State of Kerala v. K Rajesh

## **C.R.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939** **WA.No. 1485 of 2016 IN WP(C).21756/2005** ## **AGAINST THE JUDGMENT IN WP(C) 21756/2005 of HIGH COURT OF KERALA DATED 28-07-2015** ## **APPELLANTS/RESPONDENTS IN THE WPC :** **------------------------------------** **1. THE SUB INSPECTOR OF POLICE CHERPULASSERY POLICE STATION, PALAKKAD DISTRICT.** **2. THE ASSISTANT EXCISE COMMISSIONER PALAKKAD.** **3. THE ADDL. EXCISE COMMISSIONER** **PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM.** ## **4. THE COMMISSIONER OF EXCISE** ## **EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM.** ## **BY ADV. GOVERNMENT PLEADER** ## **RESPONDENT/PETITIONER IN THE WPC : -------------------------------------** **K RAJESH AGED 30 YEARS, S/O. NARAYANAN, RAJESH NIVAS, CHERPULASSERY, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 101.** ## **R BY SRI.M.G.KARTHIKEYAN** ## **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.R.** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** **==============================** **W.A. No. 1485 of 2016** **============================== Dated this the 16[th] day of June, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The appeal is at the instance of the State. Challenge is against the verdict passed by the learned Single Judge setting aside the order of confiscation and releasing the vehicle which was involved in an 'Abkari' offence. The question involved is, whether the 'burden of proof' is upon the prosecution or upon the owner of the vehicle, to get the vehicle released, with reference to the absence of knowledge as envisaged under Section 67C(2) of the Abkari Act (hereinafter referred to as 'the Act'), from the consequences of confiscation under Section 67B of the Act. WA 1485/2016 2 2. The respondent herein was the owner of the Jeep bearing Registration No. KL-9E/7304 on 13.4.2004. The said vehicle was intercepted by the Deputy Superintendent of Police, Shoranur and his team in the course of transportation of toddy from Chittur, to Cheruplasserry, Palakkad District by about 9 a.m. In the course of physical examination, it was found that, apart from 400 litres of toddy covered by Ext.P1 and Ext.P2 permits, 70 litres of spirit was also being carried in the vehicle, which was being transported, despite the fact that it was a forbidden item. The vehicle and the contents were seized after completion of the procedural formalities and the driver of the vehicle and 2 others, who were travelling in the jeep, were arrested and arraigned as Accused 1 to 3 in Crime No. 85/2004 of Cheruplasserry Police Station, particularly in respect of the offence under Section 55(a) of the Act. The respondent herein being the owner of the vehicle was also implicated as the 4[th] Accused and the persons by name Murukan and WA 1485/2016 3 Chami (licensees of Toddy Shop Nos. 44/2004-05 & 28/2004-05), in whose favour Exts.P1 and P2 permits were issued, were also arraigned as Accused 5 & 6. Pursuant to the above proceedings, the vehicle was handed over by the Police to the competent authority to be dealt with under Section 67B of the Act. 3. In the course of further proceedings, the respondent/owner of the vehicle filed W.P.(C) No. 16353/2004 before this Court for getting interim custody of the jeep. The said writ petition was disposed of by this Court on 14.6.2004 directing interim custody of the vehicle to be released to the writ petitioner; subject to satisfaction of Bank Guarantee for a sum of Rs.1,75,000/-, which was stated as the market value of the vehicle as on date and also on execution of necessary bond by the writ petitioner. The vehicle was released accordingly. Later, a show-cause notice was issued by the 2[nd] respondent/authorised officer to the respondent/owner of the vehicle, on receipt of which, he WA 1485/2016 4 submitted Ext.P3 reply on 8.12.2004. The main contention was that, the vehicle was entrusted to the licensees for transportation of toddy and that he was never having any knowledge as to the transportation of the illicit liquor (spirit) on the date of interception and hence his vehicle was not liable to be confiscated under Section 67B of the Act. After hearing, the 2[nd] respondent/competent authority passed Ext.P4 order on 27.12.2004 holding that there was absolutely no merit in the contention raised by the owner of the vehicle and that the said authority was not satisfied that the requirements under Section 67C(2) of the Act were made out. In the said circumstances, the vehicle was confiscated under Section 67B of the Act. 4. By virtue of the remedy available under Section 67E of the Act, the respondent preferred an appeal before the 3[rd] respondent. After considering the matter, the 3[rd] respondent originally remanded the same, mainly for the reason that no opportunity of hearing had been given to the persons named WA 1485/2016 5 in the mahazar and hence to consider the matter afresh. Pursuant to the remand, the persons travelling in the vehicle were examined. The owner of the vehicle also appeared for hearing. It was thereafter, that the matter was finalised by the 2[nd] respondent by passing Ext.P6 order dated 18.2.2005, whereby confiscation of the vehicle under Section 67B of the Act was ordered. The respondent moved the Appellate Authority again, but the said attempt was not fruitful and the appeal was rejected by the 3[rd] respondent as per Ext.P7 order dated 8.5.2005. Thereafter, Ext.P8 notice was issued by the 2[nd] respondent on 18.6.2005, asking the owner of the jeep to surrender the vehicle which was released earlier pursuant to the verdict passed by this Court; making clear that in case of failure, the Bank Guarantee will be encashed. 5. The respondent filed a representation seeking time to produce the vehicle, which was considered and 20 days' time was granted. In the meanwhile, the respondent approached this Court by filing W.P.(C) No. 21756/2015 WA 1485/2016 6 (the year of filing of the writ petition shown in the top of the Judgment under challenge as '2005' is obviously a mistake). The claim was resisted by the State/Revenue by filing a detailed counter affidavit. 6. After hearing both the sides, the learned Single Judge made a reference to the verdict rendered by another learned single Judge of this Court in **Suraj K.R. v. Excise Inspector[2013(2) KHC 211]** and held that the State/Revenue had to establish that the owner of the vehicle had prior knowledge or in the alternative, that he was a party to the offence showing his active involvement and once it was not established that the owner of the vehicle had knowledge or that he had no connivance with the persons who were illegally transporting the contraband, the owner of the vehicle could not be penalised. Reference was also made to the outcome of the criminal case registered against him and the other accused, pursuant to Crime No. 85/2004 Cheruplasserry Police Station, which ended up in WA 1485/2016 7 acquittal of all the accused. It was accordingly, that the writ petition was allowed, setting aside the orders passed by the Departmental Authorities ordering and confirming confiscation; in turn, causing the vehicle to be released. This is under challenge at the instance of the State. 7. The basic aspect to be looked into is as to the scope of the provisions, particularly Sections 67B and 67C; with particular reference to the right conferred upon the owner of the vehicle to get his vehicle released, taking out of the clutches of Section 67B, in terms of Section 67C(2) of the Act. Section 67C of the Act is extracted below for convenience of reference. “67C. Issue of show cause notice before confiscation under Section 67B.-(1) No order confiscating any property shall be made under section 67B unless the person from whom the same is seized - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) is given an opportunity of making a representation in writing within such reasonable time as WA 1485/2016 8 may be specified in the notice against the grounds of confiscation; and (c) is given a reasonable opportunity of being heard in the matter. (2) Without prejudice to the provisions of sub section (1), no order confiscating any animal, cart, vessel or other conveyance shall be made under section 67B if the owner of the animal, cart, vessel or other conveyance proves to the satisfaction of the authorized officer that it was used in carrying the liquor or intoxicating drug or the material, still, utensil, implement or apparatus or the receptacle, package or covering without the knowledge or connivance of the owner himself his agent, if any, and the person in charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.” 8. The provision for confiscation of a vehicle carrying a contraband is stipulated under Section 67B of the Act, which is as part of the Scheme of the Statute to prevent the persons concerned in indulging such activities from committing the offences, which are detrimental more to the society and the public at large. Section 67B(2) clearly WA 1485/2016 9 stipulates that, when the authorised officer is satisfied that an offence under the Act has been committed with involvement of the property/vehicle seized, it is liable to be confiscated under the Act. While discharging the said duty by the authorised officer, the procedure to be followed in Section 67C(1) of the Act, stipulates that no order of confiscation shall be made, unless the person from whom the vehicle/property is seized, is given a notice in writing informing him on the ground on which it was proposed to be confiscated and giving an opportunity to make a representation in writing and reasonable opportunity of being heard in the matter. Once these requirements are satisfied, then the order of confiscation may follow, but still there is an exception by which the vehicle can be spared. The only way in which the owner can escape from the liability of confiscation under Section 67B is the situation under Section 67C(2) as extracted already. It is quite clear that the exception drawn conferring a right upon the owner WA 1485/2016 10 to save his vehicle from confiscation under Section 67B of the Act is subject to the proof to be adduced by him, to the satisfaction of the authorized officer, that the vehicle was used to carry the contraband without his knowledge or connivance, his agent, if any, and the person in charge of the animal, cart, vessel or conveyance and that each of them had taken all reasonable and necessary precautions against such use. 9. The conditions to be satisfied by the owner of the vehicle proving the requirements to get the benefit of S.67 C(2) are: - **i) That the involvement of the vehicle was without the knowledge of the owner,** - **ii) That the involvement of the vehicle was without the knowledge of the Agent,** - **iii) That it was without the knowledge or connivance of the persons in charge of the vehicle, and** - **iv) Each of them had taken all reasonable and necessary precautions against such misuse** WA 1485/2016 11 In other words, the expression used in the statute is not with the conjunction ‘ **or'** but ' **and** '. The owner has to satisfy all the four requirements simultaneously, so as to get the benefit of this provision. It is not enough, if the owner satisfies that he was not having any knowledge with regard to the transportation of the contraband in the vehicle. He has also to satisfy with reference to above referred instances in relation to his agent, if any, and also the person who was in charge of the vehicle. This being the position, the observation made by the learned single Judge that the 'burden of proof was upon the prosecution' is not correct, being contrary to the statutory prescription. We respectfully disagree with the observation and reasoning given by the learned single Judge. 10. The learned Single Judge, while passing the judgment under challenge, has placed reliance on the verdict passed by another learned Single Judge of this Court **in Suraj’s case (** supra). The relevant portion of the said WA 1485/2016 12 judgment has been extracted in 'paragraph 17' and the ratio of the said decision was accepted in 'paragraph 18', holding that once the owner had hired the vehicle for a legitimate purpose, unless it was proved by the prosecution that the owner of the vehicle was having clear knowledge of the instance of transportation of the contraband in the vehicle, the vehicle could not be confiscated in terms of Section 67B of the Act. We are of the view that the said reasoning is not correct or sustainable, in view of the observations made herein before. That apart, the learned single Judge was also not correct in holding that the decision rendered by another learned single Judge in **Suraj's case** (supra) was in support of such a proposition. This is evident from the very first sentence of the relevant portion of the verdict in **Suraj's case** (supra) extracted in 'paragraph 17' of the judgment under challenge in this appeal. The opening sentence reads that, it is for the petitioner to prove that he took all reasonable and necessary precautions against the use of his WA 1485/2016 13 vehicle, in violation of the provisions of the Abkari Act. However, after extracting the same, the learned single Judge unfortunately proceeded to hold that, it was for the 'prosecution' to prove the factum of knowledge of the owner, as adverted to in 'paragraph 14'. This being the position, the reference made in 'paragraph 15' as to the fundamental right of the owner of the vehicle to carry on the business in terms of Article 19(1)(g) of the Constitution of India cannot support the case of the writ petitioner in any manner. 11. With regard to the 'burden of proof', normally it is for the prosecution to establish the offence alleged against the accused as per the criminal jurisprudence. But the concept of shifting the burden to the other side, to prove that he was not involved, is not alien to the scheme of the statute, **as evident from Section 64 of the Act** . The said provision reads as follows: WA 1485/2016 14 ## **“Section 64: Presumption as to commission of offence in certain cases.--** In prosecutions under [section 55, section 55 B, section 56 A, section 57, section 58, section 58 A, and section 58B] it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a license or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under [section 8 or section 55 or section 55 B or section 56 or 56 A or section 57 or section 58 or section 58A or section 58 B] as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence:” From the above, it is clear that, in respect of the offence under Section 55 (a) of the Abkari Act, it is for the accused to prove that, he was possessing the item concerned based on a valid authority and the burden of proof is never upon WA 1485/2016 15 the prosecution. This is with intent to give effect to the scheme of the statute, which is more deterrent in nature, to prevent the persons from indulging in such activities contrary to the provisions of law. 12. There are instances with regard to other statutes as well, fixing the burden to prove the 'negative aspect' on the accused, that he was not involved in such matters. The burden of proof in this regard under **Section 139 of the Negotiable Instruments Act,** reads as follows: “139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.” Such a provision placing the burden upon the accused, is with a specific purpose based on the legislative wisdom of the law makers. 13. Similarly, when we come to some other statutes, for e.g. **Kerala Private Forests (Vesting And** WA 1485/2016 16 **Assignment) Act, 1971,** which came into force from 10.05.1971, by virtue of the mandate Under **Section 3(1)** of the said Act, the property concerned will stand vested with the Government as vested forest. Of course, a remedy is given to the owner of the property to contend that the property was 'not a vested forest' as on the appointed day given under Section 2(a) of the Act. The burden is upon the person who claims to be the owner of the forest land, who has to prove that it was not a 'vested forest' as on 10.05.1971. The burden of proof cast upon the owner of the property in this regard was sought to be questioned some aggrieved persons, contending that, it was for the Government/Revenue to have it proved the other way round. The said contention was repelled and 'the burden of proof' was stated as upon the owner of the property, as per the decision rendered by a Full Bench of this Court in **State** ## **of Kerala v. Chandralekha [1995(2)KLT 152 (FB)].** 14. Several such other instances can be cited in this WA 1485/2016 17 regard. We only mean to say that, it is not an absolute principle, that in each and every case, it is for the prosecution/State to prove the relevant fact. Depending on the nature and scope of the statute, specific provisions have been made in the relevant statute in appropriate manner. The nature and scope of the statute (Abkari Act) had attracted the attention of this Court when the scope of Section 53(B) of the Act, dealing with the power of the court to grant interim custody of the vehicle pursuant to the amendment brought out in the statute, in comparison with the power of the competent authority to give interim custody of the vehicle involved in an Abkari offence was considered. In the decision reported in **Nikhil T.M. v. Deputy Excise Commissioner, Kannur and others** [2016 (5)KHC 215 =(2016(4)KLT 372] ( to which one of us P.R. Ramachandra Menon, J. was a member). The observations made by this Court in 'paragraph 5' of the judgment is relevant and the same is extracted below: WA 1485/2016 18 5. Indisputably, the offence as alleged in the instant case, if proved, is of a very serious nature. Stringent provisions are made in the Statute, which is a self-contained code, to punish the guilt, which is more with intent to deter anybody from pursuing such/similar activities any further. Apart from the punishment to be imposed, the vehicle and the goods seized are liable to be confiscated in terms of Section 67B of the Act. However, considering the merit of each case, it is possible to have interim custody of the vehicle released. The power of 'confiscation' conferred under Section 67B of the Act is absolute, by virtue of the 'nonobstante clause' therein. If the authorised officer is satisfied that an offence under the Act has been committed in respect of or by means of that property (which includes the vehicle as well) and the property is liable for confiscation, it is open for such authorised officer to order confiscation of the property/vehicle and the contents, whether or not prosecution is instituted for commission of the offence. The said order is subject to scrutiny of the Appellate authority under Section 67E of the Act and that of the Revisional authority under Section 67F of the Act. If the authorised officer passes an order under Section 67B that the property is not liable to be confiscated under the Act, it is to be returned to the person from whom the vehicle was seized, in the manner as prescribed under Section 67D of the Act. Granting of 'interim custody' of the vehicle has to be considered in the said circumstances; especially in view of WA 1485/2016 19 the serious nature of the offence and the consequences to be resulted, if the requirements are satisfied.” It has been made clear by this Court in 'paragraph 12' of the above verdict, that there cannot be any difference of opinion that the statute has to be read as it is, and if there is ambiguity in understanding the same, 'rule of purposive interpretation' has to be adopted. In the instant case, Section 67C(2) is quite categoric to the effect that, the burden to establish that the owner/agent/person in charge of the vehicle was having no knowledge as to the transportation of the contraband in the vehicle concerned is upon the owner. The provision never says that it is the obligation of the Prosecution/State. A contrary position is intended, making it obligatory for the owner to have the same established and it is not at all correct to say that the burden is actually upon the prosecution, as mostly available under the general provisions of law. The Kerala Abkari Act, WA 1485/2016 20 which is a self-contained Code, deals with the manner in which the exemption can be drawn and how the benefit can be derived from Section 67C(2) of the Act; which cannot be rewritten by any court holding that it is for the prosecution to establish the relevant ingredients. That apart, as made clear by us in the earlier paragraphs, the owner has to establish not only that he himself was not having knowledge, he has also to establish that his agent, if any, and the person who was under the control of the vehicle had no knowledge as to the transportation of the said contraband in the vehicle and each of them had taken all reasonable and necessary precaution to see that the vehicle was never put to such use. 15. The circumstances involved in **Suraj’s case** (supra) are entirely different. In the said case, toddy carried in the vehicle was adulterated and the vehicle was confiscated by the competent authority. The prosecution ended up in acquittal, holding that the adulterant (chloral WA 1485/2016 21 hydrate) at the relevant time was not a prohibited substance, (the presence of which in the toddy was the reason for holding that the toddy was adulterated). It was with reference to this vital fact and that no materials were also produced to substantiate the suspicion raised by the prosecuting authority; that the learned single Judge observed there was absolutely no rhyme or reason to sustain the confiscation; in turn ordering the vehicle to be released. The said judgment does not come to the rescue of the respondent/petitioner. As it stands so, the reliance placed on the said verdict by the learned single Judge in 'paragraph 17' of the judgment under challenge, to extend benefit to the writ petitioner is not correct or sustainable in law. 16. Another important aspect to be noted is that, the learned single Judge has apparently placed some reliance on the acquittal of the accused in the criminal case, pursuant to the crime registered against them, as noted in WA 1485/2016 22 'paragraph 16' of the judgment under challenge. Though it has been observed in the last sentence that the factum of acquittal is not a compelling factor for release of the vehicle, the basic aspect to be noted is that, 'prosecution' is not at all a pre-requirement/ _sine-qua non,_ so as to proceed with steps under Section 67B of the Act. The said provision _' - '_ starts with _non obstante_ clause, clearly stipulating that the course to be proceeded under the said provision is notwithstanding anything contained in the 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 WA 1485/2016 23 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). The scope of the said provision was considered by a learned single Judge of this Court as per the decision reported in **Shaiju v. Assistant Excise Commissioner [2008(3)KLT 78],** clearly holding that, irrespective of whether the accused is prosecuted or not for the offence involved and irrespective of the outcome involved in an Abkari offence, the vehicle is liable for confiscation. We affirm the said view and hold that the question whether the accused was acquitted in the criminal case in respect of the offence under the Abkari Act or whether he was let free pursuant to compounding of the offence under Section 67A of the Act, is not a relevant or significant aspect in pursuing steps under Section 67B of the Act dealing with the power of confiscation. 17. It is brought to the notice of this Court by the WA 1485/2016 24 learned Government Pleader that, another Division Bench of this Court had also occasion to consider the scope of Sections 67B and the benefit under Section 67C(2) of the Act enabling the owner to have his vehicle released in the given circumstances. The said verdict was rendered on 5.10.2016 in W.A.No. 2652 of 2015 arising from W.P.(C) No. 16855 of 2015 (to which one of us - Shircy V., J was a member). The writ petitioner in the said case was the owner of the vessel and he had given the said vessel on lease to another concern by name M/s. Green Bay Leisure Management Private Limited for a period of five years. In the course of business, the lessee had let it out to another concern by name “My Kochi on line”, who organised a DJ party on the vessel on 27.7.2014. The authorities intervened on that day and on raid, seized 125.5 litres of Tin Beer, 3.950 litres of IMFL and 5 gms. of dry Ganja, leading to registration of Crime No. 1724 of 2014 of the Central Police Station, Ernakulam for the offences under WA 1485/2016 25 Section 55(i) of the Abkari Act and Section 20(b)(ii) of the N.D.P.S. Act. In the course of further proceedings, the vessel seized was confiscated by the competent authority. The statutory remedy by way of appeal and the revision ended up in dismissal, which led to the writ petition filed by the owner. The main contention was that ,he was abroad and was having no knowledge as to the involvement of the offence in any manner and hence his vessel had to be released. The said plea was accepted by the learned single Judge, who ordered the vessel to be released, for not proving the factum of knowledge of the owner at the relevant time. The relevant provisions of the Statute, particularly Section 67C(1) & (2) were adverted to by the Court and the mandate under Section 67C(1) of the Act (that no order of confiscation shall be made, unless the person from whom the subject matter is seized, is given notice in writing informing him of the grounds on which it was proposed to be confiscated and also as to the necessity WA 1485/2016 26 to give an opportunity of hearing) was explained. Once these requirements are satisfied, the only way in which the owner of the vessel can escape from the consequence of confiscation was held as stipulated under Section 67C(2) of the Act. After extracting Section 67C(2), the Bench held that the owner had to prove, to the satisfaction of the authorized officer, as to the four different requirements under the said provision, making it clear that the 'burden of proof' was entirely upon the owner to adduce evidence and to prove the cumulative requirements of sub section (2) of Section 67 of the Act. The submission made on behalf of the owner that he was abroad and was not having knowledge was repelled by the Bench, holding that even if there was no knowledge or connivance on the side of the owner, he had to establish that his agent and the person in charge of the vehicle were also not having any knowledge and that each of them had taken necessary and reasonable precautions against such use. The said requirements were WA 1485/2016 27 held as admittedly not satisfied and accordingly, the appeal filed by the State was allowed, setting aside the verdict passed by the learned single Judge. We are in full agreement with the reasoning given in the said verdict. 18. Lastly, we would like to add that, we have come across another judgment authored by the learned Judge on a subsequent date as to the scope of the provision, particularly on the 'burden of proof' under Section 67C(2) of the Act. The said decision is reported in **Jacob Thomas @Sabu Paster v. Assistant Excise Commissioner, Palakkad and another [2015 (5)KHC 514],** where a specific finding has been rendered to the effect that the burden of proof is upon the owner of the vehicle. It is worthwhile to extract paragraphs 13 & 14 of the said verdict for convenience of reference. “13. Next, I may consider the petitioner's another contention concerning Section 67C of the Act; namely, lack of complicity or knowledge. Though the learned counsel has repeatedly submitted that the petitioner has no knowledge, I WA 1485/2016 28 am afraid, I do not see any positive explanation available on record regarding the petitioner's alleged lack of knowledge about the crime. In my considered view, the burden cast on the owner of the vehicle under Section 67C of the Act is positive in terms. In other words, mere blanket denial concerning one's lack of knowledge is of no consequence. 14. It is for the owner of the vehicle to explain in positive terms under what circumstances he lost possession or control over the vehicle and in what circumstances—if at all he had knowledge—the vehicle had been put to illegal use. Unless such explanation is forthcoming from the owner of the vehicle, it cannot be said that the respondent officials have to presume a lack of knowledge on the part of the owner of the vehicle in terms of Section 67C of the Act.” 19. From the above discussion, it is brought out point blank that the scope of the statute is something else i.e. the burden of proof is upon the owner of the vehicle and it is for him to establish all the four requirements as mentioned already, which are not satisfied in the instant case. This being the position, we do not require any second thought to hold that the verdict passed by the learned single Judge WA 1485/2016 29 requires to be interdicted. We do so. The judgment dated 28.7.2015 stands set aside and the orders passed by the Departmental Authorities are restored. It is open for the appellant to pursue steps to cause production of the vehicle by the respondent and to proceed with further steps or else to get the Bank Guarantee furnished by the respondent encashed in accordance with law. The appeal stands allowed. No costs. **Sd/-** ## **P.R. RAMACHANDRA MENON JUDGE** ## **Sd/-** **SHIRCY V. JUDGE** ks True copy P.S. To Judge WA 1485/2016 30 S. 311 is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other WA 1485/2016 31 proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of