Rameez Moidu v. The Excise Commissioner, Kerala, and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943** ## **WP(C) NO. 22369 OF 2021** ## **PETITIONER:** RAMEEZ MOIDU S/o M.K.SIRAJ, ROYAL ROSE, KANDAMKULANGARA, ANDI ROAD, KOZHIKODE PIN - 673303, [REP. HEREIN BY HIS POWER OF ATTORNEY HOLDER MR.SHABEER, S/O KUTTYALI, R/A SHAAB, PUTHUKUDYPARAMBU, THIKKODI, KOZHIKODE, PIN 673529.] BY ADVS. M.AJAY V.P.PRASAD ## **RESPONDENTS:** 1 THE EXCISE COMMISSIONER, KERALA, EXCISE COMMISSIONERATE, VIKAS BHAVAN PO., NANDAVANAM, THIRUVANANTHAPURAM, PIN - 695033. 2 THE DEPUTY EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, MEENANGADI PO, WAYANAD, PIN - 673591. 3 THE STATION HOUSE OFFICER, SULTHAN BATHERY POLICE STATION, POLICE STATION ROAD, SULTHAN BATHERY, WAYANAD, PIN - 673592. BY SRI.BIMAL K. NATH, SR. GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W. P. (C) No.22369 of 2021** **= = = = = = = = = = = = = = = = = = Dated this the 21[st ] day of October, 2021** ## **JUDGMENT** Petitioner is the Director of a private limited company engaged in the business of common carrier. Vehicle belonging to the Company bearing registration No.KA-01-AG-6021 was seized for offences under Section 55(a) and Section 55(i) of the Kerala Abkari Act. The allegation is that, while within the jurisdiction of the Sulthan Bathery Police Station, the vehicle was found carrying a cardboard box containing eight, one litre bottles of Indian Made Foreign Liquor which were marked for sale only in the State of Karnataka. 2. The petitioner sought for interim release of the vehicle under Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rule, 1996 pending confiscation proceedings under Section 67(B) of the Abkari Act. **W. P. (C) No.22369 of 2021** -: 2 :- 3. The application was allowed by the second respondent as per Ext.P10 order subject to the petitioner depositing `14 lakhs towards the value of the vehicle as was assessed by the Mechanical Engineer (Excise) in the Treasury Savings Account. The petitioner has approached this Court seeking a direction to have the vehicle released on furnishing of bank guarantee for the value of the vehicle instead of cash deposit. 4. Heard Sri.M.Ajay, learned counsel for the petitioner and Sri.Bimal K. Nath, the learned Senior Government Pleader for the respondents. 5. Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 reads thus:- _“(2)(a) The cart, vessel or other conveyance liable to be confiscated under the Act may be released temporarily by the authorised officer to its owner on depositing an amount equivalent to the market value of the cart, vessel or other conveyance, fixed by the Mechanical Engineer of the Excise Department or any Mechanical_ **W. P. (C) No.22369 of 2021** -: 3 :- _Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State in the Treasury Savings Account in favour of the Commissioner of Excise.”_ 6. As is evident therefrom, the vehicle that was seized could be given interim custody to its owner, on the owner depositing the market value of the vehicle as assessed by the Mechanical Engineer (Excise), in the State Treasury Savings Account in favour of the Commissioner of Excise. The Rule mandates for deposit of the value of the vehicle in the treasury savings account. Sri.Ajay, the learned counsel for the petitioner relies on the judgment of the Division Bench of this Court in _**Karthekeyan v. Deputy Commissioner of Excise, Ernakulam and Another [2011 (1) KHC 138 (DB)]**_ to contend that, though the authorities under the Abkari laws are bound by the statutory condition requiring deposit, this Court **W. P. (C) No.22369 of 2021** -: 4 :- in exercise of powers under article 226 of the Constitution is entitled to grant direction permitting release of the vehicle on furnishing of bank guarantee to secure the amount. The learned counsel relies on paragraphs 6 and 7 of the judgment which reads thus:- _“6. When the Confiscation Rules contain the clear statutory provisions as to the manner in which, and the conditions subject to which only, a vehicle could be provisionally released pending confiscation proceedings, it is not open to any statutory authority acting under the Abkari Laws to issue any order for release, except in conformity with that statutory condition. Statutory provisions, including subordinate legislation, bind the repository of power under that statute and hence, there is no way for any abkari officer to act except in terms of the direction therein._ _7. Insofar as the exercise of jurisdiction under Article 226 of the Constitution is concerned, it needs to be noted that in exceptional cases, the court may issue orders to render justice, without in any manner impairing the effect of the statutory law governing the filed. However, this would not be done in violation of any express interdiction created by statute law. Equally, even when such a power is being exercised, the writ court would loath transgress the statutory limitations, unless of course, equivalent appropriate conditions are imposed._ **W. P. (C) No.22369 of 2021** -: 5 :- _This is a very cautious exercise resorted to any exceptionally exceptional circumstances and cannot be asked for as a matter or right or course. Not only that, such a procedure would be adopted only for such strong reasons which are demonstrably overwhelming and requiring judicial indulgence exercising prerogative discretionary jurisdiction to meet the ends of justice, excusing a person, for the time being, from complying with the obligations under the statutory provision, that too, only on stringent conditions. Therefore, even if we find some element of power under Article 226 to grant any such discretionary order, it cannot be asked for, or granted, as a matter of course in matters relating to the release of vehicles involved in alleged abkari offences.”_ 7. The Division Bench has held that in an “exceptionally exceptional circumstance” this Court could, in exercise of the jurisdiction under Article 226 of the constitution, without impairing the effect of the statutory law and without violation of any express interdiction created by statute, impose equivalent appropriate and stringent conditions to excuse a person from complying with the statutory obligations. **W. P. (C) No.22369 of 2021** -: 6 :- 8. The learned counsel for the petitioner would contend that the petitioner had been in the business of common carrier for the last sixty years and that there had been not a single instance of violation of the provisions of the Abkari Act and Rules. The vehicle in question was a refrigerated truck used for transport of perishable food, medicines and such other items across the country. On the particular trip, since the regular driver was unavailable, another substitute driver was operating the vehicle. The vehicle was carrying a consignment of dairy whiteners. The alleged seizure was behind the driver's seat and was not within the refrigerated cargo. On these it is contended that this is a case which squarely falls within the expression “exceptionally exceptional circumstance” and hence this Court may exercise its jurisdiction under Article 226 and direct that the vehicle be released on furnishing a bank guarantee rather than insisting for cash deposit in **W. P. (C) No.22369 of 2021** -: 7 :- the savings bank. 9. I am of the opinion that, the mere fact that the petitioner was engaged in the business of common carrier for a number of years and that this is allegedly the first offence, does not by itself make it an exceptionally exceptional circumstance to grant a direction diluting the rigor imposed under the Rule. It cannot be assumed that the rule making authority did not conceive of such situations. I am not convinced that the extraordinary jurisdiction of this Court under Article 226 of the Constitution is liable to be invoked, as observed by the Division Bench in Karthekeyan's case referred to supra, to read down the statutory provision and direct release of the vehicle on furnishing of bank guarantee. The writ petition fails and is accordingly dismissed. The authorities shall take the confiscation proceedings to a logical conclusion as expeditiously as **W. P. (C) No.22369 of 2021** -: 8 :- possible and at any rate within a period of three months from the date of receipt of a copy of this judgment. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge **WP(C) NO. 22369 OF 2021** ## **APPENDIX** ## **' - PETITIONER S EXTS:** **EXT.P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED IN RESPECT OF THIS VEHICLE KA 01 AG 6021. EXT.P2 A TRUE COPY OF THE DISPATCH REPORT ISSUED BY THE KARNATAKA COOPERATIVE MILK PRODUCERS FEDERATION LTD., YELAHANKA, BENGALURU DATED 27.08.21. EXT.P3 A TRUE COPY OF THE E-WAY BILL NO.111370333529 DATED 27.08.21. EXT.P4 A TRUE COPY OF THE FIR IN CR. 690/21 DATED 28.08.21. EXT.P5 A TRUE COPY OF THE ORDER OF THE HON. SESSIONS COURT, WAYANAD IN CR.M.C. 512/21 DATED 10.09.21. EXT.P6 A TRUE COPY OF THE PETITION, CMP 2330/21 FILED BY THE PETITIONER THROUGH THE BRANCH MANAGER OF KRS, SULTHAN BATHERY BEFORE THE HON. JFCM-1, SULTHAN BATHERY DATED 01.09.21. EXT.P7 A TRUE COPY OF THE REPORT FILED BY THE THIRD RESPONDENT IN CMP 2330/21 DATED 2.9.21. EXT.P8 A TRUE COPY OF THE ORDER IN CMP 2330/21 OF THE JFCM1, SULTHAN BATHERY DATED 7.9.21. EXT.P9 A TRUE COPY OF THE PETITION FILED THROUGH THE POWER OF ATTORNEY HOLDER AND THE BRANCH MANAGER OF KRS IN SULTHAN BATHERY BEFORE THE SECOND RESPONDENT DATED 14.9.21. EXT.P10 A TRUE COPY OF THE NOTICE NO.53-4515/21 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER DATED 5.10.21. EXT.P11 A TRUE COPY OF THE COMMUNICATION NO.W5-4515/21 ISSUED BY THE SECOND RESPONDENT TO THE DISTRICT TREASURY OFFICER, WAYANAD DATED 6.10.21.** **-----**