Navaru Swapna Reddy v. State of Kerala and Others

**WP(C) NO. 26180 OF 2018** **1** ## **(C.R)** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** **WP(C) NO. 26180 OF 2018** ## **PETITIONERS:** NAVARU SWAPNA REDDY,AGED 36 YEARS,W/O N. SRINIVAS REDDY, AGED 36 YEARS,R/O H NO.3-4-68, SUBASH CHANDRA BOSE STATUTE,HYDERGUDA VILLAGE, RAJENDRA NAGAR MANDAL,RANGA REDDY DISTRIT, TELUNGANA-500043. BY ADV SRI.NANDAGOPAL S.KURUP ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, EXCISE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 DEPUTY COMMISSIONER OF EXCISE OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE,PATHANAMTHITTA-689645. 3 ADDITIONAL COMMISSIONER OF EXCISE (ENFORCEMENT) EXCISE HEADQUARTERS, NANDAVANAM,VIKAS BHAVAN PO, THIRUVANANTHAPURAM-695033. BY ADV GOVERNMENT PLEADER SRI.V.MANU, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 26180 OF 2018** **2** **“CR”** **P.V.KUNHIKRISHNAN, J ---------------------------------W.P.(C.) No. 26180 of 2018 --------------------------------------------Dated this the 29[th ] day of June, 2021** ## **JUDGMENT** The petitioner is the registered owner of a Toyota Innova Cresta Car bearing Registration No.TS-07-FE-8889, registered with the RTA Ranga Reddy situated in the State of Telangana. According to the petitioner, the vehicle is used exclusively by the petitioner and her family members in connection with her flower business. The petitioner hails from the State of Telangana. The husband of the petitioner, along with his friends, had taken the vehicle to Kerala during the Christmas of 2017. They came to the State of Kerala and when they reached Chalakkayam, Pamba in the above vehicle, 3.3 litres of Indian Made Foreign Liquor (IMFL) was recovered from the husband of the petitioner and five other co-passengers. The Police registered a crime and effected seizure of the vehicle with the contraband articles and **WP(C) NO. 26180 OF 2018 3** reported the same to the Magistrate. A case is registered against the husband of the petitioner and the other copassengers in the Innova Car under Section 55(a) and 58 of the Abkari Act, with Rule 9 of the Foreign Liquor Rules, 1953 and Sec.118(e) of the Kerala Police Act. The vehicle was seized by the Detecting Officer and produced before the second respondent. The second respondent, after hearing the petitioner, passed Exhibit.P7 order, thereby, confiscating the vehicle. The relevant portion of Ext.P7 order reads as follows: “I have gone through the case records and the circumstances of the crime carefully. The Innova Cresta Car TS 07 FE 8889 was seized by the Police Party for illegal transportation of 3.3 litres of IMFL from a prohibited and protected area on which it marked as for sale in Telungana only and also a pistol with 11 catridges. The seized liquor is permitted to sale only in the state of Telungana. The manufacture Transport and marketing of liquor in the state of Kerala is under the monopoly of State Government. No liquor from other state can be transported or used in the state of Kerala without remitting Excise Duty. In this respect no duty has been received by the state exchequer and the seized liquor should be treated as substitute beverages and hence attract section 58 of Abkari Act. More over the main offence committed by accused is that the liquor was seized from the prohibited area surrounding holy Sabarimala vide GO(P) NO. 130/2017 TD and also declared as highly protected area as per GO(P) No.133/2017 Home SRO.NO 655/2017 by Government of Kerala. On which the Government agencies have made vide propaganda in all south Indian languages and in English. The seizure of liquor in the prohibited area attracts Section 55 of Abkari Act. It is very clear and evident that the vehicle was used for the illegal transportation of Liquor through the prohibited area. All the legal formalities u/s 67 B of Abkari Act has been followed for confiscating the vehicle. The petitioner was also heard personally on 31/03/2018 in compliance of the Orders **WP(C) NO. 26180 OF 2018 4** of Honourable High Court of Kerala dated 20/03/2018 in W.P. (C).No.8377/2018. The petitioner has heard personally, but the petitioner failed to produce any credible documents to defend her contention. All the illegal activities are done with the connivance of the 4[th] accused who is the husband of the registered owner. The registered owner of the vehicle is the wife of the 4[th] accused which is to be taken in to consideration for taking a decision in this issue. He himself brought the vehicle and came to Kerala as a pilgrim to Sabarimala with his friends and he very well knew about the offence and its consequence committed by him. It is evident that the 4[th] accused purposefully committed the offence. The husband of the registered owner of the vehicle, here the agent, who is also in charge of the vehicle had knowingly and with full connivance committed the offence and the registered owned had not taken any reasonable precautions against such use. Hence the benefit of Section 67 C (2) of Abkari Act cannot be given to the registered owner. Hence it is convinced that the vehicle is used for commission of the offence and is liable to be confiscated to Government. In the above circumstances, I the Deputy Commissioner of Excise, Pathanamthitta, the authorized officer on virtue of power conferred up on me, the Innova Cresta Car bearing registration No TS 07 FE 8889 involved in CR No. 393/17 of Pampa Police Station is hereby confiscated to government as per 67 B (2) of Kerala Abkari Act and the order of the Honourable High Court in WP(C) 8377/2018 is also complied with. Appeal in this regard may be filed before the Additional Commissioner of Excise (Enforcement), Thiruvananthapuram within 30 days from the date of receipt of this order. The appellant should affix legal Benefit fund of worth Rs. 6750/- in addition to the normal Court fee stamp.” 2. By Ext.P7 order, the second respondent confiscated the vehicle as per Section 67 B (2) of the Kerala Abkari Act. Aggrieved by Ext.P7, the petitioner filed an appeal before the 3[rd] respondent. The 3[rd] respondent, after considering the contentions of the petitioner, dismissed the appeal as per Ext.P9 order. Aggrieved by Exts.P7 and P9 orders, this writ petition is filed. **WP(C) NO. 26180 OF 2018 5** 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. Learned counsel for the petitioner submitted that the confiscating authority erred in confiscating the vehicle because there is a blatant violation of the statutory provisions. According to the counsel, to confiscate a vehicle involved in an Abkari offence, the officer concerned should be satisfied that an offence under the Act has been committed in respect of or means of that property and such property is liable to confiscation under this Act. The counsel also submitted that as per Section 67C of the Abkari Act no order confiscating any property shall be made under Section 67B unless the person from whom the same is seized is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property. According to the counsel, no notice is issued to the husband of the petitioner or other co-passengers. The counsel also relied on the judgment of this Court in **Ravichandran P. v. The Excise Inspector, Thrissur Range and Other** s [2015 (1) KHC 161]. 5. The Government Pleader seriously opposed the **WP(C) NO. 26180 OF 2018 6** prayers in the writ petition. The Government Pleader submitted that the contention based on Section 67C was taken after amending the writ petition. The Government Pleader submitted that such a contention was not raised before the confiscating authority or before the appellate authority. The Government Pleader relied on the judgment of this Court in **Sub Inspector of Police Cherupulassery and others v. K.Rajesh** [2017 (4) KHC 917] and submitted that the owner of the vehicle has to satisfy 4 conditions mentioned in Section 67C(2) of the Abkari Act. The Government Pleader submitted that Indian Made Foreign Liquor seized from the vehicle is manufactured in the State of Telangana, and the husband of the petitioner and others were found in possession of the same within the limits of Kerala, and therefore, that itself is an offence. The Government Pleader also submitted that some other contraband items were also seized from the vehicle. According to the Government Pleader, it is a clear case in which the husband of the petitioner and the other passengers committed the offence under the Abkari Act. Government Pleader submitted that the order passed by the confiscating authority, which is **WP(C) NO. 26180 OF 2018 7** confirmed by the appellate authority, is perfectly legal and there is nothing to interfere with the same. The Government Pleader also submitted that even though no notice is issued to the husband of the petitioner or other co-passengers by the confiscating authority, no prejudice is caused to the petitioner. The Government Pleader submitted that it is the duty of the petitioner to establish the same and she could have examined those persons before the confiscating authority. 6. The main point raised by the petitioner is about the violation of Sec.67C(1) of the Abkari Act. Ext.P7 is the order passed by the confiscating authority under Section 67B of the Abkari Act. Section 67B of the Abkari Act reads as follows: **67B** . **Confiscation by Abkari Officers in certain cases.** - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act; the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer. (2) Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under **WP(C) NO. 26180 OF 2018 8** this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof. (3) When making an order of confiscation under subsection (2), the authorised officer may also order that such of the properties to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed. 7. Section 67C deals with the issue of show cause notice before confiscation under Section 67B. Section 67C of the Abkari Act reads as follows: ## **67C. Issue of show cause notice before confiscation** **under section 67B** . - (1) No order confiscating any property shall be made under section 67B unless the person from whom the same is seized - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) is given a reasonable opportunity of being heard in the matter. (2) Without prejudice to the provisions of sub-section (1), no order confiscating any animal, cart, vessel or other conveyance shall be made under section 67B if the owner of the animal, cart, vessel or other conveyance proves to the satisfaction of the authorised officer that it was used in carrying the liquor or intoxicating drug or the material, still, utensil, implement or apparatus or the receptacle, package or covering without the knowledge or connivance of the owner himself his agent, if any, and the person in charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.” [Emphasis supplied] 8. In this case, according to the confiscating authority, the vehicle with the contraband articles was seized **WP(C) NO. 26180 OF 2018 9** from the husband and other co-passengers in the vehicle. Admittedly, the petitioner was not there in the vehicle at the time of the alleged seizure. According to the petitioner, it is mandatory to issue notice to the person from whom the contraband is seized. There is some force in the argument of the petitioner. Sec.67(C) of the Abkari Act says that no order confiscating any property shall be made under Sec.67B unless the person from whom the same is seized, is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property. Therefore if the Registered owner of a vehicle is not there in the vehicle at the time the seizure of the property was effected and the property is seized from some other person who was using the vehicle at that time, notice to the registered owner and the person from whom the property is seized is necessary before confiscating the vehicle. 9. According to the Government Pleader, no prejudice is caused to the petitioner by not issuing notice to the person, from whom the contraband articles are seized. When the statute prescribes certain procedures before confiscating a vehicle, it is the duty of the confiscating authority to comply **WP(C) NO. 26180 OF 2018 10** with the same. The definite case of the petitioner is that even if the allegation against her husband and the other copassengers about the seizure of the contraband is correct, the petitioner need not know about the same. At this stage, the Government Pleader relied on the Division Bench judgment of this Court in **Sub-Inspector of Police, Cherupulassery (supra),** in which this Court observed that certain conditions are to be satisfied by the owner of the vehicle, proving the requirement to get the benefit of Sec.67C(2). The Division Bench of this Court in the above decision held that the following conditions are to be satisfied by the owner of the vehicle. (i) “That the involvement of the vehicle was without the knowledge of the owner. (ii) That the involvement of the vehicle was without the knowledge of the Agent, (iii) That it was without the knowledge or connivance of the persons in charge of the vehicle, and (iv) Each of them had taken all reasonable and necessary precautions against such misuse.” 10. It is true that the above conditions are to be satisfied by the owner of the vehicle proving the requirement to get the benefit of Sec.67C(2) of the Abkari Act. But the starting sentence in Sec.67C(2) of the Abkari Act says that "without prejudice to the provisions of sub-section (1), no **WP(C) NO. 26180 OF 2018 11** order confiscating any animal, cart, vessel or other conveyance shall be made under Sec.67B, if the owner of the animal, cart, vessel or other conveyance................". Therefore, it is clear that before coming to the stage of Sec.67C(2), the mandate in Sec.67C(1) of the Act is to be complied with by the confiscating authority. Therefore, according to me, the confiscating authority should issue a notice in writing informing the person from whom the contraband is seized on the grounds on which it is proposed to confiscate such property. Notice should also be given to the registered owner. The confiscating authority should satisfy himself that an offence is committed in respect of or by means of that property. Simply because there are some police documents to show that the persons who were traveling in the vehicle were found in possession of some illicit liquor, there cannot be any presumption that they committed the offence or the vehicle is used for the commission of the offence. An independent consideration of the case by the confiscating authority is necessary. That may be the reason why the legislature insisted in Sec.67C(1) of the Abkari Act to issue notice to the person, from whom the **WP(C) NO. 26180 OF 2018 12** contraband article is seized and, thereafter, to decide the matter. In all cases, the registered owner of the vehicle need not be the person from whom the contraband is seized. The contention of the Government Pleader that, no prejudice is caused to the petitioner in passing the confiscation order without hearing the person from whom the contraband is seized will not stand. When the statute mandates to do the confiscation proceedings in a particular manner, the confiscating authority is bound to follow the same. The other contention of the Government Pleader that, the violation of Sec.67(C)(1) of the Abkari Act is not raised by the petitioner before the confiscating authority, and the appellate authority will also not stand. It is a settled position that a legal contention can be raised by a party at any stage of the proceedings. 11. I also considered the corresponding provision to section 67C of the Kerala Abkari Act in the Tamil Nadu Prohibition Act, 1937. Sec.14 of the Tamil Nadu Prohibition Act, 1937 is extracted hereunder : > “14. **Confiscation how ordered** .- (1) When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the court decides that anything is liable to confiscation, such confiscation shall be ordered by the court. **WP(C) NO. 26180 OF 2018 13** - (2) Where, during the trial of a case for an offence against this Act, the court decides that anything is liable to confiscation, the court shall order the confiscation; Provided that no animal, vessel, cart or other vehicle shall be confiscated under sub-section (1), or sub-section (2), if the Court after hearing the owner of such animal, vessel, cart or other vehicle and any person claiming any right thereto, is satisfied that the owner and such person had exercised due care in the prevention of the omission of such an offence. (3) When an offence against this Act has been committed but the offender is not known, or cannot be found, or when anything liable to confiscation under this Act and not in the possession of any person cannot be satisfactory accounted for, the case shall be inquired into and determined by the Collector or other Prohibition Officer-in-charge of the district or by any other officer authorised by the State Government in that behalf who shall order such confiscation; Provided that no such order shall be made until the expiration of fifteen days from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims. (4) Notwithstanding anything contained in sub-sections (1) to (3), the Collector or other Prohibition Officer in-charge of the district or any other officer authorised by the State Government in that behalf is satisfied that an offence has been committed against this Act and whether or not a prosecution is instituted for such offence, he may, without prejudice to any other punishment to which the offender is liable under this Act, order confiscation of any animal, vessel, cart or other vehicle used in the commission of such offence: Provided that, before passing an order of confiscation, the owner or the person from whom such animal, vessel, cart or other vehicle is seized, shall be given- (i) a notice in writing informing him of the grounds on which it is proposed to confiscate the animal, vessel, cart or other vehicle: (ii) an opportunity of making a representation in writing within a reasonable time, not exceeding fourteen days, as may be specified in the notice, against the grounds of confiscation ; and (iii) a reasonable opportunity of being heard in the matter: Provided further that the owner or the person from whom such animal, vessel, cart or other vehicle is seized shall be given an option to pay, in lieu of its confiscation, an amount not exceeding the market price of such animal, vessel, cart or other vehicle. (5) Any person aggrieved by an order of confiscation under sub-section (4) may, within one month from the date of the **WP(C) NO. 26180 OF 2018 14** receipt of such order, appeal to the Court of Sessions having jurisdiction. “ 12. There is a marked difference between Sec.67C of the Kerala Abkari Act and Sec.14(4) of the Tamil Nadu Prohibition Act, 1937. As per Sec.14(4) of the Tamil Nadu Prohibition Act, what is stated is that while passing an order of confiscation, the owner or the person from whom such animal, vessel, cart or other vehicle is seized, shall be given a notice. But in Sec.67C of Kerala Abkari Act, there is no such option given to the confiscating authority to give notice to either the owner or the person from whom the seizure is effected. That also strengthens my view that as per Sec.67C of the Abkari Act the notice to the person from whom the contraband seized is mandatory along with a notice to the registered owner. 13. In such circumstances, according to me, the order passed by the confiscating authority confiscating the vehicle without hearing the person from whom the same is seized, is illegal. Therefore, according to me, Exts.P7 and P9 orders are to be set aside and the matter should go back to the confiscating authority for fresh consideration, after hearing the person from whom the contraband articles are seized. At **WP(C) NO. 26180 OF 2018 15** this stage, the counsel for the petitioner submitted that there may be a direction to the confiscating authority to release the vehicle to him, in accordance with Rule 4(2) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 (hereinafter referred to as 'Rules'). Rule 4(2)a of the above Rules says that the cart, vessel or other conveyance liable to be confiscated under the 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. 14. The Government Pleader submitted that this exercise is already done, and the value of the vehicle is already assessed by the authorities concerned. The counsel for the petitioner submitted that the vehicle is idle from 2017 in the office of the 2[nd] respondent. The value of the vehicle is to be assessed afresh. Considering the facts and circumstances of the case, according to me, there can be a **WP(C) NO. 26180 OF 2018 16** direction to the authorities to revalue the vehicle before considering an application, if any, submitted by the petitioner to release the vehicle as per Rule 4(2)a. Hence, this writ petition is allowed in the following manner : 1) Exts.P7 and P9 are set aside, and the 2[nd] respondent is directed to consider the matter afresh, after hearing the petitioner and after complying with Sec.67C(1) by issuing notice to the passengers in the vehicle from whom the contraband articles are seized. 2) In the meanwhile, if an application is filed by the petitioner within one month from the date of receipt of a copy of this judgment for releasing the vehicle as per Rule 4(2)a of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, the confiscating authority will depute an authorised officer to revalue the market value of the vehicle and thereafter, pass appropriate orders, in accordance to the law, within 6 weeks from the date of receipt of the said application. 3) All other contentions of the petitioner are left open. I also make it clear that I have not considered the case on merit and the confiscating authority is free to decide the **WP(C) NO. 26180 OF 2018 17** matter afresh untrammeled by any of the observations in this judgment. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** AS SKS **WP(C) NO. 26180 OF 2018** **18** ## **APPENDIX OF WP(C) 26180/2018** |PETITIONER ANNEXURE|| |---|---| |EXHIBIT P1|THE TRUE COPY OF THE REGISTRATION| ||CERTIFICATE ISSUED IN THE NAME OF THE| ||PETITIONER FROM THE RTA RENGAREDDY.| |EXHIBIT P2|THE TRUE COPY OF THE FIR NO.393 OF 2017| ||OF PAMBA POLICE STATION DATED 23.12.2017.| |EXHIBIT P3|THE TRUE COPY OF THE SHOW CAUSE NOTICE| ||FROM THE 2ND RESPONDENT DATED 9.2.2018.| |EXHIBIT P4|THE TRUE COPY OF THE ORDER DATED| ||13.2.2018 ISSUED BY THE 2ND RESPONDENT.| |EXHIBIT P5|THE TRUE COPY OF THE REPLY STATEMENT| ||FILED BY THE PETITIONER BEFORE THE 2ND| ||RESPONDENT DATED 14.03.2018.| |EXHIBIT P6|THE TRUE COPY OF THE JUDGMENT IN WP(C)| ||NO.8377 OF 2018 OF THIS HON'BLE COURT| ||DATED 20.03.2018.| |EXHIBIT P7|THE TRUE COPY OF THE ORDER DATED| ||31.03.2018 ISSUED BY THE 2ND RESPONDENT.| |EXHIBIT P8|THE TRUE COPY OF THE COMPUTER PRINTOUT| ||FROM THE WEBSITE OF THE EXCISE DEPARTMENT| ||REGARDING MAXIMUM POSSESSION LIMIT OF| ||LIQUOR BY PERSON.| |EXHIBIT P9|THE TRUE COPY OF THE ORDER DATED| ||10.07.2018 PASSED BY THE 3RD RESPONDENT.| |EXHIBIT P10|TRUE COPY OF THE APPLICATION SUBMITTED BY| ||THE PETITIONER BEFORE THE 2ND RESPONDENT| ||DATED 20/09/2018| RESPONDENTS EXTS EXT.R3(A): COPY OF GO(P)NO.130/17 TD EXT.R3(B): COPY OF THE GO(P) NO.133/17/HOME SRO NO.655/2017 /TRUE COPY/ P.S.TO JUDGE AS SKS