Nishad Punnayur Sekharan v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 8TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940** **WP(C).No. 18189 of 2018** **.............** ## **PETITIONER** **NISHAD PUNNAYUR SEKHARAN, AGED 37 YEARS, S/O.KAMALU, PUNNAYUR HOUSE, PUNNAYUR POST, THRISSUR.** **BY ADV.SRI.L.RAJESH NARAYAN IYER** ## **RESPONDENTS:** **1. STATE OF KERALA,** - **REP BY SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT), THIRUVANANTHAPURAM-695001.** **3. DEPUTY EXCISE COMMISSIONER, THRISSUR - 68001** **4. EXCISE INSPECTOR, EXCISE RANGE OFFICE, WADAKANCHERY-680582.** ## **BY ADV. SRI. K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-08-2018 THE COURT ON 08-11-2018 DELIVERED THE FOLLOWING:** 2 WP(C) No.18189 OF 2018 ## **JUDGMENT** The petitioner, who is the registered owner of a Maruti Ritz car bearing registration No.KL-08/AV-1802 covered by Ext.P1 certificate of registration has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 17.05.2018 of the 2[nd] respondent Additional Excise Commissioner (Enforcement) and a writ of mandamus commanding the respondents to release his car bearing registration No.KL-08-AV-1802. 2. On 04.06.2018, when this writ petition came for admission, the learned Government Pleader was directed to get instructions and the matter was adjourned to 12.06.2018 for further consideration. This Court ordered that, in the meanwhile, further proceedings pursuant to Ext.P4 order shall be kept in abeyance. The said interim order was extended from time to time. 3. A statement has been filed on behalf of the 3[rd] respondent Deputy Excise Commissioner, opposing the reliefs sought for in this writ petition. The respondents have also filed 3 WP(C) No.18189 OF 2018 I.A.No.10170/2018 seeking an order to vacate the interim order granted in this writ petition. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 5. Going by the averments in the writ petition, the petitioner's motor car bearing registration No.KL-08/AV-1802 was hired by one Mr.Unais for touring purpose, from one Mr.Jishnu, who is a relative of the petitioner, who was having custody of that vehicle. The vehicle was seized by the 4[th] respondent Excise Inspector on 15.12.2016, alleging transportation of 125 liters Indian Made Foreign Liquor in 250 plastic bottles, which are intended for consumption in Puducherry. Exhibit P2 is the crime and occurrence report dated 15.12.2016 and Ext.P3 is the seizure mahazar. Based on Ext.P2, Crime No.157/2016 has been registered under Section 58 of the Abkari Act, 1077. 6. The proceedings initiated by the 3[rd] respondent Deputy Excise Commissioner culminated in an order dated 06.02.2018, whereby the vehicle was ordered to be confiscated. Against the 4 WP(C) No.18189 OF 2018 said order, the petitioner filed an appeal dated 14.03.2018, which ended in dismissal by Ext.P4 order of the 2[nd] respondent dated 17.05.2018. Feeling aggrieved by Ext.P4 order, the petitioner is before this Court in this writ petition. 7. Relying on Ext.P5 agreement dated 12.12.2016, which is one executed between Mr.Jishnu and Mr.Unais, the petitioner would contend that he does not have any connection with the above crime and since the accused, who was not having any criminal antecedents, had hired the vehicle for touring purposes, the petitioner was not having any knowledge about the commission of offence nor he is in any manner responsible for that offence. In such circumstances, his vehicle ought not to have proceeded against and confiscated. 8. Per contra, in the statement filed on behalf of the 3[rd] respondent, it is contended that on 15.12.2016 at about 3.00 pm, the 4[th] respondent Excise Inspector and party seized the petitioner's vehicle bearing registration No.KL-08/AV-1802 along with 125 liters of illicit liquor. Three persons were arrested and the 4[th] respondent registered Crime No.157/2016 of Excise Range 5 WP(C) No.18189 OF 2018 Office, Wadakancherry under Section 58 of the Abkari Act. The vehicle was produced before the 3[rd] respondent on 16.12.2016 and the same was entrusted to the Excise Range Office, Wadakancherry for safe custody until further orders. As per the registration particulars of the vehicle, received from the Motor Vehicles Department, the petitioner is the registered owner. Therefore, a show-cause notice under Section 67C of the Abkari Act was issued to the petitioner by post, on 29.12.2016, which he acknowledged on 10.01.2017. The petitioner appeared for personal hearing before the 3[rd] respondent Deputy Excise Commissioner on 12.01.2017 and his statement was recorded. 9. Before the 3[rd] respondent, the petitioner contended that the accused used the hired vehicle for transportation of Indian Made Foreign Liquor without his knowledge, and he does not have any connection with the case. After considering the arguments of the petitioner, the 3[rd] respondent passed an order dated 06.02.2018 confiscating the vehicle, under Section 67B of the Abkari Act. Challenging the said order, the petitioner filed an appeal before the 2[nd] respondent Additional Excise Commissioner 6 WP(C) No.18189 OF 2018 ## (Enforcement). 10. Before the appellate authority, the petitioner produced a photocopy of Ext.P5 agreement dated 12.12.2016 to prove the hiring of the vehicle by Mr.Unais from Mr.Jishnu. The petitioner, who is the registered owner of vehicle, is not a party to Ext.P5 agreement and that agreement was executed on a white paper, affixing court fee stamps. The appeal filed by the petitioner before the 2[nd] respondent, under Section 67E of the Abkari Act ended in dismissal by Ext.P4 order dated 17.05.2018. 11. The document marked as Ext.P1 is the certificate of registration of petitioner's motor car bearing registration No.KL08/AV-1802. As per the certificate of registration, the class of the vehicle is LMV motor car, which is registered as a non-transport vehicle. According to the petitioner, the accused Mr.Unais hired the said vehicle from Mr.Jishnu, on the strength of Ext.P5 agreement dated 12.12.2016. Admittedly, Exhibit P5 agreement is not one executed by the petitioner, but one executed on behalf of the petitioner by Mr.Jishnu, whereby he has permitted Mr.Unais to take that vehicle for the period from 12.12.2016 to 7 WP(C) No.18189 OF 2018 ## 17.12.2016 for touring purpose. 12. The pleadings and materials on record would show that the petitioner never disputed the seizure of the vehicle by the 4[th] respondent Excise Inspector and party on 15.12.2016, while transporting 125 liters of Indian Made Foreign Liquor. The said fact is evident from Ext.P2 crime and occurrence report and also Ext.P3 seizure Mahazar. According to the petitioner, the illegal transportation of Indian Made Foreign Liquor in the said vehicle on 15.12.2016 was without his knowledge and as such, the vehicle cannot be proceeded against under Section 67B of the Abkari Act. Admittedly, as per Ext.P5 agreement, the possession of the vehicle was handed over to Mr.Unais on 12.12.2016, for a period of seven days, on payment of a daily rent of Rs.1000/-. Since the petitioner's vehicle is a non-transport vehicle, he should not have permitted Mr.Jishnu to part with possession of that vehicle to third parties, after accepting rent, by executing an agreement like Ext.P5. 13. Section 67B of the Abkari Act deals with confiscation by Abkari Officers in certain cases. Section 67B reads thus:- 8 WP(C) No.18189 OF 2018 ## **"67B. Confiscation by Abkari Officers in certain** **cases.-** (1) Notwithstanding anything contained in this Act or other law for the time being in force, where any liquor, intoxicating drug, materials, still, utensil, implement or apparatus or any receptacle, package or covering in 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 the sub- section and he is satisfied that an offence under 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 authorized officer may also order confiscation of all contents thereof. (3) When making an order of confiscation under sub-section (2), the authorized officer may also order that such of the 9 WP(C) No.18189 OF 2018 properties to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed. 14. Section 67C of the Abkari Act deals with issue of showcause notice before confiscation under Section 67B. The said provision reads thus:- “ **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 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 10 WP(C) No.18189 OF 2018 the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.” 15. In the context of Section 67B and sub-section (2) of Section 67C of the Abkari Act, the Division Bench of this Court in **Sub Inspector of Police, Cherpulassery and others v.** **K.Rajesh [2017 (4) KHC 917]** held that the exception drawn conferring a right upon the owner to save his vehicle from confiscation under Section 67B of the Act is subject to the proof to be adduced by him, to the satisfaction of the authorized officer, that the vehicle was used to carry the contraband without his knowledge or connivance, his agent, if any, and the person in charge of the conveyance and that each of them had taken all reasonable and necessary precautions against such use. The Division Bench held further that, in order to get the benefit of sub-section (2) of Section 67C of the Act, the owner has to satisfy all the four requirements under sub-section (2) of Section 67C simultaneously. Paragraphs 8 and 9 of the said decision read thus; “8. The provision for confiscation of a vehicle carrying a 11 WP(C) No.18189 OF 2018 contraband is stipulated under Section 67B of the Act, which is as part of the Scheme of the Statute to prevent the persons concerned in indulging such activities from committing the offences, which are detrimental more to the society and the public at large. Section 67B(2) clearly stipulates that, when the authorised officer is satisfied that an offence under the Act has been committed with involvement of the property/vehicle seized, it is liable to be confiscated under the Act. While discharging the said duty by the authorised officer, the procedure to be followed in Section 67C(1) of the Act, stipulates that no order of confiscation shall be made, unless the person from whom the vehicle/property is seized, is given a notice in writing informing him on the ground on which it was proposed to be confiscated and giving an opportunity to make a representation in writing and reasonable opportunity of being heard in the matter. Once these requirements are satisfied, then the order of confiscation may follow, but still there is an exception by which the vehicle can be spared. The only way in which the owner can escape from the liability of confiscation under Section 67B is the situation under Section 67C(2) as extracted already. It is quite clear that the exception drawn conferring a right upon the owner to save his vehicle from confiscation under Section 67B of the Act is subject to the proof to be adduced by him, to the satisfaction of the authorized officer, that the vehicle was used to carry the contraband without his knowledge or connivance, his agent, if any, and the person in charge of 12 WP(C) No.18189 OF 2018 the animal, cart, vessel or conveyance and that each of them had taken all reasonable and necessary precautions against such use. 9. The conditions to be satisfied by the owner of the vehicle proving the requirements to get the benefit of Section 67C(2) are: - 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.” In other words, the expression used in the statute is not with the conjunction ‘ **or'** but ' **and** '. The owner has to satisfy all the four requirements simultaneously, so as to get the benefit of this provision. It is not enough, if the owner satisfies that he was not having any knowledge with regard to the transportation of the contraband in the vehicle. He has also to satisfy with reference to above referred instances in relation to his agent, if any, and also the person who was in charge of the vehicle. This being the position, the observation made by the learned single Judge that the 'burden of proof was upon the prosecution' is not correct, being contrary to the statutory prescription. We respectfully disagree with the observation and reasoning given by the learned single Judge.” 13 WP(C) No.18189 OF 2018 16. In **Rajesh's case (** _**supra**_ **)** , a decision relied on by the learned counsel for the petitioner, this Court was dealing with a case in which the owner of a Jeep bearing registration No.KL09/E-7304, gave it on hire to the licencee of a toddy shop for the purpose of transporting toddy. Exts.P1 and P2 permits showed that the vehicle was authorised for transportation of toddy. On 13.04.2004, the Police intercepted the vehicle, while it was transporting toddy, and found on inspection that apart from transporting toddy, the vehicle was also carrying 70 litres of spirit, a prohibited substance. The Division Bench observed that, once it is not established that the owner of the vehicle has knowledge or that he has connived with the persons, who are illegally transporting any contraband, he cannot be penalised, merely because his vehicle was involved in the offence. 17. In **Rajesh's case (** _**supra**_ **)** , the Division Bench held that the question whether the accused was acquitted in the criminal case in respect of the offence under the Abkari Act or whether he was let free pursuant to compounding of the offence under Section 67A of the Act, is not a relevant or significant 14 WP(C) No.18189 OF 2018 aspect in pursuing steps under Section 67B of the Act, which deals with the power of confiscation. The Division Bench held further that the owner had to prove, to the satisfaction of the authorized officer, as to the four different requirements under the said provision, making it clear that the 'burden of proof' was entirely upon the owner to adduce evidence and to prove the cumulative requirements of sub section (2) of Section 67 of the Act. It was held further that even if there was no knowledge or connivance on the side of the owner, he had to establish that his agent and the person in charge of the vehicle were also not having any knowledge and that, each of them had taken necessary and reasonable precautions against such use. Paragraphs 16 and 17 of the judgment read thus; “16. Another important aspect to be noted is that, the learned single Judge has apparently placed some reliance on the acquittal of the accused in the criminal case, pursuant to the crime registered against them, as noted in 'paragraph 16' of the judgment under challenge. Though it has been observed in the last sentence that the factum of acquittal is not a compelling factor for release of the vehicle, the basic aspect to be noted is that, 'prosecution' is not at all a prerequirement/ _sine-qua non,_ so as to proceed with steps 15 WP(C) No.18189 OF 2018 under Section 67B of the Act. The said provision s tarts with _'non-obstante'_ clause, clearly stipulating that the course to be proceeded under the said provision is notwithstanding anything contained in the 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). The scope of the said provision was considered by a learned single Judge of this Court as per the decision reported in **Shaiju v.** ## **Assistant Excise Commissioner [2008(3)KLT 78],** clearly holding that, irrespective of whether the accused is prosecuted or not for the offence involved and irrespective of the outcome involved in an Abkari offence, the vehicle is liable for confiscation. We affirm the said view and hold that the question whether the accused was acquitted in the criminal case in respect of the offence under the Abkari Act or whether he was let free pursuant to compounding of the offence under Section 67A of the Act, is not a relevant or significant aspect in pursuing steps under Section 67B of the 16 WP(C) No.18189 OF 2018 Act dealing with the power of confiscation. 17. It is brought to the notice of this Court by the learned Government Pleader that, another Division Bench of this Court had also occasion to consider the scope of Sections 67B and the benefit under Section 67C(2) of the Act enabling the owner to have his vehicle released in the given circumstances. The said verdict was rendered on 5.10.2016 in W.A.No. 2652 of 2015 arising from W.P.(C) No. 16855 of 2015 (to which one of us - Shircy V., J was a member). The writ petitioner in the said case was the owner of the vessel and he had given the said vessel on lease to another concern by name M/s. Green Bay Leisure Management Private Limited for a period of five years. In the course of business, the lessee had let it out to another concern by name “My Kochi on line”, who organised a DJ party on the vessel on 27.7.2014. The authorities intervened on that day and on raid, seized 125.5 litres of Tin Beer, 3.950 litres of IMFL and 5 gms. of dry Ganja, leading to registration of Crime No. 1724 of 2014 of the Central Police Station, Ernakulam for the offences under Section 55(i) of the Abkari Act and Section 20(b)(ii) of the N.D.P.S. Act. In the course of further proceedings, the vessel seized was confiscated by the competent authority. The statutory remedy by way of appeal and the revision ended up in dismissal, which led to the writ petition filed by the owner. The main contention was that ,he was abroad and was having no knowledge as to the involvement of the offence in any manner and hence his vessel had to be released. The said plea was accepted by the 17 WP(C) No.18189 OF 2018 learned single Judge, who ordered the vessel to be released, for not proving the factum of knowledge of the owner at the relevant time. The relevant provisions of the Statute, particularly Section 67C(1) & (2) were adverted to by the Court and the mandate under Section 67C(1) of the Act (that no order of confiscation shall be made, unless the person from whom the subject matter is seized, is given notice in writing informing him of the grounds on which it was proposed to be confiscated and also as to the necessity to give an opportunity of hearing) was explained. Once these requirements are satisfied, the only way in which the owner of the vessel can escape from the consequence of confiscation was held as stipulated under Section 67C(2) of the Act. After extracting Section 67C(2), the Bench held that the owner had to prove, to the satisfaction of the authorized officer, as to the four different requirements under the said provision, making it clear that the 'burden of proof' was entirely upon the owner to adduce evidence and to prove the cumulative requirements of sub-section (2) of Section 67 of the Act. The submission made on behalf of the owner that he was abroad and was not having knowledge was repelled by the Bench, holding that even if there was no knowledge or connivance on the side of the owner, he had to establish that his agent and the person in charge of the vehicle were also not having any knowledge and that each of them had taken necessary and reasonable precautions against such use. The said requirements were held as admittedly not satisfied and accordingly, the appeal filed by the State was 18 WP(C) No.18189 OF 2018 allowed, setting aside the verdict passed by the learned single Judge. We are in full agreement with the reasoning given in the said verdict.” 18. In **Jacob Thomas @ Sabu Paster v. Assistant Excise Commissioner, Palakkad and another [2015 (5)** **KHC 514]** , this Court held that the burden cast on the owner of the vehicle under Section 67C of the Act is positive in terms. In other words, mere blanket denial concerning one's lack of knowledge is of no consequence. It is for the owner of the vehicle to explain in positive terms under what circumstances he lost possession or control over the vehicle and in what circumstances, if at all he had knowledge, the vehicle had been put to illegal use. Unless such explanation is forthcoming, it cannot be said that, the authorities can presume lack of knowledge on the part of the owner of the vehicle in terms of Section 67C. 19. In **Rajesh K. v. Sub Inspector of Police, Palakkad and others [2015 (4) KHC 253]** , another decision relied on by the learned counsel for the petitioner this Court held that when it is found that the owner has hired out his vehicle for legitimate purpose for transportation of toddy with permit and in the 19 WP(C) No.18189 OF 2018 absence of materials to show that owner of vehicle had either knowledge concerning illegal transportation or has connived in that illegal business, it cannot be said that confiscation is justified. In the said decision, this Court was dealing with a case in which the liquor transported in the vehicle was not a contraband, much less illicit, the whole offence, if proved, amounts to a person carrying an excess quantity of liquor. In such circumstance, this Court held that the petitioner is entitled to the benefit of sub-section (2) of Section 69C of the Act, as he has neither the knowledge or complicity in the alleged crime. Paragraphs 16 and 17 of the judgment read thus; “16. In the present instance, a perusal of the entire record does not lead to even a remote conclusion that the petitioner has been guilty of illegally transporting any prohibited substance, not even that he had any complicity. In fact, he was made an accused in the crime registered pursuant to the seizure of the vehicle, only because he was the owner of the vehicle. It is also an incontrovertible fact that the criminal proceedings in Crime No.85/2004 eventually ended in acquittal of the accused, including the petitioner, though the factum of acquittal is not a compelling factor for the release of the vehicle. 17. In the above factual background, it is requisite to 20 WP(C) No.18189 OF 2018 examine the ratio in Suraj K.R. (supra), in which this Court squarely addressed the issue of knowledge or complicity on the part of the owner of the vehicle and, in that process, held thus: “Of course it is for the petitioner to prove that he took all reasonable and necessary precautions against the use of his vehicle, in violation of the provisions of the Abkari Act. I am of opinion that the precaution that normally an owner of a lorry can take in respect of transport of toddy is that the transport is supported by a valid permit. It is not disputed before me that for the transport in question the licencee has obtained a valid permit. The only allegation in respect of the transport is that the toddy so transported contained traces of chloral hydrate. It is plain for anybody to see that the owner of a lorry who hires out his vehicle for transport of toddy cannot in addition to seeing that the transport is in accordance with valid permit for such transport, take the trouble of taking sample from the toddy and testing it in the chemical laboratory to see that it does not contain any adulterating material. Of course, if there was an additional allegation that the petitioner was party to the adulteration as well, things would have been different. But, the respondents have no raised such an allegation at all. In fact, it is submitted at the bar that even the licencees and others who were prosecuted under the Abkari Act, were acquitted holding that chloral hydrate was, at the relevant time, not a prohibited substance, the presence of which in the toddy was the reason for holding that the toddy is adulterated. Of course the fact that the petitioner was the 21 WP(C) No.18189 OF 2018 brother of the licencee may have given some suspicion of the complicity of the petitioner also in the transport. But, suspicion cannot take the place of proof. Simply because the owner of the lorry was the brother of the licencee under law there is no presumption that the brother also must have been aware of the illegality of the transport.” 20. In **Sebastian Joseph v. State of Kerala and others [2016 (1) KLT 437]** another decision relied on by the learned counsel for the petitioner, this Court held that where initial burden of lack of knowledge of excess transport of liquor is discharged by adducing evidence by independent witness, culpability cannot be attributed to the owner of the vehicle, in the absence of any incriminating circumstances. Paragraphs 22 to 24 of the said decision reads thus; “22. True, mere production of evidence, independence or otherwise, does not absolve the owner of the crime; nor can it be said that the examination of witnesses is a conclusive proof as regards the owner’s innocence. All that this Court drives home is that to discharge the burden cast on him, the petitioner has examined two witnesses. The authorities could find nothing adverse against the petitioner to bring home his guilt. They did not elicit anything adverse from the evidence of the petitioner’s witnesses, either. Had they got inculpatory statements from the witnesses, the authorities would have 22 WP(C) No.18189 OF 2018 certainly referred to them in their orders. It was not to be. 23. This Court in **Pareed Musaliyar v. State of Kerala** and **Ravindran v. Excise Inspector** , having elaborately appreciated the statutory scheme of Section 67 of the Act, has tellingly observed that though the owner of the vehicle has a positive burden cast on him to establish that he has neither complicity in nor knowledge of the crime, the provision of confiscation has to be invoked with certain caution and circumspection. 24. Given the fact that the vehicle is worth about Rs.18,00,000/- and further given the fact that the petitioner has successfully discharged his burden by examining independent witnesses before the primary authority that he had no knowledge of the alleged crime, more particularly given the further fact that he was not even in the town on that particular day when the vehicle was seized, I am of the considered opinion that Ext.P8 order cannot be sustained. Accordingly, it is set aside.” ## 21. In **State of Kerala and others v. Manual Vinod** [judgment dated 05.10.2016 in WA No.2652 of 2015], a Division Bench of this Court held that a reading of sub-section (2) of Section 67C of the Abkari Act would show that the authorised officer is prohibited from passing an order of confiscation when the owner proves to the satisfaction of the authorised officer that the vessel, conveyance, etc. were used in the commission of the 23 WP(C) No.18189 OF 2018 offence, without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the vessel or other conveyance and that, each of them had taken all reasonable and necessary precautions against such use. A reading of this provision also makes it clear beyond all doubt that the burden of proof is entirely on the owner and it is for the owner to adduce evidence and prove the cumulative requirements of sub-section (2). In other words, the owner can take advantage of this Section only if he succeeds in proving that the offence was committed without his knowledge or connivance of the owner himself, his agent, if any, and without the knowledge or connivance of the person in charge of the vessel. In addition to this, they should also prove that each one of them had taken all reasonable and necessary precautions against such use. 22. In the instant case, the vehicle owned by the petitioner is a non-transport vehicle, as evident from Ext.P1 certificate of registration. Going by the averments in the writ petition, the said vehicle was hired by Mr.Unais for touring 24 WP(C) No.18189 OF 2018 purpose, from Mr.Jishnu, who is a relative of the petitioner. Such entrustment was on the strength of Ext.P5 agreement, for a period of seven days from 12.12.2016, on payment of daily rent of Rs.1000/-. In the writ petition, the petitioner has no case that his vehicle covered by Ext.P1 certificate of registration, which is a non-transport vehicle, was entrusted to a third party for touring purpose, for the first time. The fact that the entrustment of that vehicle to Mr.Unais on 12.12.2016 was on the strength of Ext.P5 agreement executed with Mr.Jishnu would indicate that the petitioner used to entrust his vehicle to third parties after collecting daily rent. In such circumstances, the petitioner cannot now contend that his vehicle was used for illegal transportation of liquor on 15.12.2016 without his knowledge or connivance or that of Mr.Jishnu and that, each of them had taken all reasonable and necessary precautions against any illegal use of that vehicle. 23. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, in the light of the law laid down in the decisions referred to supra, I find absolutely no grounds to interfere with 25 WP(C) No.18189 OF 2018 the reasoning of the 2[nd] respondent Additional Excise Commissioner (Enforcement) in Ext.P4 order dated 17.05.2018. As the petitioner failed in proving that the offence was committed without his knowledge or connivance, or that of Mr.Jishnu, and that, each of them had taken reasonable and necessary precautions against any illegal use of that vehicle, the order of confiscation dated 06.02.2018 of the 3[rd] respondent Deputy Excise Commissioner, which is confirmed in appeal by the 2[nd] respondent Appellate Authority in Ext.P5 order dated 17.05.2018, warrants no interference in this writ petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 26 WP(C) No.18189 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION. EXHIBIT P2 TRUE COPY OF THE CRIME AND OCCURRENCE REPORT DATED 15-12-2016. EXHIBIT P3 TRUE COPY OF THE SEIZURE MAHAZAR. EXHIBIT P4 TRUE COPY OF THE ORDER BEARING NO.30/A.P.L/2018 DATED 17-5-2018. EXHIBIT P5 TRUE COPY OF THE AGREEMENT DATED 12-12-16.** ## **RESPONDENTS' EXTS: NIL** ## **TRUE COPY** **P.A. TO JUDGE**