Renny P. Damiyan v. Sub Inspector of Police, Nedumbassery Police Station, Ernakulam District, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936** ## **WP(C).No. 15185 of 2010 (W)** ## **----------------------------** ## **PETITIONER(S): --------------** **RENNY P.DAMIYAN, S/O.PETER DAMIYAN, KAIMATHURUTHIL HOUSE, PALIYAMTHURUTHU, PUTHENVELIKKARA NORTH PARAVUR, ERNAKULAM DISTRICT.** **BY ADVS.SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENT(S):** ## **---------------** ## **1. THE SUB INSPECTOR OF POLICE, NEDUMBASSERY POLICE STATION, ERNAKULAM DISTRICT.** ## **2. THE DEPUTY EXCISE COMMISSIONER, KACHERIPADY, ERNAKULAM.** **3. THE ADDL.EXCISE COMMISSIONER,** - **EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM.** **4. THE COMMISSIONER OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM.** **R1-4 BY ADV. GOVERNMENT PLEADER SRI.A.J.JOSE AEDAIODI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 15185 of 2010 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: PHOTOCOPY OF THE RENT AGREEMENT DATED 1.5.2007** **EXT.P2: PHOTOCOPY OF THE RENT AGREEMENT DATED 1.4.2008** **EXT.P3: PHOTOCOPY OF THE ORDER DATED 8.6.2009 IN B.A.NO.2486/2009 PASSED BY THIS HON'BLE COURT.** **EXT.P4: PHOTOCOPY OF THE SHOW CAUSE NOTICE SENT TO THE PETITIONER BY THE 2ND RESPONDENT DATED 3.4.2009** **EXT.P5: PHOTOCOPY OF THE REPLY TO EXT.P4 SHOW CAUSE NOTICE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 7.5.2009** **EXT.P6: PHOTOCOPY OF THE ORDER NO.E7-2134/2009 DATED 29.9.2009 PASSED BY THE 2ND RESPONDENT.** **EXT.P7:PHOTOCOPY OF THE APPEAL MEMORANDUM DATED 12.11.2009 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXT.P8:PHOTOCOPY OF THE ORDER NO.34(B)APL/2005/AC(X) DATED 20.2.2006 PASSED BY THE ADDL.EXCISE COMMISSIONER, THIRUVANANTHAPURAM, UNDER SECTION 67-E OF THE ABKARI ACT.** **EXT.P9: PHOTOCOPY OF THE ORDER NO.64/APL/2009/AC(X) DATED 24.3.2010 PASSED BY THE 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C)No.15185 of 2010 **.............................................................** Dated this the 12[th] day of August, 2014 ## **J U D G M E N T** The petitioner is the registered owner of a Tata 407 vehicle bearing Reg.No.KL-7/AM-7899. The said vehicle was seized in connection with Crime No.570/2009, of the Nedumbassery Police Station, registered for offences under Sections 8(1) and (2) and 55 (a) and (i) of the Abkari Act. The case was registered on the allegation that on 17.03.2009 at about 11.30 a.m., the 1[st] respondent and party had conducted a search in the toddy shop which was licensed in the name of the 1[st] accused and seized 4000 litres of diluted spirit and 6650 litres of toddy mixed with spirit from the toddy shop building. The petitioner's vehicle, which was leased to the 1[st] accused, was seized for the sole reason that it was found parked in the toddy shop premises. The criminal proceedings that were initiated subsequently resulted in deletion of the registered owners of the vehicles from the list of persons charge sheeted. Proceedings were, however, initiated under the Abkari Act for confiscation of the vehicles that were seized and this included the vehicle of the petitioner as well. 2. Ext.P4 show cause notice dated 03.04.2009 was issued to the petitioner proposing confiscation of the vehicle seized by the 2 W.P.(C)No.15185 of 2010 respondents. In response to Ext.P4 notice the petitioner submitted Ext.P5 reply pointing out that the ingredients of Section 65, which provided for the circumstances under which a vehicle could be confiscated, was not attracted in the instant case and, therefore, the proceedings for confiscation of the vehicle were wholly illegal. The contentions of the petitioner did not find favour with the 2[nd] respondent who passed Ext.P6 order dated 29.09.09 directing confiscation of the vehicle by invoking Section 67B (2) of the Abkari Act. Aggrieved by Ext.P6 order, the petitioner preferred an appeal before the 3[rd] respondent who vide Ext.P9 order confirmed Ext.P6 order. It is aggrieved by Ext.P9 order that the petitioner preferred this writ petition impugning the said order. 3. A counter affidavit has been filed on behalf of respondents 1 to 3. In the said counter affidavit, the stand taken by the respondents is that the vehicle in question was found in the premises of the toddy shop, the licensee of which had been proceeded against under the provisions of the Abkari Act. The contention therefore is that since the vehicle in question was found in the premises of the toddy shop and close to the consignment of contraband goods, the vehicle could be said to have been a conveyance used in carrying the said contraband goods and therefore liable for confiscation in terms of Section 65 read with 3 W.P.(C)No.15185 of 2010 section 67 B of the Abkari Act. 4. I have heard Sri.M.G.Karthikeyan, learned counsel appearing on behalf of the petitioner and Sri.A.J.Jose Aedaiodi, the learned Government Pleader appearing on behalf of the respondents. 5. It will be apparent from a reading of Ext.P6 and P9 orders that the offence alleged to have been committed in this case, and for which the vehicle was found liable for confiscation, is one that is described under Section 65 of the Abkari Act read with Section 67 B of the said Act. Section 65 reads as under: “ **65. What things liable to confiscation:** - In any case in which an offence has been committed under this Act, the liquor, drug, materials, still, utensil, implement or apparatus in respect [or by means] of which an offence has been committed shall be liable to confiscation. Any liquor or intoxicating drug lawfully imported, exported, transported, manufactured had in possession or sold or toddy lawfully drawn or tapped along with, or in addition to any liquor, intoxicating drug or toddy, liable to confiscation under this section, and the receptacles, packages and coverings in which any such liquor, intoxicating drug, materials still, utensil, implement or apparatus as aforesaid is or are found, and the other contents, if any, of the receptacles or packages in which the same is or are found, and the animals carts, vessels or other conveyances 4 W.P.(C)No.15185 of 2010 used in carrying the same, shall likewise be liable to confiscation. Similarly Section 67 B reads as under: ## **67B. Confiscation by Abkari officers** **in certain cases.** -(1) Notwithstanding anything contained in this 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.) (2) Where an authorised officer seizes and detains any property specified in subsection (1) or where any such property is produced before an authorised officer under that 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 authorised officer may also order confiscation of all contents thereof. (3) When making an order of confiscation under sub-section (2), the authorised officer may also order that such of the properties to which the order of 5 W.P.(C)No.15185 of 2010 confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed.” 6. It will be apparent from a reading of both the Sections that when the article that is proposed to be confiscated is a conveyance then the only provision that is attracted in both, Section 65 and Section 67B is that which authorises the confiscation of a vessel or other conveyance used in carrying any liquor, intoxicating drug or toddy that is liable for confiscation under the Act. What has to be seen in the instant case, therefore, is whether on the facts of the case, the vehicle in question could be seen as a conveyance that was used in carrying the illegal consignment of diluted spirit and toddy mixed with spirit. In this connection it is relevant to note that in Ext.P9 order of the 3[rd] respondent, the submission of the Deputy Superintendent of Police, Narcotic Cell, Ernakulam, that no liquor was seized from the above vehicle at the time of detection of the case, is recorded. There is no averment, either in Ext.P6 or in Ext.P9 orders, that would suggest that the offending goods were actually seized from the vehicle in question. In such a situation, I do not think the confiscation, in terms of Section 65 read with section 67 B of the Act, would be justified in the instant case since in my opinion the said provisions would apply in respect of only those vehicles which were found to be used in carrying the 6 W.P.(C)No.15185 of 2010 offending goods at the time of detection of the offence by the authorities concerned. In taking this view, I am fortified by the decision of this Court in **Paulson v. Asst. Excise Commissioner** (2006 (4) KLT 965). In that case, in almost similar circumstances it was held that Section 65 of the Abkari Act which details the things that are liable to confiscation contains two parts. The 1[st] part relates to the liquor, drug, material, still, utensil, implement, or apparatus or any receptacle, in respect or by means of which, an offence has been committed. The 2[nd] part relates to animals, cart, vessel or other conveyance used in carrying the liquor, intoxicating drug, material etc. The legislature used different words in respect of liquor, drug, materials, still, utensil, implement or apparatus on the one hand and conveyances on the other. In respect of the latter, only those conveyances that were used in carrying the same were made liable for confiscation. No doubt, the learned Government Pleader would contend that even a vehicle, that is normally used in connection with the business conducted by the licensee, could be viewed as a vehicle used in carrying the offending articles notwithstanding that the offending articles were only found near the vehicle and were not actually in the vehicle at the time of seizure. While considering the submission of the learned Government Pleader, it has to be borne in mind that the provision that is under consideration in the instant case is a penal provision 7 W.P.(C)No.15185 of 2010 which seeks to confiscate a conveyance that is suspected to be used in connection with an offence under the statute. The said provision, which is penal in nature, must necessarily be construed strictly and it is only when the ingredients of the offence are clearly attracted that the confiscation can be held legal and in accordance with the provisions of the statute. Insofar as Section 65 deals specifically with vessels or other apparatus used in carrying offending articles, I am of the view that a strict construction of the provision would take within its fold only such vessels or other conveyances that were actually found to be carrying the offending goods at the time of detection of the offence by the authorities concerned. In otherwords, the mere fact that the vehicle in question was at or near the place were the offending goods were stored cannot be a reason to confiscate the vehicle on the ground that it was used in carrying the offending goods. The factum of carriage of the goods must exist at the time of detection. In the instant case there is no such finding by any of the authorities. Under these circumstances, Exts.P6 and P9 orders are quashed and the writ petition is allowed by declaring that the petitioner's vehicle having Reg.No.KL-7/AM7899, seized in connection with Crime No.570/2009 of the Nedumbassery Police Station, is not liable to confiscation under Sections 67 B and C of the Abkari Act. The respondents shall take prompt steps to release the vehicle to the petitioner and at any 8 W.P.(C)No.15185 of 2010 rate, within a period of one month from the date of receipt of a copy of this judgment. **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/