Silvy Sunny v. Sub Inspector of Police, Perumbavoor & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946** **WP(C) NO. 37905 OF 2015** ## **PETITIONER:** **SMT.SILVY SUNNY AGED 32 YEARS W/O. SUNNY, KAINIKUDY HOUSE, NEDUNGAPRA P.O., PANICHAYAM, ERNAKULAM DISTRICT.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENTS:** |**1**|**THE SUB INSPECTOR OF POLICE**| |---|---| ||**PERUMBAVOOR POLICE STATION, ERNAKULAM DISTRICT.**| |**2**|**THE DEPUTY COMMISSIONER OF EXCISE**| ||**ERNAKULAM - 682 018.**| |**3**|**THE ADDL. EXCISE COMMISSIONER**| ||**EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM -**| ||**695 033.**| |**4**|**THE EXCISE COMMISSIONER**| ||**COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS,**| ||**NANDAVANAM, THIRUVANANTHAPURAM - 695 033.**| **BY ADVS. GOVERNMENT PLEADER** ## **OTHER PRESENT:** **sri. venugopal v (gp)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.37905/2015 2 ## **JUDGMENT** The petitioner has approached this Court challenging Ext.P2 order of the Deputy Commissioner of Excise, Ernakulam ordering confiscation of 'Maruthi Swift VDI' Car bearing Registration No.KL-40/J-8778 belonging to the petitioner and Ext.P4 order of the Additional Excise Commissioner (Enforcement), Thiruvananthapuram confirming the order of confiscation in an appeal filed by the petitioner. 2. The brief facts of the case are as follows:- On 1.12.2014, the vehicle of the petitioner, which was found parked at Perumbavoor town (Kalachanda), was found carrying 11 litres of Indian Made Foreign Liquor. The brother of the petitioner who was using the car was also arrested, as he had allegedly committed the offences under Sections 55(a) and 55(i) of the Abkari Act. The allegation is that the brother of the petitioner had purchased and kept in his possession Indian Made Foreign Liquor in excess of the quantity permitted by law and also indulged in sale of the same on 1.12.2014 which was a day on which the sale of liquor is prohibited. The vehicle of the petitioner which was seized was released in terms of the directions issued by the Judicial First Class Magistrate CourtI, Perumbavoor on furnishing of a bond. Thereafter, the proceedings for confiscation of the vehicle were taken under the provisions of Section 67B W.P.(C)No.37905/2015 3 of the Abkari Act and Ext.P2 order was passed confiscating the vehicle. As already noticed above, the appeal filed by the petitioner against Ext.P2 order was dismissed by Ext.P4 order. 3. The learned counsel appearing for the petitioner would submit that the petitioner is absolutely innocent in the matter. It is submitted that the petitioner is clearly entitled to the benefit of the provisions contained in sub section (2) of Section 67C of the Abkari Act which provide that there shall be no order of confiscation of a vehicle, if the owner or his agent can show that they had taken all reasonable and necessary precautions against the use of the vehicle contrary to the provisions in the Abkari Act. It is submitted that the brother of the petitioner had no criminal antecedents and he used to borrow, for use, the vehicle of the petitioner very frequently. It is submitted that the petitioner had no reason to believe in such circumstances that the vehicle will be used for committing an offence under the Abkari Act. It is submitted that the petitioner had, therefore, taken all reasonable precautions to ensure that the vehicle is not used for commission of any offence under the Abkari Act and therefore, the vehicle of the petitioner is not liable for confiscation. It is also pointed out that, before Ext.P2 order was passed, the petitioner was not afforded an opportunity of hearing. The learned counsel has also placed reliance on a Division Bench judgment of this Court in _**State of**_ W.P.(C)No.37905/2015 4 ## _**Kerala and others v. Navaru Swapna Reddy; 2022 (1) KHC 563**_ , where this Court has held that the power of confiscation under Section 67B is discretionary and should be utilized with care and circumspection. It is submitted that in paragraph 15 and 16 of the aforesaid judgment, it was held as follows:- _“15.As noted, in terms of the orders impugned in the writ petitions, a Toyota Innova Crysta worth several lakhs of rupees has been confiscated, for the husband of the petitioner and a few of his friends having allegedly carried 3.3 litres of Indian made foreign liquor in the vehicle of the petitioner. The Indian Made Foreign Liquor allegedly carried in the vehicle is a commodity available for purchase in licensed shops in almost every State in the country including the State of Kerala. As far as the State of Kerala is concerned, the only restriction concerning the possession of the same, in the absence of any notification under Section 9 of the Act is that it shall not exceed the permissible quantity. The quantity of Indian Made Foreign Liquor allegedly carried in the vehicle was well within the permissible limit. This fact is not disputed. The case happened to be registered under Sections 55(a) and 58 of the Act read with Rule 9 of the Rules, since the liquor allegedly carried in the vehicle was intended for sale in the State of Telangana and the accused were found with the liquor in a prohibited area in terms of a notification under Section 9 of the Act. As rightly contended by the learned counsel for the petitioner, possession of Indian Made Foreign Liquor intended for sale in another State will not by itself make out the offence punishable under Section 58 of the Act, unless it is shown that the possession of the liquor was with the knowledge that the same has been unlawfully imported. Likewise, merely for the reason that a person is found to be in possession of Indian Made Foreign Liquor intended for sale in another State, it cannot be concluded that he has brought the same into the State from a place outside the State. Of course, the question as to whether the accused in the case had the knowledge that the Indian Made Foreign Liquor allegedly carried by them is unlawfully imported and the question as to whether the liquor is one brought by the accused from the State of Telangana, are matters of evidence. But, the fact remains that had the Indian made foreign liquor allegedly carried in the vehicle was one purchased from the State of Kerala and had the accused in the case were found just outside the jurisdiction of Chalakkayam Excise range, a case would not have been registered for the offences alleged. The pointed question, therefore, is as to whether the authorised officer was justified in ordering the confiscation of the vehicle invoking his power under Section 67B(2) of the Act in a case of this nature._ W.P.(C)No.37905/2015 5 _16. Kerala is not a State where sale and consumption of liquor is prohibited. Section 9 of the Act confers power on the State Government to prohibit transportation of liquor from any local area into another local area by notification. The power under Section 9 is being exercised by the State Government in and around religious places during festive seasons by notification prohibiting transportation of liquor to that area. One would not know normally about the notifications of this nature unless he/she belongs to the area concerned, though one is presumed in law to know about such notifications. It is seen that one of such notifications was issued by the State Government in connection with Sabarimala pilgrimage for the period from 12.11.2017 to 20.01.2018. Obviously, the purpose of such a notification is maintenance of tranquillity in the area since large number of pilgrims from different States gather in that place during the relevant period. Even though it is alleged in the impugned orders that boards were exhibited in the area about the notification issued under Section 9, it is difficult to attribute knowledge about such notifications to persons coming from different States. Again, in so far as Indian Made Foreign Liquor is available in market in both the State of Telangana and the State of Kerala, it is difficult to attribute knowledge to people who are coming from outside the State that the liquor intended for sale in other States cannot be brought into the State of Kerala even for consumption, for the State Government has not received excise duty in respect of the same. That apart, the materials indicate that the liquor allegedly carried in the vehicle was found beneath the seat of the car and it was detected in the course of a routine inspection conducted by the Bomb Squad of the Police who were patrolling in the area. It is evident that having regard to the quantity, the liquor, if at all brought by the accused, must not have been for any commercial purpose. There were altogether five passengers in the vehicle and there is nothing on record to indicate that who among the passengers possessed the liquor, for the quantity of the liquor is such that it could be carried by one person without the knowledge of others also. There is also nothing on record to show that the liquor was carried by the husband of the petitioner or that it was carried by another with the knowledge of the husband of the petitioner. In the aforesaid circumstances, according to us, it is a fit case where the authorised officer ought to have exercised discretion not to order confiscation of the vehicle worth several lakhs of rupees for the offences alleged to have been committed by means of the vehicle ordered to be confiscated in respect of 3.3 litres of Indian Made Foreign Liquor merely for the reason that it was intended for sale in another State and the vehicle happened to be in an area covered by a notification issued under Section 9 of the Act, though the allegation, if proved, would make out the offences alleged. Needless to say, Exts.P7 and P9 orders are liable to be interfered with. ”_ ## It is submitted that the matter requires reconsideration in the light of the W.P.(C)No.37905/2015 6 law laid down by this Court in _**Navaru Swapna Reddy** (supra)._ 4. The learned Government Pleader opposes the grant of any relief to the petitioner. It is submitted that the standard of proof in a proceeding for confiscation under Section 67B of the Abkari Act is not akin to the standard of proof in criminal proceedings. It is submitted that when the officer has reasons to believe that the vehicle was used with the knowledge of the owner for committing an offence under the Abkari Act, the vehicle is liable to confiscation. He places reliance on the judgment of a Division Bench of this Court in _**Deputy Excise Commissioner and another v. Sajin Jose; 2018 (5) KHC 31**_ in support of his contention. It is also submitted with reference to the judgment of another Division Bench of this Court in _**Excise Commissioner, Thiruvananthapuram and others v. Alex C.A.; 2017 KHC 852**_ that it is burden on the owner of the vehicle to prove that the vehicle used for carrying the contraband was so used without his knowledge and that he had taken all reasonable and necessary precautions for preventing the use of the vehicle for illegal activities. The learned Government Pleader has also drawn my attention to paragraph 4 of the counter affidavit filed in this case to establish that the petitioner was given every opportunity to substantiate her case before the authorities. 5. Having heard the learned counsel for the petitioner and the W.P.(C)No.37905/2015 7 learned Government Pleader and taking into consideration the law laid down by the Division Bench of this Court in _**Navaru Swapna Reddy** (supra),_ I am of the view that the matter requires reconsideration at the hands of the 3[rd] respondent. In _**Navaru Swapna Reddy** (supra),_ this Court has taken the view that where the allegation is only of possession of Indian Made Foreign Liquor in excess of permissible limit, the officer should have considered the question as to whether confiscation was to be made, in exercise of discretion. It was held in that case that it was a fit case where the authorised officer ought to have exercised discretion not to order confiscation of the vehicle considering the fact that the allegation was that the vehicle was used to transport 3.3 liters of Indian Made Foreign Liquor, which was not intended for sale in the State of Kerala and on the ground that the vehicle was found in an area covered by a notification issued under Section 9 of the Abkari Act. While the facts of the present case appear to be slightly different. There seems to be an allegation that the brother of the petitioner was also engaging in sale of the Indian Made Foreign Liquor. However, the fact remains that there is nothing to indicate that the officer had applied his mind to the relevant facts and had come to the conclusion that in the facts of the present case, confiscation is absolutely necessary. That apart, the contention of the petitioner that she did not have any knowledge of the fact that the vehicle would be used for 8 W.P.(C)No.37905/2015 committing offences under the Abkari Act has not been properly considered by the Appellate Authority. Therefore, Ext.P4 order is set aside. Ext.P3 filed by the petitioner against Ext.P2 order is restored to the file of the 3[rd] respondent. The 3[rd] respondent shall pass fresh orders on Ext.P3 appeal, after affording an opportunity of hearing to the petitioner and having due regard to the law laid down by this Court in _**Navaru Swapna Reddy** (supra)._ Fresh orders shall be passed by the 3[rd] respondent as directed above, within a period of three months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of in the above manner. Sd/- **GOPINATH P. JUDGE** acd W.P.(C)No.37905/2015 9 ## **APPENDIX OF WP(C) 37905/2015** ## **PETITIONER EXHIBITS** **P1 - PHOTOCOPY OF THE REPLY DT. 17.1.2015 SUBMITTED BEFORE THE 2ND RESPONDENT** **P1(A) - ENGLISH TRANSLATION OF EXT. P1.** **P2 - PHOTOCOPY OF THE ORDER NO. E7-12577/14 DT. 31.3.2015 PASSED BY THE 2ND RESPONDENT.** **P3 - PHOTOCOPY OF THE APPEAL MEMORANDUM DT. 16.4.2015 FILED BEFORE THE 3RD RESPONDENT.** **P4 - PHOTOCOPY OF THE ORDER NO. 37/APL/2915 DT. 06.8.2015 PASSED BY THE 3RD RESPONDENT.** **P5 - PHOTOCOPY OF THE NOTICE DT. 01.122015 ISSUED BY THE 2ND RESPONDENT.** **P5(A) - ENGLISH TRANSLATION OF EXT.P5.** **P6 - PHOTOCOPY OF THE JUDGMENT DT. 13.7.2015 IN WPCN O. 4172/2008 PASSED BY THIS HON'BLE COURT.** **P7 - PHOTOCOPY OF THE DECISION, RAJESH K. VS. SUB INSPECTOR OF POLICE, PALAKKAD AND OTHERS, REPORTED IN 2015(4) KHC 253.**