P.K. Babu v. The Excise Inspector, North Paravoor Excise Range, Ernakulam District; The Asst. Excise Commissioner; The Commissioner of Excise

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934** **WP(C).No. 4172 of 2008 (V) --------------------------** **PETITIONER(S):** **--------------------------** **P.K.BABU, AGED 51 YEARS, S/O.KUMARAN, PARASSERY HOUSE, PARAVOOTHARA KARA, PARAVUR VILLAGE, ERNAKULAM DISTRICT.** **BY SRI.C.C.THOMAS,SENIOR ADVOCATE ADV.SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENT(S):** **-----------------------------** **1. THE EXCISE INSPECTOR,** - **NORTH PARAVOOR EXCISE RANGE, ERNAKULAM DISTRICT.** **2. THE ASST. EXCISE COMMISSIONER,** - **O/O. THE ASST. EXCISE COMMISSIONER, ERNAKULAM.** **3. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM.** **R1 TO R3 BY GOVERNMENT PLEADER SRI.P.K.ABDUL RAHIMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.4172/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE MAHAZAR DATED 30/8/2006 PREPARED BY THE EXCISE INSPECTOR, IRINGALAKKUDA.** - **P2 COPY OF THE ORDER NO.E7-6131/06 DATED 8/6/2007 PASSED BY THE 2ND RESPONDENT.** - **P3 COPY OF THE ORDER NO.44/APL/2007/AC(X) DATED 1/11/2007 PASSED BY THE ADDL.EXCISE COMMISSIONER, THIRUVANANTHAPURAM.** - **P4 COPY OF THE NOTICE DATED 13/12/2007 ISSUED BY THE 3RD RESPONDENT.** - **P5 COPY OF THE REPLY DATED 2/1/2008 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **P6 COPY OF THE ORDER NO.XA4-28976/07 DATED 5/1/2008 PASSED BY THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** ## **sts** ## **A.M.SHAFFIQUE, J.** **----------------------------------------------W.P.(C) No. 4172 of 2008 ----------------------------------------------Dated this the 13[th] day of July, 2012** **J U D G M E N T** Petitioner challenges Exts.P2 and P6 orders passed in respect of confiscation of vehicle KL 7 BC – 4123 Tata 407 Mini Lorry. It is his contention that he is a licencee of various toddy shops in the Paravur range and he had a valid permit for transporting toddy in another vehicle KL- 7/ AB 3636. 2. It seems that on 30.8.2006 his vehicle carrying KL-7/BC 4123 carrying toddy was intercepted by the officers of the 1[st] respondent Department. Mahazar was prepared as Ext.P1. Thereafter, on the contention that the petitioner had violated S.56(b) of the Abkari Act for having transported toddy without a valid permit, confiscation proceedings were taken against the petitioner. Ext.P2 is the order passed by the Asst. Excise Commissioner. 3. The petitioner has contended that the vehicle in which he was having a permit i.e. KL -7 AB - 3636 had a break-down and on account of the same, he had to use another vehicle for **W.P.(C) No. 4172 of 2008** 2 transporting the toddy to different toddy shops in which he is a licensee. The original authority, having taking into consideration the fact that toddy was transported without a valid permit and directed the vehicle to be confiscated under S.67(b)(2) of the Abkari Act. The petitioner filed an appeal before the Addl.Excise Commissioner, Thiruvananthapuram, who by Ext.P3 order set aside the confiscation proceedings subject to suo motu revision being taken by the 3[rd] respondent-Commissioner. 4. The Commissioner took suo motu revision and by Ext.P6 order, set aside the order passed in the appeal and confirmed Ext.P2 order of the original authority. 5. The main contention urged by the learned counsel for the petitioner is that the offence under S.56(b) for carrying the toddy in a vehicle not having a valid permit is only an minor offence as far as the provisions of the Abkari Act is concerned and the maximum penalty provided is six months imprisonment or fine to the extent of Rs.2,000/-. The petitioner was having a valid permit for transporting the toddy in respect of his another vehicle and only on account of the fact that the said vehicle had a break down, the petitioner was forced to use the particular **W.P.(C) No. 4172 of 2008** 3 vehicle which is under confiscation proceedings. It is his case that the offence being of a very minor nature, the authorities ought to have exercised the discretion not to confiscate the vehicle as there is no deliberate action on the part of the petitioner in trying to avoid the permit conditions. It is further submitted that though the petitioner had raised a specific contention that his vehicle which had a valid permit was in a workshop, no attempt has been made by the authorities to verify the said fact and having known that the petitioner had a valid permit for the said vehicle, the authorities ought to have found that there was no necessity to confiscate the vehicle of the petitioner which will cause huge loss to him. The only reason under which the confiscation proceedings had been completed is on the ground that the vehicle was involved in an abkari offence. Learned counsel also referred to the judgment of this Court in **Assootty** v. **State of Kerala** (1988 (2) KLT 16) to bring home the proposition that there is a discretion vested in the authorities to consider whether the confiscation is necessary in all abkari offences. **W.P.(C) No. 4172 of 2008** 4 6. Heard learned counsel for the petitioner and learned Government Pleader. 7. Having gone through Exts.P1 mahazar and and P2 order, it is clear that the intercepting party was aware that the petitioner's other vehicle was having a valid permit and the petitioner was a licensee in respect of toddy shops in the range and that he was also a registered owner of the vehicle which was used for transporting toddy to the said shops. However, it seems that no attempt was seen made to verify whether the vehicle which was having a valid permit was in a workshop as contended by the petitioner or its representatives. Still further, Ext.P2 order was passed by the original authority proceeding on the basis that since the vehicle was involved in an abkari offence, it is liable to be confiscated. As laid down by this Court in **Assootty's** case (supra), it is for the authorities to act under S.67 of the Abkari Act to consider whether a particular vehicle or property is liable to be confiscated which depends upon the facts and circumstances of the case. Admittedly this is a case in which the offence involved is only under S.56(b) of the Abkari Act and appears to be a minor offence as far as the provisions of the **W.P.(C) No. 4172 of 2008** 5 Act are concerned. The appellate authority, however, relying upon the judgment in **Assootty's** case had taken a view that the vehicle can be released taking into consideration the fact that the petitioner was already holding a valid licence in respect of another vehicle. But the Revisional Authority by Ext.P6 concurred with the view expressed in Ext.P2 though without stating any other reason but purely on the ground that the vehicle was admittedly involved in an abkari offence. 8. The question to be considered is whether Exts.P2 and P6 requires to be reconsidered. 9. Going by the judgment in Assotty's case, I do not think that the authorities, who had passed Exts.P2 and P6 orders has considered whether the vehicle was liable to be confiscated. The authorities ordered confiscation for the reason that the vehicle was involved in an abkari offence. The offence committed is only under S.56(b) and it is not their case that the toddy carried was in any way unauthorised. The chemical analysis of the toddy proved that it was toddy that was received from legal sources and it was being transported to the licensees other shops. It is also an admitted fact that the petitioner was **W.P.(C) No. 4172 of 2008** 6 having another permit for transporting toddy. No attempt had been made by the authorities to find out whether the contention of the petitioner that the other vehicle could not be used on account of a breakdown was genuine or not. In fact, it is for the authorities to consider whether despite being involved in an abkari offence the vehicle requires to be confiscated. This apparently depends upon the nature and gravity of the offence. Taking into consideration the over all circumstances in the matter and the nature of the offence involved in the alleged “abkari offence”, I feel that this is not a fit case in which a vehicle having a value of Rs.2,25,000/- is liable to be confiscated. Under these circumstances, the writ petition is allowed and Exts.P2 and P6 are set aside and there shall be a direction to the respondents to give back the security taken for release of the vehicle. ## **A.M.SHAFFIQUE, JUDGE.** ## rka