Rameez Moidu v. The Excise Commissioner Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943** **WA NO. 1465 OF 2021** **AGAINST THE ORDER/JUDGMENT DATED 21.10.2021 IN WP(C) 22369/2021** **OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANT/PETITIONER:** **RAMEEZ MOIDU, AGED 58 YEARS, S/O. M.K.SIRAJ, ROYAL ROSE, KANDAMKULANGARA, ANDI ROAD, KOZHIKODE, PIN-673303 (REPRESENTED HEREIN BY HIS POWER OF ATTORNEY HOLDER MR. SHABEER, S/O.KUTTYALI, RESIDING AT SHAAB, PUTHUKUDYPARAMBU, THIKKODI, KOZHIKODE, PIN-673529. BY ADVS. M.AJAY V.P.PRASAD** ## **RESPONDENTS/RESPONDENTS:** - **1 THE EXCISE COMMISSIONER KERALA, EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O., NANDAVANAM, THIRUVANANTHAPURAM, PIN-695033.** - **2 THE DEPUTY EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, MEENANGADI P.O., WAYANAD, PIN-673591.** - **3 THE STATION HOUSE OFFICER, SULTHAN BATHERY POLICE STATION,POLICE STATION ROAD, SULTHAN BATHERY, WAYANAD, PIN-673592.** ## **SRI.T.K.VIPINDAS SR GP** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Writ Appeal No.1465 of 2021 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** **Writ Appeal No.1465 of 2021** ## **-----------------------------------------------** ## **Dated this the 9[th] day of November, 2021** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 21.10.2021 in W.P.(C) No.22369 of 2021. Appellant is the petitioner in the writ petition. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition. 2. The petitioner is the Director of a company engaged in the business of common carrier. A vehicle belonging to the company of which the petitioner is the Director was seized and detained alleging commission of offences punishable under Sections 55(a) and 55(i) of the Kerala Abkari Act (the Act). The allegation is that while the vehicle was within the jurisdiction of the Sulthan 3 Writ Appeal No.1465 of 2021 Bathery Police Station, it was found carrying a cardboard box containing eight one litre bottles of Indian Made Foreign Liquor, marked for sale in the State of Karnataka. The officer who seized and detained the vehicle later produced the same before the second respondent, the competent authority under Section 67B of the Act for initiating proceedings for confiscation of the vehicle for having used the same for committing the offences alleged. As the proceedings for confiscation is likely to take time for its culmination, the petitioner applied to the second respondent for release of the vehicle pending disposal of the confiscation proceedings. The application submitted by the petitioner was allowed by the second respondent as per Ext.P10 order, on condition that the petitioner shall deposit a sum of Rs.14 lakhs towards the value of the vehicle, as was assessed by the competent authority, in the Treasury Savings Account in favour of the first respondent, the Commissioner of Excise, as provided for under Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 (the Rules). The writ petition was filed seeking a modification of Ext.P10 order so as to enable the petitioner to claim release of the vehicle on furnishing 4 Writ Appeal No.1465 of 2021 bank guarantee, instead of cash deposit in the Treasury Savings Account. The petitioner placed reliance on the decision of this Court in **Karthikeyan v. Deputy Commissioner of Excise, Ernakulam,** 2011 (1) KLT 334, in support of the relief claimed in the writ petition. 3. Ext.P10 order has been issued by the second respondent in accordance with Rule 4(2)(a) of the Rules which provides that a vehicle liable to be confiscated may be released temporarily against deposit of an amount equal to the market value of the vehicle in the Treasury Savings Account of the Commissioner of Excise. In **Karthikeyan** , in an almost identical case, a Division Bench of this Court has held that in exceptional circumstances, this Court would be justified under Article 226 of the Constitution in excusing a person from complying with the statutory provisions on equivalent appropriate and stringent conditions, without impairing the effect of the statutory provisions and without violating any of the express interdictions created by statute. The learned Single Judge took the view that the case on hand is not an exceptional case where the proposition laid down by this Court in **Karthikeyan** could be applied and consequently, dismissed the writ petition. The Writ Appeal No.1465 of 2021 5 petitioner is aggrieved by the said decision of the learned Single Judge. 4. It is seen that it was highlighted before the learned Single Judge that the company which owns the vehicle was engaged in the business of common carrier for number of years and the case on hand is the first case of this nature, to bring home the point that the case is an exceptional one so as to claim the benefit of the decision of the Division Bench in **Karthikeyan** . The learned Judge found that the said circumstance by itself is not sufficient to bring the case as an exceptional one to read down the statutory provision as held in **Karthikeyan** . 5. The learned counsel for the petitioner argued that insofar as the petitioner is prepared to furnish bank guarantee for the amount mentioned in the impugned order if the vehicle is released on that condition, it would neither impair the effect of the statutory provision in any manner, nor violate the interdiction in terms of the statutory provision. 6. Per contra, the learned Government Pleader submitted that insofar as the Rule 4(2)(a) of the Rules categorically 6 Writ Appeal No.1465 of 2021 provides for deposit of the amount mentioned therein in the Treasury Savings Account in favour of the Commissioner of Excise, this Court will not be justified in modifying Ext.P10 order as prayed for by the petitioner. The learned Government Pleader also asserted that the case on hand cannot be said to be an exceptional one to extend the benefit of the decision of this Court in **Karthikeyan** . 7. We have examined the arguments advanced by the learned counsel for the parties on either side. 8. As noted, this Court has held in **Karthikeyan** that in exceptional circumstances, this Court would be justified under Article 226 of the Constitution in excusing a person from complying with the statutory provisions on equivalent appropriate and stringent conditions, without impairing the effect of the statutory provisions and without violating any of the express interdictions created by the statute. The relevant paragraphs of the judgment in the said case read 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 Writ Appeal No.1465 of 2021 7 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.In so far 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 field. 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 loathe transgress the statutory limitations, unless of course, equivalent appropriate conditions are imposed. This is a very cautious exercise resorted to any exceptionally exceptional circumstances and cannot be asked for as a matter of 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 8 Writ Appeal No.1465 of 2021 course in matters relating to the release of vehicles involved in alleged abkari offences.” 9. Going by the provision contained in Section 67C(2) of the Act, a vehicle is not liable to be confiscated under Section 67B of the Act, if the use of the same for commission of the offence punishable under the Act is without the knowledge and connivance of its owner, and if the owner and the person in charge of the vehicle had taken all reasonable and necessary precautions against such use. Ext.P7 report would indicate that the use of the vehicle of the company for commission of the alleged offences is without the knowledge and connivance of the company. The relevant portion of Ext.P7 report submitted by the third respondent reads thus: "ഈ ക�സ�ല� പത� �മന�യ�ൽ സ�രമ�യ� ക���� കന�കന ഡ�വറല� അഭ�വത�ൽ മ�ത� ക���� കന�കന ത�ത����� ഡ�വറ� സ�ഭവസമയ� വ�ഹന� ഓ��ച �� ഡ�വറ�യ പത� അയ�ളല� സ&ന� ത�ലര)�ർത� �മന�യല�കയ� വ�ഹന ഉ�മയല�കയ� അറ�കവ� സമതകമ� ഇല�ലത �ർണ���യ�ൽ മ�ത� വ�ലന�നമത3യള ഒര ��ററ�ല8 8 പ�സ��; കപ��ള���യ� ഇന)ൻ ന�ർമ�ത വ�ക@ശമ@)� യ�ലത�ര ” കരഖ�ള� ഇല�ലത വ�ലനയ�യ� ��ത�ലD�ണ വനത�യ� വ)കമ�യ�ടളത�ണ;. Of course, that by itself is not sufficient to contend that the vehicle is not liable to be confiscated. In addition, it must also be established that the owner of the vehicle and the person in charge of the same 9 Writ Appeal No.1465 of 2021 had taken all necessary precautions to prevent the use of the vehicle for commission of offences punishable under the Act. The question aforesaid is one to be examined by the competent authority in the proceedings for confiscation. Be that as it may. Rule 4(2)(a) of the Rules reads thus: “4(2) (a) The cart, vessel or other conveyance liable to be confiscated under the Act may be released temporarily by the authorized 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 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”. As explicit from the extracted Rule, the same provides for temporary release of a vehicle in respect of which proceedings for confiscation under Section 67B of the Act is in contemplation, only on deposit of the amount mentioned in the Rule in the Treasury Savings Account in favour of the Commissioner of Excise. A reading of Rule 4(2)(a) would show that the object of the said provision is to ensure that the properties in respect of which proceedings for confiscation are in 10 Writ Appeal No.1465 of 2021 contemplation are not damaged on account of non-user, without compromising on the object of the statutory provision that such properties are liable to be confiscated. As noted, the petitioner is offering bank guarantee for the amount covered by the Rule for release of the vehicle. The bank guarantee is as good as money. True, if bank guarantee is accepted in the place of cash deposit, the amount covered by the bank guarantee cannot be used by the State during the pendency of the confiscation proceedings. We do not think that the same is the object of the Rule which insists cash deposit in a Treasury Savings Account, for the amount is one to be returned to the party, if it is found that the property is not liable to be confiscated, at a later stage. In other words, it cannot be said that a direction for release of the vehicle on furnishing bank guarantee for the amount covered by the Rule would impair the effect of the Rule in any manner whatsoever or that such a direction would violate the express interdiction created by the Rule. In the aforesaid circumstances, having regard to the fact that the vehicle is not one owned by an individual, but a company engaged in the business of common carrier, and having regard to the fact that the 11 Writ Appeal No.1465 of 2021 use of the same for commission of the offences is without the knowledge and connivance of its owner, we are of the view that the case on hand is one in which the ratio in **Karthikeyan** could be applied. In the said view of the matter, the impugned judgment is set aside and the second respondent is directed to release the vehicle referred to in the writ petition to the petitioner on furnishing bank guarantee for the amount specified in Ext.P10 order. This shall be done as expeditiously as possible. **==> picture [201 x 12] intentionally omitted <==** ## **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** YKB