High Court of KeralaSingle Judge2021-11-05Writ petition allowed; Exts. P2 and P4 quashed;...

Nazeer M.P. v. State of Kerala and Others

Case / Petition Number:WP(C) No. 27738 of 2011

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: MOHAMMED NIAS C.P.
Judgment Date: 2021-11-05
Court Decision / Holding: Writ petition allowed; Exts. P2 and P4 quashed. If any security had been provided for interim custody, it shall be released.
Final Disposition: Writ petition allowed; Exts. P2 and P4 quashed; interim custody security to be released.

Parties to the Case

Appellants / Petitioners

Nazeer M.P., S/O Pareekunju

Respondents

State of Kerala and Others (Excise Department, Government Secretariat, Thiruvananthapuram)
Excise Commissioner, Trivandrum
Additional Excise Commissioner, Trivandrum
Deputy Commissioner of Excise, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Paul K. Varghese

Counsels for Respondents

• SRI A S DHEERAJ

Case Synopsis & Summary

Nazeer M.P., the registered owner of a Toyota Innova (KL 40/A/8805), challenged Exts. P2 and P4, orders confiscating the vehicle in connection with an Abkari offence. The sequence began when, on 15.03.2009, police seized 1015 litres of spirit from a compound near Vennala and the Innova was seized as part of Crime No. 401 of 2009 under Section 55(a) of the Kerala Abkari Act. The Government confiscated the vehicle via Ext. P2, and the matter was pursued through a revision culminating in Ext. P4. The petitioner moved under CrPC Sec. 451 seeking interim custody or release of the vehicle, but those applications were denied. The petitioner argued that the vehicle had been leased to Shine on 13.03.2009 with a return date of 18.03.2009, that he located the vehicle through GPRS, and that he had reported to the police; he contended that he was not an accused and that mere involvement of a vehicle in an offence does not prove the owner's knowledge or connivance. The Government Pleader contended that there was illegal transport of spirit and that the petitioner, as registered owner, had knowledge or involvement, justifying confiscation. The High Court ultimately held that Exts. P2 and P4 cannot be sustained, noting the owner was not arrayed as an accused and that mere vehicle involvement does not prove ownership knowledge or connivance. The orders were quashed, and security for interim custody was to be released.

Provisions of Law Cited

Kerala Abkari Act, Sec. 55(a)Kerala Abkari Act, Sec. 67BKerala Abkari Act, Sec. 67CCrPC Sec. 451

Legal Doctrines & Maxims

Ownership of property cannot alone justify confiscation; the owner must have prior knowledge or active involvement in the offence.
Mere involvement of a vehicle in the offence does not automatically implicate the owner or justify confiscation without proof of knowledge or connivance.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that the vehicle was leased to Shine on 13.03.2009 with a return date of 18.03.2009, and that he traced the vehicle via GPRS and reported it to the police. He asserted that he was not an accused and that there was no material showing his involvement or knowledge of any abkari offence. He contended that Exts. P2 and P4 are unsustainable and contrary to the principles that confiscation requires proof of owner knowledge or involvement, not mere vehicle involvement; the vehicle’s seizure occurred during an interim period while ownership remained unprovenly implicated, and the earlier criminal proceedings did not establish his culpability.

Contentions of Respondents

The respondents contended that there was illegal transport of spirit and that the confiscation proceedings followed from the stated offence, with the petitioner as the registered owner having knowledge or involvement; Exts. P2 and P4 were said to be proper and free from infirmity.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Suraj K.R. v. Excise Inspector, Thrithala and Others	2013(2) KHC 211	Positive	Cited as supporting the principle that ownership alone is insufficient for confiscation; knowledge or connivance must be shown.
Ravichandran v. Excise Inspector	2015(1) KLT 218	Positive	Supports that mere involvement of a vehicle does not automatically attach liability to the owner.
New India Assurance Co. Ltd v. State of Kerala	2011(1) KLT 429	Positive	Affirms that liability requires knowledge or involvement beyond mere ownership.
Rajesh.K. v. Sub Inspector of Police, Palakkad and Others	2015(4) KHC 253	Positive	Cited for principles relating to owner involvement and vehicle use in offences.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** ## **WP(C) NO. 27738 OF 2011** ## **PETITIONER:** NAZEER M.P.,S/O.PAREEKUNJU, AGED 31 YEARS, MANAPATTU HOUSE,PINARMUNDA,PERINGALA,, PALLIKARA,ERNAKULAM,PIN-683565. BY ADV SRI.PAUL K.VARGHESE ## **RESPONDENTS:** 1 STATE OF KERALA AND OTHERS EXCISE DEPARTMENT,GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM-PIN-01. 2 EXCISE COMMISSIONERTRIVANDRUM-PIN-01. 3 ADDITIONAL EXCISE COMMISSIONER TRIVANDRUM-PIN-01. 4 DEPUTY COMMISSIONER OF EXCISE EXCISE DIVISION OFFICE,KACHERYPPADY,, ERNAKULAM-PIN-18. ## **OTHER PRESENT:** BY GOVERNMENT PLEADER SRI.A S DHEERAJ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.27738 of 2011 2 ## **JUDGMENT** The petitioner, the registered owner of Toyota Innova Car bearing registration No.KL 40/A/8805 has filed this writ petition seeking to quash Exhibits P2 and P4 orders of the Deputy Commissioner of Excise and the Excise Commissioner, respectively. The short facts necessary for the disposal of the writ petition are as follows:- 2. On 15.03.2009, the Sub Inspector of Police, Palarivattom seized 1015 litres of spirit from a compound near Vennala and the Innova Car mentioned above was also seized in this connection by the Assistant Commissioner of Police. On 17.03.2009, an abkari case as Crime No.401 of 2009 was registered under section 55(a) of the Kerala Abkar Act 1 of 1077. After all the legal formalities, the seized vehicle was confiscated by the Government by proceedings of the 4[th] respondent vide Ext.P2 order. Ext.P2 order was challenged in revision and was confirmed by the Excise Commissioner. Earlier, an application Crl.M.P.613 of 2009 WP(C)No.27738 of 2011 3 under Section 451 of the Code of Criminal Procedure filed before the Judicial First Class Magistrate Court-1, Ernakulam in Crime No.401 of 2009 of Palarivattom Police Station for release of the vehicle in question, was dismissed by the learned Magistrate in view of Section 67B of the Abkari Act, holding that since the confiscation proceeding was pending, interim custody cannot be granted . The said order was challenged before this Court and by order in Crl.M.C.No.1795 of 2009 dated 09.6.2009, the application was allowed on finding that the prosecution, at that point of time did not have a case that the car was used for committing any abkari offence with the connivance or knowledge of the petitioner and thus, interim custody was directed to be granted to the petitioner subject to certain conditions. 3. Learned counsel for the petitioner submitted that the vehicle was given by the petitioner to one Shine on 13.03.2009 by entering into an agreement for lease and the vehicle had to be returned on 18.03.2009. He further WP(C)No.27738 of 2011 4 submits that it was the petitioner who through GPRS traced the location of the vehicle and complained to the police, which resulted in them seizing the vehicle. 4. Learned Government Pleader on the other hand submitted that there has been illegal transport of spirit and the confiscation proceeding was a consequence of such an offence being committed and the same showed the petitioner's involvement as the registered owner and that Exts.P2 and P4 orders does not suffer from any infirmity. Heard the learned counsel for the petitioner and the learned Government Pleader and perused the records. 5. After hearing the learned counsel on either side, I am of the firm view that Exhibits P2 and P4 order cannot be sustained for multiple reasons. 6. It is pertinent to note that, the petitioner was not arrayed as an accused despite being the owner of the vehicle. There is no change in circumstance after Ext.P1 order, as no material was brought out in investigation to implicate the WP(C)No.27738 of 2011 5 petitioner. The fact that the registered owner was not made an accused in the abkari offence would only have been because of the lack of proof to show his involvement in the offence. 7. 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 penalised. 8. The petitioner also finds support in the decisions of this Court in **Suraj K.R. v. Excise Inspector, Thrithala and Others** [2013(2) KHC 211], **Ravichandran v. Excise Inspector** [2015(1) KLT 218], **New India Assurance C. Ltd v. State of Keala** [2011(1) KLT 429] as well as **Rajesh.K. v. Sub Inspector of Police, Palakkad and Others** [2015(4) WP(C)No.27738 of 2011 6 KHC 253]. 9. Equally, when it is shown that the owner had no control or 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. 10. The petitioner in the instant case cannot be said to have given the vehicle for any illegitimate purpose. The inference made in Exhibits P2 that the vehicle was fitted with coil spring for carrying heavy load and this additional fitting could not have been carried out without the knowledge of the RC owner is made without anything on record to support such conclusion. The revisional order, Ext.P4 notices that fact that the petitioner was not made an accused, but confirmed Ext.P2 order with hardly any independent finding. I cannot find any reason to accept the findings in Exhibits P2 and P4. WP(C)No.27738 of 2011 7 11. In the circumstances, I hold that the orders passed by the Deputy Commissioner of Excise as well as for the Excise Commissioner confiscating the vehicle cannot be sustained and are contrary to the provisions of sections 67B and 67C of the Abkari Act. Resultantly, Exts.P2 and P4 orders are quashed. Needless to say, if the petitioner has provided any security for getting the interim custody of the vehicle, such security shall be released to the petitioner. Writ petition is allowed as above. **Sd/-** **MOHAMMED NIAS C.P. JUDGE** dlk 5.11.2021 WP(C)No.27738 of 2011 8 ## **APPENDIX** ## PETITIONER'S EXHIBITS EXHIBIT P1: TRUE COPY OF THE JUDGMENT IN CRL.M.C.NO.1795/2009 OF THE HON'BLE HIGH COURT, ERNAKULAM DATED 9.6.2009 EXHIBIT P2: TRUE COPY OF THE ORDER OF THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM NO. E7.2856/09 DATED 30.03.2010 EXHIBIT P3: TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE EXCISE COMMISSIONER, TRIVANDRUM DATED 10.06.2011 EXHIBIT P4: TRUE COPY OF THE ORDER OF THE EXCISE COMMISSIONER, TRIVANDRUM NO.XA4 – 15038 DATED 3.9.2011 EXHIBIT P5: TRUE COPY OF THE NOTICE NO.E7.2856/09 OF THE EXCISE DEPUTY COMMISSIONER, ERNAKULAM DATED 29.9.2011 ## **RESPONDENTS EXHIBITS** EXHIBIT R4(a): TRUE COPY OF THE INVESTIGATION REPORT. EXHIBIT R4(b): TRUE COPY OF THE APPEAL PETITION WAS REJECTED IN ACCORDANCE WITH LAW.