NIKHIL T.M. v. Deputy Excise Commissioner, Excise Inspector and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938** **WP(C).No. 17099 of 2016 (J) ----------------------------** **PETITIONER(S): ------------NIKHIL T.M. S/O MUTHU, AGED 24 YEARS, THOPPIL (H) P.O. KOLITHATTU KANNUR DISTRICT.** ||**BY ADV. SRI.CIBI THOMAS**| |---|---| |**RESPONDENT(S):**|| |**--------------**|| |**1.**|**THE DEPUTY EXCISE COMMISSIONER**| ||**OFFICE OF THE DEPUTY EXCISE COMMISSIONER,**| ||**KANNUR-670 001.**| |**2.**|**THE EXCISE INSPECTOR**| ||**EXCISE RANGE OFFICE, IRITTY-670 703.**| |**3.**|**STATE OF KERALA**| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEPARTMENT OF TAXES SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| **R1-3 BY GOVERNMENT PLEADER SRI V VIJULAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 17099 of 2016 (J)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1: A TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE PETITIONER BEFORE THE IST RESPONDENT.** **EXHIBIT P2: A TRUE COPY OF THE ORDER ISSUED BY THE IST RESPONDENT DATED 21.03.2016.** **EXHIBIT P3: A TRUE COPY OF THE JUDGMENT IN WPC 15281/2016.** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** **/TRUE COPY/** **P.A TO JUDGE** **LSN** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.17099 of 2016 ----------------------------------------------Dated this the 17[th] day of June, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P2 to the extent it imposes condition No.2 directing deposit of Rs.1,00,000/- towards market value of the vehicle bearing registration No.KL 13-G 2940 involved in an Abkari offence, facing adjudication proceedings, and for other related reliefs. Material facts for the disposal of the writ petition are thus: 2. Petitioner is the registered owner of jeep bearing registration No.KL 13-G 2940, which was seized by the 2[nd] respondent on 14.08.2015, alleging commission of offence punishable under Sec.58 of the Kerala Abkari Act [for short, 'the Act']. Thereupon, the vehicle was taken into custody by the 2[nd] respondent along with the articles. The allegation is that petitioner was found transporting 21 litres of Indian Made Foreign Liquor in the vehicle, meant for sale in Puducherry State only. 2 **W.P.(C) No.17099 of 2016** 3. Matters being so, petitioner has submitted Ext.P1 application dated 19.02.2016, seeking interim custody of the vehicle, before the 1[st] respondent. First respondent thereupon passed Ext.P2 order dated 21.03.2016, granting interim custody of the vehicle on certain conditions. Among other conditions, condition No.2 is that the petitioner shall deposit an amount of Rs.1,00,000/- being the market value of the vehicle at the District Treasury, Kannur, within 15 days of receipt of Ext.P2. Aggrieved by the said condition in Ext.P2, petitioner has approached this Court by filing this writ petition. 4. 1[st] respondent has filed a counter affidavit refuting the allegations and claims and demands. It is also contended that, the order impugned is in accordance with Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996. It is also urged that Sec.53B of the Act has no relevance at all after the competent officer passed an order either under Sec.67B or the Rules temporarily releasing the vehicle. Moreover, it is also contended that, such a situation is taken care of under Sec.53B itself. 3 **W.P.(C) No.17099 of 2016** 5. Heard learned counsel for the petitioner and the learned Government Pleader. 6. The predominant contention raised by learned counsel for the petitioner in this writ petition is that, consequent to introduction of Sec.53B of the Abkari Act, the 1[st] respondent is bound to release the vehicle on bond. Learned counsel has also contended that this issue is covered by the judgment of this Court in _**'Abdul Nazer v. State of Kerala**_ ' [2014 (2) KLT 1073]. According to the learned counsel, the 1[st] respondent should have released the vehicle on a bond rather than insisting for cash security, and since the 1[st] respondent has not followed Sec.53B and the decision rendered by this Court, the action of the 1[st] respondent is totally illegal and arbitrary. Thus, the crux of the matter involved in this writ petition revolves round Sec.53B of the Act, which read thus: _“53B. Jurisdiction of courts on articles seized.-Whenever any vehicle or other conveyance used for committing any offence is seized or detained under this Act, and if any court finds that it shall be released temporarily, it shall do so with direction to execute sufficient bond by way of cash security equivalent to the market value of such vehicle or conveyance, to be fixed by the Mechanical Engineer of the Excise Department or any Mechanical Engineer of or above_ 4 **W.P.(C) No.17099 of 2016** _the rank of an Assistant Executive Engineer of the State Public Works Department, for production of such vehicle or conveyance on demand before the court or authorised officer and such order shall not prevent the authorised officer from taking or continuing action under Section 67B of this Act.”_ 7. On a reading of Sec.53B, what I could gather is that whenever any vehicle or other conveyance etc. used for committing any offence is seized or detained under the Act and if any Court finds that it shall be released temporarily, it shall do so in accordance with the stipulations contained thereunder. However, on reading the said provision further, it can be seen that the order passed by the Court or the authorized officer shall not prevent the authorized officer from taking or continuing action under Sec.67B of the Act. 8. In order to understand the real import of Sec.53B, I think it is only proper that a reference to Sec.53 is made. Sec.53 of the Act reads as follows: _“53. Police to take charge of articles seized:- All Officers in charge of Police Stations shall take charge of and keep in safe custody pending the orders of a Magistrate or an Abkari Inspector, all articles seized under this Act which may be delivered to them and shall allow any Abkari Officer who may accompany such articles to the Police Station, or who may be_ **W.P.(C) No.17099 of 2016** 5 _deputed for the purpose by his superior officer, to affix his seal to such articles and to take samples of and from them. All samples so taken shall also be sealed with the seal of the officer in charge of the Police Station.”_ 9. Therefore, on a reading of Sec.53, it is categoric and clear that all officers in charge of police stations shall take charge of and keep in safe custody, pending the orders of a Magistrate or an Abkari Inspector, all articles seized under this Act, which may be delivered to them etc. etc. Therefore, in order to understand the real intention of Sec.53B, Sec.53 of the Act is a necessary corollary. Both provisions are to be read together harmoniously in order to provide a meaningful construction to Sec.53B of the Act. If done so, it can be seen that Sec.53B is brought to the statute book for regulating the situation during the interregnum period of confiscation proceeding and before passing any order by the said officer either under Sec.67B of the Act/or under Rule 4(2) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 [hereinafter called 'the Rules']. 6 **W.P.(C) No.17099 of 2016** 10. In my considered opinion, it thus means, if and when the vehicle seized under the Act is produced before a Magistrate or an Abkari Inspector, the Magistrate or Abkari Inspector is vested with powers to release the vehicle to its owner on a bond till such time an order either interim or final, passed by the officer under Sec.67B or under the Rules. On a reading of the judgment in _**'Abdul Nazer'**_ ( _supra_ ), this is the position of law laid down by the learned Single Judge. The question considered in the said case was, whether the Magistrate was right in imposing deposit of cash security, rather than directing to furnish bond as provided under Sec.53B of the Act. The said situation is not available in this writ petition for the reason that under Rule 4(2)(a), the officer has passed an order directing the petitioner to comply with the condition of cash security, in order to release the vehicle, which is under challenge in this writ petition. Therefore, when such an order is passed by the officer, the same is definitely within the realm of power conferred on the officer under the Act and Rules. 11. That apart, learned counsel for the petitioner has invited my attention to Rule 4(2) of the Kerala Abkari (Disposal **W.P.(C) No.17099 of 2016** 7 of Confiscated Articles) Rules, 1996, to canvass the proposition that Rule 4(2)(a) is violative of Sec.53B of the Abkari Act and the learned counsel contended that, a subordinate legislation in violation of the statutory provision under Sec.53B of the Abkari Act cannot be sustained, and therefore _de hors_ the said rule, 1[st] respondent ought to have released the vehicle to the petitioner by receiving a bond for the value of the vehicle. On a reading of sub-rule 2(a) and (b) of Rule 4 of the said Rules, it is categoric and clear that the said Rules are provided in order to cater the period between seizure and final order of confiscation. It is thus invoking that power, the 1[st] respondent has passed Ext.P2 order releasing the vehicle temporarily to the petitioner by imposing cash security, equivalent to the market value of the vehicle fixed by the Mechanical Engineer of the Excise Department. That being so, petitioner is not entitled to succeed with respect to the said argument also, especially in terms of the view adopted by me above, regarding the purport of Sec.53B of the Act. 12. That apart, reading together Secs.53 and 53B, it is crystal clear that the Court mentioned in Sec.53B is relating to a Magistrate as prescribed under Sec.53B of the Act. This is 8 **W.P.(C) No.17099 of 2016** discussed since learned counsel has addressed an argument that, 'court' mentioned in Sec.53B is any court including a court exercising the power under Article 226 of the Constitution of India. In my considered opinion, the said argument has no legal sustenance, because, it is clearly stated thereunder, that the vehicle so released on bond is liable to be produced before the court on demand. On a thoughtful consideration of the entire provision of Sec.53B, it is evident that a procedure is established thereunder which is relative to Sec.53 of the Act. Such a procedure is alien and unworkable to a writ court under ordinary circumstances. 13. On the other hand, learned Government Pleader contended that the issue with respect to the interference of a writ court in an order passed by an officer under Sec.67B is considered by a Division Bench of this Court in ' _**Karthikeyan**_ ## _**v. Deputy Commissioner of Excise, Ernakulam and**_ _**another**_ ' [2011(1) KHC 138 DB]. Therein, the question considered was with respect to Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, and this Court held that if the manner of doing a particular act is prescribed under any statute, that act must be done in that ## **W.P.(C) No.17099 of 2016** 9 manner or not at all. The Division Bench had considered the said question on a reference made doubting the judgment of this Court in ' _**Dr. Ommen Mathew & others v. Excise Commissioner, Thiruvananthapuram & others'**_ [2010 (2) KHC 617], wherein the vehicle was ordered to be released without insisting cash deposit. However, this Court held that the judgment in _**'Dr. Ommen Mathew's**_ case ( _supra_ ) was decided with specific reference to the facts of the said case. To the said point raised by the learned Government Pleader, learned counsel for the petitioner submitted that, the Division Bench in _**Karthikeyan's**_ case ( _supra_ ) has decided the issue without referring to Sec.53B of the Act. But however, I find that the said judgment was rendered by this Court obviously bearing in mind the provisions of law under the statute book. No other interpretation can be provided merely because a reference was not made to Sec.53B of the Abkari Act. In that view of the matter, I am satisfied that Ext.P2 order passed by the 1[st] respondent, incorporating also a condition of cash security does not suffer from any illegality or vice of arbitrarines, entitling the petitioner to seek judicial review under Article 226 of the Constitution of India. 10 **W.P.(C) No.17099 of 2016** 14. Resultantly, writ petition fails and accordingly it is dismissed. However, since the time granted for complying with condition No.2 in Ext.P2 has expired, time is extended for a further period of 20 days from today, to comply with the said condition. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/08.06.2016