Wayand District Drivers Co-operative Society Ltd. v. Deputy Excise Commissioner Wayanad and The Additional Excise Commissioner Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943** ## **WP(C) NO. 32573 OF 2016** ## **PETITIONER/S:** WAYAND DISTRICT DRIVERS CO-OPERATIVE SOCIETY LTD. AGED 37 YEARS REP. BY THE SECRETARY, JOSHY K.T., S/O.THOMAS K.P, KANIYATTUKUDIYIL HOUSE, THEKKUMTHARA P.O., KALPETTA (VIA), WAYANAD DISTRICT BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/S:** 1 THE DEPUTY EXCISE COMMISSIONER WAYANAD. 2 THE ADDTIONAL EXCISE COMMISSIONER THIRUVANANTHAPURAM. BY ADVS. GOVERNMENT PLEADER ## **OTHER PRESENT:** BY GOVERNMENT PLEADER SRI. FAISAL K M THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C ) No. 32573/2016 -2- ## **Mohammed Nias C.P. J.,** **…......................................................... W.P.C. No. 32573 of 2016 …........................................................... Dated this the 18[th] day of January, 2022** ## **JUDGMENT** The petitioner, a co-operative society registered under the provisions of the Kerala Co-operative Societies Act and formed for the upliftment of its members, the autorikshaw drivers, is the registered owner of vehicle No. KL-12 J-2458. The vehicle was entrusted to one of its members, Jaimon with an agreement that he shall not use or ply the vehicle for any illegal purpose and shall not carry any illegal or illicit article in the said vehicle. It is submitted that the Excise Range Officer, Kalpetta seized the vehicle on 24-7-2015 at 10 p.m. at a place called Pozhuthana Junction in Vythiri Town alleging that Sri. Jaimon illegally transported 6 litres of Indian Made Foreign Liquor and accordingly, a case was registered under Section 55 (i) and 67 B of ## W.P.(C ) No. 32573/2016 -3- the Abkari Act. The police seized the vehicle and proceedings were initiated for confiscation as well. 2. Petitioner's power-of-attorney holder Jaimon moved the Chief Judicial Magistate's court, Kalpetta for interim custody of the vehicle and the same was dismissed. This Court by order in Crl.M.C. No. 6975 of 2015 dated 4-11-2015 released the vehicle to the petitioner subject to the conditions imposed. 3. The Deputy Commissioner, Waynad proceeded under Section 67 B of the Abkari Act and passed orders for confiscation as per Ext. P2 without considering Ext. P1 reply. The petitioner filed Ext. P3 appeal challenging Ext. P2 order of confiscation and the 2[nd] respondent without hearing the petitioner dismissed the appeal by Ext. P4 order. The petitioner challenges Exts. P2 and P4 orders on the above grounds that no opportunity was given before passing the impugned orders and that no offence under the Abkari Act was committed by the petitioner herein since the seized liquor was purchased from a Government outlet by the ## W.P.(C ) No. 32573/2016 -4- passengers in the autorikshaw and that the driver was totally unaware of the possession of the liquor by the passengers in the vehicle. It was also alleged that the petitioner is not implicated in the abkari offence instituted. 4. It is the further contention that the contraband liquor was only six litres of Indian Made Foreign Liquor, which though an offence punishable under Section 53 of the Abkari Act, was a compoundable offence. The petitioner also contends that they had taken all precautions to avoid any illegal use of its vehicle. In as much as the petitioner's involvement in the above crime was not proved as he was not even made an accused in the offence, Exts. P2 and P4 orders are illegal and unsustainable. The petitioner has also submitted that the criminal case registered against Mr. Jaimon, the driver of the vehicle has also ended in an acquittal. 5. The learned Government Pleader submits that though the criminal case ended in acquittal since confiscation proceedings are separate, the acquittal of the driver of the vehicle W.P.(C ) No. 32573/2016 -5- will not render the order of confiscation illegal. He also relied on the decision in **Shaiju v. Assistant Excise Commissioner and Another [2008 (2) KHC 952]** to support his contention. 6. I have heard the learned counsel for the petitioner as well as the learned Government Pleader. 7. It is seen from Ext. P4 order that the petitioner was not heard before passing the said order. The petitioner has a specific case that his contentions in the reply were not considered and that the petitioner had actually entered appearance in the appeal and vakalath was also filed on their behalf by the Advocate. It is also to be noted that the petitioner was not made an accused in the criminal case which means that there cannot be any allegation against them of their role in the offence in question. It may be true that the acquittal in the criminal case will not be a bar for the confiscation proceedings as both are distinct and separate. In the instant case, the petitioner was not even made an accused in the Abkari offence. The judgment relied on by the learned W.P.(C ) No. 32573/2016 -6- Government Pleader in Shaiju's case (supra) dealt with a case where the petitioner therein who was an accused in the criminal case which ended in acquittal argued that confiscation proceedings also should be held to be illegal because of the acquittal. This contention was not accepted. The said decision is clearly distinguishable as in the present case, the petitioner was not even made an accused. If there was any involvement of the petitioner in the offence, petitioner ought to have been made an accused and in the absence of the same, it cannot be inferred that he has anything to do with the offence alleged. 8. This Court held in **Nazeer M.P. v. State of Kerala and Others - [2021 (6) KHC 752]** that the owner of the vehicle should have prior knowledge or in the alternative he should be a party to the offence which will connote his active involvement and till it is established that the owner of the vehicle has knowledge or that he has connivance with the person or in illegally transporting any contraband, merely because his vehicle was involved in the ## W.P.(C ) No. 32573/2016 -7- offence, he cannot be penalised. These aspects were not considered while passing Ext. P2 order. It is also a relevant fact that Jaimon, the driver of the vehicle was acquitted after the criminal trial for the abkari offence. None of the reasons stated in Exts. P2 and P4 are enough to hold that the petitioner had anything to do with the offence/act in question or to proceed with an action for confiscation the Society, the owner of the vehicle. In the result, Exts. P2 and P4 orders are quashed. Needless to say that if the petitioner has provided any security for getting the interim release of the vehicle, such security shall be released to the petitioner. Writ Petition is allowed as above. Sd/- **Mohammed Nias C.P., Judge.** ## **ani/** /true copy/ ## W.P.(C ) No. 32573/2016 -8- ## **APPENDIX OF WP(C) 32573/2016** PETITIONER EXHIBITS EXT.P1 TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXT.P2 TRUE COPY OF THE ORDER NO.W 5-333/15 DATED 28/5/2016 ISSUED BY 1ST RESPONDENT EXT.P3 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXT.P4 TRUE COPY OF THE SAID ORDER NO.49/APL/2016, DATED 16/8/2016 ISSUED BY THE 2ND RESPONDNET