Shanmughan v. State of Kerala

**WP(C) NO. 29970 OF 2018** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** ## **WP(C) NO. 29970 OF 2018** ## **PETITIONER/S:** SHANMUGHAN AGED 53 YEARS HOUSE NO. 6/714, ILLAVUMKUDI HOUSE VENGOLA PERUMBAVOOR, ERNAKULAM DISTRICT. ERNAKULAM BY ADV NIREESH MATHEW ## **RESPONDENT/S:** 1 STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, TAXES(A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. THIRUVANANTHAPURAM, PIN - 695001 2 THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM, PIN-695 033. 3 THE ADDITIONAL EXCISE COMMISSIONER(ENFORCEMENT) KERALA, THIRUVANANTHAPURAM, PIN-695 033. 4 THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD, PIN-678 001. 5 THE EXCISE INSPECTOR, EXCISE RANGE, ALATHUR, PALAKKAD DISTRICT, PIN-678 706. **OTHER PRESENT:** SMT.MABLE.C.KURIAN, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 29970 OF 2018** **2** **P.V.KUNHIKRISHNAN, J -------------------------------------------W.P.(C.) No.29970 of 2018 -------------------------------------Dated this the 27[th] day of July, 2021** ## **JUDGMENT** The above writ petition is filed with the following prayers : “i. Issue a writ of certiorari or other appropriate writ, calling for the records leading to Exhibits P3, P5 and P9 and quash the same as highly illegal, arbitrary, unreasonable and unjust. ii. Issue a writ or mandamus or other appropriate writ, order or direction commanding the respondents 2 to 4 to release the vehicle of the petitioner, Mahindra Pick Up Van, bearing registration number KL-40/A-9376 to the petitioner unconditionally. iii. Declare that the petitioner's vehicle, Mahindra Pick Up Van, bearing registration number KL-40/A-9376 seized in C.R.No.49/2016 of Alathur Excise Range is not liable to be confiscated under Section 67B of the Abkari Act. iv. Grant such other and further reliefs as this Hon'ble Court may deem fit in the facts and circumstances of the case.” 2. The petitioner is the registered owner of Mahindra **WP(C) NO. 29970 OF 2018** **3** Pick Up Van bearing registration No.KL-40/A-9376. According to the petitioner, he is one of the licensee of toddy shop in Group No.XI in Perumbavoor Excise Range and he was using the said vehicle for bringing toddy from the limits of Palakkad Excise Division to his toddy shops. It is stated in the writ petition that the toddy was bringing on the basis of a valid toddy transport permit issued by the 4[th] respondent. According to the petitioner, he is permitted to transport 750 litres of toddy on every day. On 27.4.2016 at about 9.10 am, some excise officials intercepted the vehicle of the petitioner, while the vehicle was bringing toddy from Palakkad to Perumbavoor in the above vehicle. When they measured the toddy in the vehicle, it was found that the total quantity of toddy in the vehicle was less than the quantity of toddy noted in Alathur Check Post. On the basis of the said allegation, a case was registered as C.R.No.49/2016 by the 5[th] respondent alleging offences punishable under Sec.56(b) and 67B of the Abkari Act. The vehicle of the petitioner was also seized and subsequently, it was given to the petitioner as per order dated 15.6.2016 in CMP No. 4332/2016 by the Judicial First Class Magistrate **WP(C) NO. 29970 OF 2018** **4** Court, Alathur. 3. Subsequently, confiscation proceedings were initiated by the 4[th] respondent. Ext.P1 is the show cause notice. The petitioner submitted Ext.P2 reply. Thereafter, the confiscating authority passed Ext.P3 order confiscating the vehicle. Aggrieved by Ext.P3 order, the petitioner filed Ext.P4 appeal before the appellate authority. The appellate authority as per Ext.P5 order dismissed the appeal, confirming the order of confiscation by the confiscating authority. Subsequently, consequential proceedings were initiated by the confiscating authority by issuing direction to the petitioner to produce the vehicle. Ext.P9 is the notice. Aggrieved by Ext.P3, P5 and P9, this writ petition is filed. 4. Heard counsel for the petitioner and the Government Pleader. 5. The counsel for the petitioner reiterated his contention in this writ petition. The main point raised by the petitioner is that the alleged date and time of the seizure in this case was on 27.4.2016 at 9.30 am. On the same day at 11 am, another vehicle bearing registration No. KL-44-D-4402 was **WP(C) NO. 29970 OF 2018** **5** also intercepted with the same allegation and that vehicle was also seized. As per Ext.P6 order, the 3[rd] respondent allowed that appeal. The same contention was raised by the petitioner also in Ext.P4 appeal. The same officer dismissed the appeal of the petitioner as per Ext.P5 order without considering the grounds in Ext.P4 appeal. The counsel submitted that the impugned order passed in this writ petition are unsustainable. 6. The Government Pleader supported the confiscation order and the appellate order. The Government Pleader takes me through the relevant portion in Ext.P3 order in which, it is stated that the measurement of the toddy was done in the Check Post properly and there is nothing to interfere with the impugned order. The Government Pleader also submitted that there is an admission from the petitioner that there is a loss of 180 litres of toddy in the vehicle. Of course, this is disputed by the petitioner. The counsel for the petitioner submitted that his definite case is that toddy is not measured properly from the Excise Check Post and by the Detecting Officer. 7. Admittedly, the registration of case referred in Ext.P3 order and the registration of the case referred in Ext.P6 **WP(C) NO. 29970 OF 2018** **6** order are on the same date. Admittedly, the Detecting Officer referred in Ext.P3 order and the Detecting Officer referred in Ext.P6 order are one and the same. It is also an admitted fact that the allegation in Ext.P3 order and in Ext.P6 order are also, almost similar. The 3[rd] respondent allowed Ext.P6 and the same appellate authority, who considered Ext.P4 appeal of the petitioner dismissed the same, as per Ext.P5 order. Moreover, admittedly, the petitioner was the registered owner of the vehicle. He was not present in the vehicle. The driver of the vehicle from whose possession, the toddy was seized is not heard before passing order by the Detecting Officer. This Court in judgment dated 29.6.2021 in WP(C) No.26180 of 2018 [ **Navaru Swapna Reddy** v. **State of Kerala** ] held that, before passing confiscation order, the person who was present in the vehicle also should be given notice. The relevant portion of the above judgment is extracted hereunder : “12. There is a marked difference between Sec.67C of the Kerala Abkari Act and Sec.14(4) of the Tamil Nadu Prohibition Act, 1937. As per Sec.14(4) of the Tamil Nadu Prohibition Act, what is stated is that while passing an order of confiscation, the owner or the person from whom such animal, vessel, cart or other vehicle is seized, shall be given a notice. But in Sec.67C of Kerala Abkari Act, there is no such option given to the confiscating authority to give notice to either the owner or the person from whom the seizure is effected. That also strengthens my view that as per Sec.67C of the Abkari Act **WP(C) NO. 29970 OF 2018** **7** the notice to the person from whom the contraband seized is mandatory along with a notice to the registered owner. 13. In such circumstances, according to me, the order passed by the confiscating authority confiscating the vehicle without hearing the person from whom the same is seized, is illegal. Therefore, according to me, Exts.P7 and P9 orders are to be set aside and the matter should go back to the confiscating authority for fresh consideration, after hearing the person from whom the contraband articles are seized.” 8. Moreover, the same officer who passed Ext.P6 order considered Ext P4 appeal and dismissed the same as per Ext P5 order, I think a reconsideration by the confiscating authority is necessary in the facts and circumstances of this case. In such circumstances, according to me, the confiscating authority should reconsider the matter, in the light of Ext. P6 order and also after issuing notice to the driver of the vehicle as held by this Court in the judgment dated 29.6.2021 in W.P. (C.) No. 26180 of 2018. Therefore, this writ petition is allowed, in the following manner : 1. Exts.P3, P5 and P9 are quashed. 2. The fourth respondent is directed to reconsider the matter, in the light of Ext.P6 order and also after hearing the petitioner and the driver of the vehicle, from whom the toddy is seized. 3. The fourth respondent is directed to complete the above **WP(C) NO. 29970 OF 2018** **8** proceedings, as expeditiously as possible, at any rate, within 5 months from the date of receipt of a copy of this judgment. SD/- **P.V.KUNHIKRISHNAN** **JUDGE** SKS **WP(C) NO. 29970 OF 2018** **9** ## **APPENDIX OF WP(C) 29970/2018** PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 06.09.2016 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 01.10.2016. EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 27.12.2016. EXHIBIT P4 TRUE PHOTOCOPY OF THE MEMORANDUM OF APPEAL DATED 14.01.2017. EXHIBIT P5 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 10.04.2017. EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 16.08.2016. EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DATED 13.12.2016. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 18.05.2017. EXHIBIT P9 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 26.08.2018. EXHIBIT P10 TRUE PHOTOCOPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C)NO.4172/2008 DATED 13.07.2012. EXHIBIT P11 TRUE COPY OF THE DECISION REPORTED IN 2015(4)KHC 253.