High Court of KeralaSingle Judge2019-03-18Writ petition dismissed.

Prakashan.K. v. Excise Range Officer, Taliparamba, Kannur District; Deputy Excise Commissioner; Excise Commissioner

Case / Petition Number:WP(C).No. 8044 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2019-03-18
Court Decision / Holding: In the result, this writ petition fails and the same is accordingly dismissed.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

Prakashan.K., aged 47 years, S/O Kunhikorang, Kooliyadath House, Kovvappuram, Ramantali P.O., Ramantali Amsof, Kannur District-670307

Respondents

Excise Range Officer, Taliparamba, Kannur District-670141
Deputy Excise Commissioner, Office of the Deputy Excise Commissioner, Civil Station, Kannur-670002
The Excise Commissioner, Excise Commissionerate, Nandavanam, VIAKS BHAVAN P.O., Thiruvananthapuram-695033

Legal Representation & Advocates

Counsels for Petitioners

• Sri.V.T.Madhanavunni
• Sri.V.A.Sathesh

Counsels for Respondents

• Sri K.P.Harish, Senior Government Pleader

Case Synopsis & Summary

Prakashan.K., the registered owner of autorickshaw KL-59/M-4627, filed a writ petition under Article 226 seeking mandamus to compel the Excise Commissioner to expeditiously consider Ext.P3, a revision petition dated 05.03.2019 under Section 67F of the Abkari Act, and to restrain the Deputy Excise Commissioner from repossessing the vehicle pending disposal. The vehicle had been seized on 15.03.2017 for alleged illicit transport of Indian Made Foreign Liquor; an occurrence report (Ext.P1) was filed and confiscation proceedings under Section 67B were initiated, culminating in Ext.P2 confiscation order dated 27.02.2018. Though an appeal under Section 67E lay, it had to be filed within thirty days, which did not occur. Instead, Ext.P3 was filed after the time limit. The petitioner contends that the Commissioner can exercise suo motu revision under Section 67F before expiry of the 30-day period and that the records should be called for, a view supported by Sindhu Babu v. Commissioner of Excise. The court, however, interpreted the law consistently with that decision and held that the Commissioner cannot entertain Ext.P3 to revise Ext.P2, as the time limit had expired. It cited Santosh Kumar to emphasize that Article 226 cannot circumvent the statutory framework. The petition was dismissed, with the court noting that the remedy under the Abkari Act could not be bypassed by writ petition.

Provisions of Law Cited

Article 226 of the Constitution of IndiaSection 13, read with Sections 63 and 67B, Abkari ActSection 67B, Abkari ActSection 67E, Abkari ActSection 67F, Abkari ActSection 67E(1), 67E(2), 67E(3), Abkari Act

Legal Doctrines & Maxims

Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the Statute.
What may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that Ext.P3 revision petition under Section 67F of the Abkari Act be treated as a valid, timely challenge and be expeditiously considered by the Excise Commissioner. He seeks a mandamus to direct expeditious consideration and an interim safeguard from repossession during the pendency. Reliance is placed on the principle in Sindhu Babu that suo motu revision under Section 67F must be exercised within the statutory timeframe, after calling for records, and within thirty days from the impugned order. The petitioner argues that Article 226 cannot be used to bypass the statutory remedies available under the Abkari Act and that the High Court may intervene to ensure compliance with statutory procedure rather than circumvent it.

Contentions of Respondents

The respondents contend that Ext.P2, being a confiscation order under Section 67B, is subject to an appeal under Section 67E, limited to thirty days, which the petitioner did not exercise. Section 67F allows suo motu revision by the Commissioner only within the statutory thirty-day period from the date of the order under 67B or 67E; Ext.P3, filed well after expiry, cannot be entertained. The respondents argue that the statutory scheme—including 67E and 67F—must be strictly adhered to, and Article 226 cannot override the statute by inviting revision post-time-limit. They rely on the Sindhu Babu decision to reiterate the conditions for exercising revisional powers and emphasize that the petition cannot be used to circumvent the statutory process. The respondents cite Santosh Kumar to support the view that Article 226 cannot substitute for the statutory remedy.”},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sindhu Babu v. Commissioner of Excise, Thiruvananthapuram and others	2016 (1) KHC 274	Positive	The court relies on this decision to hold that the Commissioner’s suo motu revision under Section 67F must be exercised within 30 days and after calling for records; Ext.P3 cannot be used to bypass the time limit.
Santosh Kumar v. Central Warehousing Corporation	[(1986) 2 SCC 343]	Positive	Cited to emphasize that Article 226 cannot circumvent statutory processes and remedies provided by law.

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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 ANIL K.NARENDRAN** **MONDAY,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WP(C).No. 8044 of 2019** ## **PETITIONER:** **PRAKASHAN.K., AGED 47 YEARS,S/O.KUNHIKORAN, KOOLIYADATH HOUSE, KOVVAPRAM, RAMANTHALI P.O., RAMANTHALI AMSOM, KANNUR DISTRICT-670 307.** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH** ## **RESPONDENTS:** |**1**|**EXCISE RANGE OFFICER,**| |---|---| ||**TALIPARAMBA,**| ||**KANNUR DISTRICT-670 141.**| |**2**|**DEPUTY EXCISE COMMISSIONER,**| ||**OFFICE OF THE DEPUTY EXCISE COMMISSIONER,**| ||**CIVIL STATION, KANNUR 670 002.**| |**3**|**THE EXCISE COMMISSIONER,**| ||**EXCISE COMMISSIONERATE, NANDAVANAM,**| ||**VIAKS BHAVAN P.O.,**| ||**THIRUVANANTHAPURAM 695 033.**| ## **R1-R3 SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8044 of 2019** -2- ## **JUDGMENT** The petitioner, who is stated to be the registered owner of an autorickshaw bearing registration No.KL-59/M-4627, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent Excise Commissioner to consider Ext.P3 revision petition dated 05.03.2019, as expeditiously as possible. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Deputy Excise Commissioner not to re-possess his vehicle, till the disposal of Ext.P3 revision petition. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 3. The pleadings and materials on record would show that, on 15.03.2017, the petitioner's autorickshaw bearing registration No. KL-59/M-4627 was seized by the 1[st] respondent Excise Range Officer, alleging illegal transportation of Indian Made Foreign Liquor, and the **WP(C).No. 8044 of 2019** -3- petitioner was also arrested. Ext.P1 occurrence report in Crime No.21 of 2017 of Excise Range Office, Taliparamba was filed under Section 13, read with Sections 63 and 67B of the Abkari Act. The 2[nd] respondent initiated confiscation proceedings under Section 67B of the Abkari Act, by issuing a show-cause notice dated 16.11.2017. The petitioner filed an application before the 2[nd] respondent for interim custody of the vehicle. On 27.02.2018, the 2[nd] respondent issued Ext.P2 order, whereby the petitioner's vehicle is confiscated, invoking the powers under sub-section (2) of Section 67B of the Act. In Ext.P2 order, it was made clear that an appeal will lie against that order, before the Additional Excise Commissioner (Enforcement), Thiruvananthapuram, under Section 67E of the Act. 4. Much after the expiry of the time limit prescribed for filing an appeal under Section 67E of the Act, against Ext.P2 order dated 27.02.2018, the petitioner moved Ext.P3 revision petition dated 05.03.2019 before the 3[rd] respondent Excise Commissioner, invoking Section 67F of the Abkari Act **WP(C).No. 8044 of 2019** -4- and thereafter moved this Court in this writ petition seeking a writ of mandamus commanding the 3[rd] respondent to consider Ext.P3 revision petition and seeking other reliefs. 5. Section 67B of the Abkari Act deals with the power of Abkari officers for confiscation of vehicle. It was in exercise of the powers under Section 67B of the Act that the 2[nd] respondent issued Ext.P2 order dated 27.02.2018. Section 67E of the Act deals with appeal. As per sub-section (1) of Section 67E, any person aggrieved by any order passed under Section 67B may, within thirty days from the date of communication to him of such order, appeal to an officer not below the rank of Deputy Commissioner of Excise authorised by the Government in this behalf by notification in the Gazette as the Appellate Authority. Sub-section (2) of Section 67E provides that on receipt of an appeal under subsection (1) the Appellate Authority shall, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as may be necessary, pass such order as he thinks fit, confirming, modifying or **WP(C).No. 8044 of 2019** -5- annulling the order appealed against. Sub-section (3) of Section 67E provides that an order of the Appellate Authority under sub-section (2) shall, subject to the provisions of Section 67F, be final and shall not be called in question in any court. 6. The petitioner has not chosen to avail the statutory remedy under Section 67E of the Abkari Act against Ext.P2 order and much after the expiry of the time limit for filing appeal, he has preferred Ext.P3 revision petition before the 3[rd] respondent Commissioner of Excise, invoking the provisions under Section 67F of the Act. A reading of sub-section (1) of Section 67F of the Act would show that the power of suo motu revision by the Commissioner of Excise has to be exercised before the expiry of the stipulated time limit of thirty days from the date of an order passed under Section 67B or Section 67E of the Act. 7. In **Sindhu Babu v. Commissioner of Excise, Thiruvananthapuram and others [2016 (1) KHC 274]** , **WP(C).No. 8044 of 2019** -6- this Court held that, before exercising revisional powers, suo motu or otherwise, by the Commissioner of Excise under Section 67F of the Abkari Act, two principal conditions has to be fulfilled, i.e., it should be exercised before the expiry of thirty days from the date of the impugned order and he should call for the records before the expiry of the said period of thirty days. 8. In view of the law laid down by this Court in the decision referred to _supra_ , the 3[rd] respondent Excise Commissioner cannot exercise his revisional power under Section 67F of the Act, against Ext.P2 order dated 27.02.2018, based on Ext.P3 revision petition filed by the petitioner on 05.03.2019. 9. In **Santosh Kumar v. Central Warehousing Corporation [(1986) 2 SCC 343]** , the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent the **WP(C).No. 8044 of 2019** -7- process of the law and the provisions of the Statute. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 8044 of 2019** -8- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OCCURRENCE REPORT IN CRIME NO. 21/2017 OF EXCISE RANGE OFFICE, TALIPARAMBA. EXHIBIT P2 TRUE COPY OF THE ORDER OF RESPONDENT NO.2 DATED 27.2.2018. EXHIBIT P3 TRUE COPY OF THE REVISION PETITION DATED 5.3.2019. EXHIBIT P4 TRUE COPY OF THE RECEIPT ISSUED FROM PROFESSIONAL COURIERS, TALIPARAMBA. RESPONDENTS' EXHIBITS: NIL**