.** - **2 DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM, PIN - 686 001.** - **3 EXCISE INSPECTOR, EXCISE RANGE OFFICE, KANJIRAPPALLY, PIN - 686 507.** ## **BY GOVERNMENT PLEADER SRI.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.24609 OF 2013(A)** 2 ## **JUDGMENT** Dated this the 19th day of October 2020 A Mahindra Bolero Jeep owned by the first petitioner was ordered to be confiscated by Ext.P5 issued by the 2[nd] respondent. The reason stated was that the vehicle was found transporting 'arishtam' without valid permit. According to the 2[nd] respondent, the said transportation amounted to an offence under Section 56(b) & 63 of the Kerala Abkari Act [for short, 'the Act'] read with Rule 9, 10 & 17 of the Kerala Spirituous Preparations (Control Rules) 1969 [for short, 'the rules']. The order of confiscation was interfered with by the Additional Excise Commissioner in appeal through Ext.P9. A _suo motu_ revision was initiated by the 1[st] respondent under Section 67E of the Act and issued Ext.P11 order. The 1[st] respondent set aside the order of the Appellate Authority and upheld the order of confiscation. Thus, the vehicle faced immediate confiscation, resulting in this writ petition challenging inter-alia Ext.P11. **WP(C).No.24609 OF 2013(A)** 3 2. The learned counsel for the petitioners Sri.S.P.Aravindakshan Pilllay submits that Ext.P11 order of the 1[st] respondent is totally erroneous and contrary to law since a well considered order of the Appellate Authority was interfered with without even any reference to the legal or factual aspects. The learned counsel points out that as per Ext.P3 interim order in WP(C) No.25533/2008, this Court had directed the respondent not to insist on licence under the Rules if the products of the petitioner are covered by the Drugs and Cosmetics Act as well as its Rules and also that as per Exts.P1 & P2, 2[nd] petitioner is in possession of licences under the Drugs and Cosmetics Act as well as the Medicinal and Toilet Preparations (Excise Duties) Act 1956. It was further submitted that apart from the above, the Division Bench of this Court had, in judgment dated 12.06.2012, after obtaining test results of chemical analysis observed that the products transported by the present petitioners did not contain percentage of alcohol above the percentage of alcohol found in the same products manufactured by the reputed manufacturers. 3. Learned counsel further pointed out that, the Appellate Authority who is none other than the Additional Excise **WP(C).No.24609 OF 2013(A)** 4 Commissioner, after an assessment of the entire facts that arose in the case, came to the conclusion that the present was not a fit case to order confiscation as it would be too harsh in the circumstances of the case. The counsel also argued that Ext.P11 suffers from yet another anomaly in the sense that as evident from Ext.P14, details obtained under the Right to Information Act, the person who heard the case was only an Assistant Excise Commissioner, a subordinate authority to the Appellate Authority under the statute. All what the revisional authority- Excise Commissioner did, in purported exercise of his alleged revisional jurisdiction was to merely observe that the Deputy Commissioner's order “ought to be upheld”. The learned counsel submitted with due vehemence that the scope and purport of revisional power under Section 67E of the Act is very limited and must be exercised when the Commissioner specified, therein is satisfied and not otherwise. Thus, the learned counsel submitted that Ext.P5, P11 and P12 orders are liable to be set aside. 4. The learned Government Pleader Sri.Unnikrishna Kaimal submitted that the 'arishtam' transported by the first petitioner was not supported by any licence under Rules and the **WP(C).No.24609 OF 2013(A)** 5 same amounted to an offence under the Act. Referring to the pleadings in the counter affidavit, the learned Government pleader submits that the 2[nd] petitioner has a history of indulging in offences of transporting 'arishtams' without any licence to various Districts and he has already been booked in 21 cases. The learned Government Pleader also invited the attention of the Court to the pleadings in the counter affidavit that the 2[nd] petitioner had admitted that the seized arishtam belonged to him and also that he had committed a mistake in attempting to sell arishtam to a person who did not have licence under the Rules. An additional counter affidavit was also filed by the 2[nd] respondent in which it was pointed out that there was an attempt by the first petitioner to sell the vehicle which is the subject matter of the present confiscation proceedings to another person as evident from Ext.R2(a) intimation and that such an action was clearly prohibited under the Act. 5. As pointed out by Adv.S.P.Aravindakshan Pillai, this Court had already held in **Priyamvada P.G. (Dr.) v. State of Kerala and Others [2015 (5) KHC 63]** that 'arishtam' and 'asavas' which are ayurvedic medicines cannot be treated as **WP(C).No.24609 OF 2013(A)** 6 liquor under Section 3(10) or Section 56(b) or under Section 67B(a) of the Act. After a detailed consideration of the legal provision, this Court came to the conclusion that the ayurvedic medicines are, perhaps, intoxicating drugs, but they remain out of the purview of the Abkari Act, as they have not been notified. It was also held that ayurvedic medicines cannot be treated as liquor as defined in Section 3(10) of the Act and nor does it fall under the mischief of Section 56(b) or Section 67B(1) of the Act. 6. Guided by the aforesaid principle of law laid down, it is explicit that ayurvedic medicines do not fall within the Act and the abkari officers have no authority to proceed against ayurvedic medicines either in its sale or in its transportation. Of course, the situation may be different, if under the guise of ayurvedic medicine what is attempted to be transported is any liquid containing Ethyl alcohol above the limits prescribed. In the present case, the respondents do not have a case that what was transported was not ayurvedic medicine. They also did not have a case that the ayurvedic medicine had a percentage of ethyl alcohol more than the limits prescribed. The limits are seen recorded in Ext.P8 judgment of this Court. **WP(C).No.24609 OF 2013(A)** 7 7. Though the aforesaid conclusion of mine is sufficient to quash Ext.P11 order, I feel that based on the submissions raised across the bar, it is necessary to enter a finding on the other contentions raised also. 8. The Appellate Authority's well considered order produced as Ext.P9 has been interfered with by Ext.P11. In Ext.P11, no reasons have been stated as to why, in exercise of revisional jurisdiction, the Excise Commissioner interfered with the order of the Appellate Authority. Exercise of appellate power and exercise of power of revision stands on different footing. Revisional power is limited while the Appellate power is wide. Absolutely no reason is forthcoming in Ext.P11 order regarding the basis for exercising the said revisional jurisdiction. No objective consideration is evident in Ext.P11. In such circumstances, I find that Ext.P11 order has been issued by the 3[rd] respondent in excess of his authority and the same is liable to be set aside on that ground also. 9. The further contention regarding the person who heard was not the person who decided also requires **WP(C).No.24609 OF 2013(A)** 8 consideration. It is seen from Ext.P14 that the person who heard the petitioner was the Assistant Excise Commissioner. In the counter affidavit, the Deputy Excise Commissioner affirms that the Assistant Excise Commissioner heard the revision under the direction of the Excise Commissioner. According to me, the power exercisable under Section 67F of the Act is a suo motu revisional power conferred specifically to the Excise Commissioner. There is no power under the statute to delegate the authority to hear to any other person while exercising the suo motu power of revision. When the power is conferred by a statute to an authority, the same has to be exercised in the manner prescribed and not in any other manner. It is not left to the whims and fancies of the authority prescribed under the statute to delegate the power of hearing to a subordinate officer, that too, a person subordinate to even the appellate authority under the Act and then decide, without even an application of mind on the basis of notes submitted. The power under Section 67F of the Act can be exercised prejudicial to the person affected only after giving him an opportunity of being heard. The opportunity of hearing contemplated under the provision must be an effective **WP(C).No.24609 OF 2013(A)** 9 opportunity and not just an eye wash. 10. It is also elementary that the party who heard must decide or “he who heard must decide”. Principle of natural justice will stand infracted when the person who heard does not decide or the person who decided did not hear. Though this rule is not an invariable and rigid rule of universal application, exceptions to the rule does not arise in the instant case. In **Marico Industries Ltd.v. State of Kerala [2003 (1) KLT 956]** , the principle has been adverted to. The wordings used in Section 67F of the Act is explicit that the satisfaction must be that of the Commissioner and a hearing must be granted before prejudicial orders are passed. Delegating the power of hearing for the purpose of exercising the jurisdiction under Section 67F of the Act to a subordinate officer not contemplated under the said provision. Hearing conducted in the instant case is illegal and ex facie without authority. The impugned order is liable to be set aside for the aforesaid reason also. 11. In view of the above discussion, I find that Ext.P11 order of the Excise Commissioner is liable to be set aside. **WP(C).No.24609 OF 2013(A)** 10 Consequently, Ext.P12 notice directing the petitioners to produce the vehicle under confiscation shall also stand set aside. The order of the Appellate Authority Ext.P9 shall stand revived. The original petition is allowed as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C).No.24609 OF 2013(A)** 11 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1**|**EXT.P1: TRUE COPY OF THE LICENSE NO.30/25**| |---|---| ||**D/96 DATED 15/02/2004 ISSUED BY THE DEPUTY**| ||**DRUGS CONTROLLER (AYURVEDA) AND LICENSING**| ||**AUTHORITY UNDER THE DRUGS AND COSMETICS ACT**| ||**1940 AND THE DRUGS AND COSMETICS RULES**| ||**1945.**| |**EXHIBIT P2**|**EXT.P2: TRUE COPY OF THE LICENSE**| ||**NO.15/2004-2005 UNDER THE MEDICINAL AND**| ||**TOILET PREPARATIONS (EXCISE DUTIES) ACT**| ||**1956, AND THE MEDICINAL AND TOILET**| ||**PREPARATIONS (EXCISE DUTIES) RULES 1956,**| ||**FOR THE MANUFACTURE OF MEDICINAL AND TOILET**| ||**PREPARATIONS.**| |**EXHIBIT P3**|**EXT.P3:TRUE COPY OF THE INTERIM ORDER DATED**| ||**25/8/2008 IN WPC NO.25533/2008 OF THIS**| ||**HON'BLE COURT.**| |**EXHIBIT P4**|**EXT.P4:TRUE COPY OF THE ORDER DATED**| ||**10/12/2010 ON R.P. NO.1011/2010 IN WPC**| ||**NO.25533/2008.**| |**EXHIBIT P5**|**EXT.P5: TRUE COPY OF THE ORDER NO. K3-**| ||**192/12 DATED 29/10/2012 OF THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P6**|**EXT.P6: TRUE COPY OF THE APPEAL DATED**| ||**18/12/2012 SUBMITTED BY THE 1ST PETITIONER**| ||**BEFORE THE ADDITIONAL EXCISE COMMISSIONER,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT P7**|**EXT.P7: TRUE COPY OF THE INTERIM ORDER**| ||**DATED 22/02/2012 IN WPC NO.2617/2012 OF**| ||**THIS HON'BLE COURT.**| |**EXHIBIT P8**|**EXT.P8: TRUE COPY OF THE JUDGMENT DATED**| ||**12/06/2012 IN W.A NO.917/2012 IN WPC**| ||**2617/2012 OF THIS HON'BLE COURT.**| |**EXHIBIT P9**|**EXT.P9:TRUE COPY OF THE ORDER**| ||**NO.12/APL/2013/AC(X) DATED 18/03/2013.**| |**EXHIBIT P10**|**EXT.P10: TRUE COPY OF THE CERTIFICATE OF**| ||**THE CHEMICAL ANALYSIS**| **WP(C).No.24609 OF 2013(A)** 12 **EXHIBIT P11 EXT.P11: TRUE COPY OF THE ORDER NO.XA47629/13 K.DIS DATED 26/08/2013 OF THE 2ND RESPONDENT.** **EXHIBIT P12 EXT.P12: TRUE COPY OF THE NOTICE NO.K3192/12 DATED 09/09/2013 OF THE 2ND RESPONDENT** **EXHIBIT P13 EXT.P13: TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN CRIME NO.2/2012 REGISTERED BY EXCISE INSPECTOR, KANJIRAPPALLY.** **EXHIBIT P14 EXT.P14: TRUE COPY OF THE LETTER NO.XA424460/13 DATED 24/09/2013, THE STATE PUBLIC INFORMATION OFFICER, EXCISE HEADQUARTERS, THIRUVANANTHAPURAM.**