Sajin Jose v. Deputy Excise Commissioner, Muttil, Wayanad and Additional Excise Commissioner, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937 WP(C).No. 7884 of 2012 (I) ----------------------------------- PETITIONER : - ---------------------- SAJIN JOSE, AGED 27 YEARS, S/O.JOSEPH MATHEW, NELLIKUNNEL HOUSE, POST PALLIKUNNU, ANCHUKUNNU AMSOM DESOM, MANANTHAVADY TALUK. BY ADV. SMT.CELINE JOSEPH RESPONDENTS : - -------------------------- 1. THE DEPUTY EXCISE COMMISSIONER, MUTTIL P.O., WAYANAD - 673 121. 2. THE ADDITIONAL EXCISE COMMISSIONER, THIRUVANANTHAPURAM - 695 001. R1, R2 BY GOVERNMENT PLEADER SRI. G. GOPAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7884 of 2012 (I) ----------------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS : EXHIBIT P1 : TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1[st] RESPONDENT. - EXHIBIT P2 : TRUE COPY OF THE ORDER DATED 26.6.2011 ISSUED BY THE 1[st] RESPONDENT. EXHIBIT P3 : TRUE COPY OF THE MEMORDANDUM OF APPEAL FILED BY PETITIONER BEFORE THE 2[nd] RESPONDENT. EXHIBIT P4 : TRUE COPY OF THE ORDER DATED 06.01.2012 ISSUED BY THE 2[nd] RESPONDENT. ## RESPONDENTS' EXHIBIT : NIL. // TRUE COPY // P.A. TO JUDGE DMR/- ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 7884 of 2012** ---------------------------------------- Dated this the 22[nd] day of January, 2016 ## JUDGMENT The petitioner, being the Owner/Driver of a Jeep, has assailed in this writ petition Exhibits P2 and P4 orders of confiscation passed by the first and second respondents respectively. The facts in brief are that on 20.03.2010, the Circle Inspector of Excise, Excise Enforcement and Anti Narcotics Special Squad, along with his men, seized the petitioner's Jeep and found on inspection that it was transporting 10 litres of Indian Made Foreign Liquor without any valid documents. 2. As can be seen from the record, the inspection referred to above has led to registration of Crime No.14/2010 for the alleged offences under Sections 55(a), 55(i), 33(2) read with Section 63 of Abkari Act. 3. In the course of time, when the seized vehicle was produced before the first respondent, the said authority, after hearing the petitioner, passed Exhibit P3 order confiscating the vehicle in terms of Section 67B of the Act. W.P.(c) No. 7884 of 2012 2 4. Though the petitioner filed Exhibit P3 appeal, the second respondent, through Exhibit P4 order, affirmed the findings of the first respondent in Exhibit P3 order. Aggrieved, the petitioner has approached this Court. 5. The learned counsel for the petitioner has submitted that on the eventful day, the petitioner was engaged by one Mr. Sabu to transport his household articles, which the petitioner did being the Owner-cum-Driver of the vehicle. She further contends that when Mr. Sabu loaded his household articles, the petitioner had no knowledge as regards what those household articles actually were. In other words, it is the singular contention of the learned counsel for the petitioner that the petitioner had no knowledge concerning the material being transported by Mr. Sabu in his vehicle. 6. The learned Government Pleader, on the other hand, has submitted that the petitioner is not only the owner of the vehicle, but also its Driver. According to him, the petitioner's version that he had been engaged by somebody and that he had not been aware of the contents being transported is entirely unbelievable. He has eventually submitted that the W.P.(c) No. 7884 of 2012 3 petitioner has failed to discharge the burden cast on him under Section 67C of the Act. 7. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents, apart from perusing the record. 8. Indeed, the facts are not in dispute. As can be seen from Exhibit P1 explanation submitted by the petitioner before the first respondent, he is said to have been engaged by one Mr. Sabu to transport his household articles and the said person may have kept hidden among the household articles the IMFL, which was otherwise duly purchased from an outlet maintained by the Beverages Corporation. 9. The records do not reveal that the petitioner has examined the said Mr. Sabu as a witness before the first respondent. There is an element of justification on the part of the respondents in holding concurrently that the petitioner has not discharged his burden in terms of Section 67C of the Act. 10. Indisputably, this Court in **Ravichandran v. Excise Inspector[1]** , on which the learned counsel for the petitioner 1 2015 (1) KLT 218 W.P.(c) No. 7884 of 2012 4 has placed reliance, has held that the power of confiscation can be exercised only if the authorized officer is satisfied that the vehicle has been used for commission of offence with the knowledge or connivance of the owner himself, or the person in charge of the vehicle or that the owner or the person in charge of the vehicle has not taken all reasonable and necessary precautions against such use. 11. It is further held that, even in the absence of any evidence from the owner, the authorised officer is duty bound to consider all the relevant aspects to satisfy that the vehicle has been used for commission of the offence with the knowledge or connivance of the owner himself. The liability is still fastened if the person in charge of the vehicle or the owner has not taken all reasonable and necessary precautions against such use. 12. Indeed, it has tellingly been observed that the confiscation of a vehicle being a very serious matter involving drastic civil consequences and social stigma, the authorities are duty bound to exercise the power of confiscation with a high degree of care, caution and circumspection. W.P.(c) No. 7884 of 2012 5 13. As can be seen from the facts of **Ravichandran** _(supra)_ it is beyond dispute that the owner of the vehicle was not an accused and presumably had no knowledge about the crime committed by certain other person using the petitioner's vehicle. 14. In the present instance, the facts are different. Be that as it may, what has been transported is 10 litres of IMFL validly purchased from a retail outlet. Though every person is entitled to carry certain quantity of IMFL, in the present instance it is in excess of the permissible limit. Viewed from another perpective, the petitioner is the Owner-cum-Driver of the Jeep essentially used for eking his livelihood. Under these ameliorating circumstances, the summary confiscation of the vehicle is disproportionate to the alleged offence, in which the petitioner already stood acquitted, as can be seen from Exhibit P5. 15. In the facts and circumstances, this Court modifies Exhibits P2 and P4 by substituting confiscation with the imposition of a fine of Rs.10,000/-. 16. It is, therefore, made clear that on the petitioner's W.P.(c) No. 7884 of 2012 6 paying the said fine of Rs.10,000/-, the respondent authorities shall release the petitioner's bank guarantee which the petitioner provided at the time of interim custody of the vehicle. With the above observation, the writ petition stands disposed of. No order as to costs. **DAMA SESHADRI NAIDU JUDGE** DMR/-