W.P(C).24213/2020

W.P(C).24213/2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 30[TH] DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** **WP(C) NO. 24213 OF 2020** ## **PETITIONER/S:** **0** **THE HYCOUNT MOULDERS, VI/41, TEMPLE ROAD, PARK AVENUE, ALUVA VI/41, TEMPLE ROAD, PARK AVENUE, ALUVA, ERNAKULAM683101, REPRESENTED BY ITS MANAGING PARTNER, HINFAS M.H., S/O. M.A. HABEEB (LATE), BUSINESS, NEW SHERRY LAND, POORNA NAGAR, SANTHOSH LANE, ALUVA - 683101 (OWNER OF TATA MOTORS MGV GOODS CARRIAGE)** **BY ADVS. P.SAJU SRI.R.SUDHEER SMT.K.N.RAJANI SRI.R.PRATHEESH (ARANMULA) SHRI.RAJEESH V.R.** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2 THE EXCISE COMMISSIONER, EXCISE COMMISSIONERATE, VIKAS BHAVAN, P.O. NANDAVANAM, THIRUVANANTHAPURAM-695033.** **3 ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT), EXCISE COMMISSIONERATE, VIKAS BHAVAN, P.O. NANDAVANAM, THIRUVANANTHAPURAM-695033.** - **4 DEPUTY EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, EXCISE ZONAL COMPLEX,** W.P(C).24213/2020 2 ## **KACHERIPPADY, ERNAKULAM-682018.** **5 THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ANGAMALY, ERNAKULAM-683572.** ## **BY ADV GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).24213/2020 3 ## **JUDGMENT** Petitioner is a partnership firm represented by the Managing Partner, who is also the owner of a Tata Motors MGV - Goods carriage, evidenced by Ext.P1. It is stated that, on 24.12.2019, while the vehicle was returning from Kasaragod after unloading/loading of the goods, 5[th] respondent intercepted the vehicle and recovered from the vehicle 4.5 liters of liquor saleable only in the Union Territory of Puducherry and crime No.74 of 2019 of the Excise Range, Angamali was registered. The driver was arrested and confiscation proceedings were initiated thereafter in accordance with law. It was preceded by Ext.P5 notice issued by the 4[th] respondent under section 67(c) of the Abkari Act to show cause as to why the vehicle owned by the petitioner and involved in crime no.74 of 2019 shall not be confiscated as per law. 2. The petitioner/firm submitted Ext.P6 reply wherein, it was contended that the contraband was transported without the consent or knowledge of the petitioner/firm and the driver has violated the rules and regulations of the terms of the employment. It was also stated that, the management had taken all possible steps to ensure that the vehicle was not used for any illegal or illicit purpose. The driver has W.P(C).24213/2020 4 contravened this and he alone is responsible for transporting the liquor. Rejecting the above contention, 4[th] respondent by Ext.P8 order confiscated the vehicle invoking section 67(2)(b) of the Abkari Act and ordered to pay a fine of Rs.11,50,000/- for the release of the vehicle. 3. This was challenged in appeal before the 3[rd] respondent by Ext.P9 appeal. Along with the appeal, the petitioner produced the Code of Conduct dated 20.10.2018 issued by the petitioner to his employees, which is produced as Ext.P10. They also produced a show cause notice issued to the driver. The appeal was dismissed vide Ext.P11 order. A review petition was filed before the second respondent as Ext.P12, which was also dismissed later; as evident from the record. Ext.P14 is a letter issued by the driver pleading that no stringent action be taken against him and the liquor must have planted in his vehicle by some other outside person. Aggrieved by the above order of confiscation and the order by the Appellate Authority, the writ petitioner has approached this Court. The prayer sought is to quash Exts.P8 and P11 orders. 4. Heard the learned counsel for the writ petitioner and the learned senior Government Pleader who had filed a detailed statement and vehemently opposed the prayer sought in the writ petition. 5. The specific defence set up by the writ petitioner is that, he is the owner of about 30 lorries which are used in the course of the W.P(C).24213/2020 5 business, which was commenced in 1983. It mainly deals with the manufacture and sale of PVC water tanks and PVC pipes. He has given the details of the business and asserted that the lorries of the firm are driven by permanent drivers. Presumably, the above contention is advanced to set up a defence that the petitioner is dealing with a totally different business and the transportation of the liquor in the vehicle has no nexus with the main activity of the establishment. 6. The petitioner has a specific case, which was also disclosed in Ext.P5 reply that specific instructions have been given to all the employees in the form of a circular, which is produced as Ext.P10 and also produced before the Appellate authority. It was issued on 20.10.2018 and are addressed to the drivers. The main provision in the above, relied on by the petitioner is that the drivers shall not use liquor, narcotic drug or any other illicit item during transportation. They shall also not carry liquor for own purpose or for sale. They were warned that, if such instances occur, company will initiate case against them and they are likely to loose their job. The driver in his reply has stated that, he is innocent of that offence and that, somebody else might have planted it in the vehicle for some other ulterior purpose. He has no case that, it was done with the knowledge or under the directions of the employer. W.P(C).24213/2020 6 7. The most important aspect to be noted is that the vehicle was on a long journey. Writ petitioner in his objection has also stated about the specific steps taken by the owner regarding his business and it is stated that, vehicles at the time of loading and at the time of unloading are verified by the employees of the company to ensure that all the vehicles are loaded and unloaded at the destination and that, no other item is transported. It seems that, special methods have been evolved to ensure the above at both termini. 8. It seems that the authority, apart from referring to the prosecution case, has vaguely stated that, in the reply of the petitioner nothing has been stated to substantiate the contention that the petitioner has taken specific steps to ensure that the vehicle is not used for any illegal purpose. In Ext.P8 order also and from the records available, it is seen that the vehicle involved in the crime. Absolutely, no material was placed before the authority to confirm that, it was under the directions or with the knowledge of the writ petitioner/the owner. However, law presumes that the liability is on the owner to establish that the driver has acted contrary to the specific instructions or that, it was done without the knowledge of the employer. Replying to the contention of the prosecution, the learned counsel for the petitioner pointed out that in **K.M.Hassan Kunju v.** **Asst. Excise Commissioner (2006) KHC 522** , it was held that the W.P(C).24213/2020 7 word owner should be understood as the person in possession and control at the time of commission of offence. It was hence contended that, in the present case, the entire liability should be cast on the driver alone, who did the mischief without the knowledge of the owner and contrary to the express direction given by him. 9. It seems that, both the authorities have not taken into consideration the fact that transportation of liquor does not in any manner form the part of the main business of the employer. Definitely, liability is on the owner to establish that the driver has acted contrary to his direction and he has taken specific direction to ensure that vehicle is not used for any illegal purpose. However, the records clearly indicate that the driver has no case that, it was done with the knowledge of the employer. The petitioner is also armed with the circular issued by him, to give specific instructions to drivers. They have also referred to the methods available in place and mechanism in place to ensure that the vehicle is not used for any illegal purpose. Having considered this, I feel that, both the authorities had not adverted to these issues. Having considered this, I am inclined to set aside Exts.P8 and P11 orders and remand the matter back to the Excise Deputy Commissioner to consider the above facts in the light of the observations made above. Definitely, in the statement filed by the respondents, they relied on the decision reported in **Deputy Excise** W.P(C).24213/2020 8 ## **Commissionder and Another v. Sajin Jose (2018(5) KHC 31)** wherein it was held that, Section 67 C of the Act would indicate that the burden is on the accused, and the owner of the vehicle has to prove that he had taken sufficient care to see that his vehicle is not used for committing an offence. The above defence set up by the petitioner has not been considered in the light of this legal proposition. 10. Having considered the above, I am inclined to set aside both orders and remanding the matter to the authority directing him to consider the contentions set up by the petitioner in the light of the observations made above, Writ Petition is allowed. The fourth respondent shall pass final order as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Writ Petition is allowed as above. **Sd/SUNIL THOMAS JUDGE** **Sbna/** W.P(C).24213/2020 9 ## **APPENDIX** ## **ANNEXURE/EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF VEHICLE BEARING REG. NO. KL 41-M-1627, TATA MOTORS GOODS CARRIAGE. EXHIBIT P2 TRUE COPY OF CRIME OCCURRENCE REPORT IN CR NO. 74/2019 OF EXCISE RANGE OFFICE, ANGAMALI DATED 24/12/2019. EXHIBIT P3 TRUE COPY OF SEIZURE MAHAZAR DATED 24/12/2019. EXHIBIT P4 TRUE COPY OF TAX INVOICES NO. MMDT-12668 AND PRINTED COPY OF ITS E-WAY BILL DATED 21/12/2019. EXHIBIT P5 TRUE COPY OF THE NOTICE NO. E710614/19DATED 31/12/2019 FROM THE OFFICE OF THE 4TH RESPONDENT U/S. 67(C) OF ABKARI ACT. EXHIBIT P6 TRUE COPY OF THE REPLY TO EXHIBIT P5 NOTICE DATED 15/01/2020. EXHIBIT P7 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 08/01/2020 ISSUED BY THE FIRM TO THE ALLEGED DRIVER. EXHIBIT P8 TRUE COPY OF THE ORDER NO. E 7-10614/19 DATED 02/03/2020 PASSED BY RESPONDENT NO.4. EXHIBIT P9 TRUE COPY OF THE APPEAL DATED 12/03/2020 PREFERRED BEFORE THE 3RD RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE CIRCULAR OF CODE OF CONDUCT ISSUED BY THE PETITIONER TO THE EMPLOYEES OF VEHICLES OWNED BY THE FIRM** W.P(C).24213/2020 ## 10 **DATED 20/10/2018.** **EXHIBIT P11 TRUE COPY OF ORDER IN APPEAL NO.18/IPL/20 DATED 29/05/2020. EXHIBIT P12 TRUE COPY OF THE REVIEW APPLICATION DATED 20/06/2020 SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P13 TRUE COPY OF THE ACKNOWLEDGMENT DATED 24/06/2020. EXHIBIT P14 TRUE COPY OF THE LENIENCY APPLICATION DATED 23/01/2020 SUBMITTED BY THE DRIVER OF CONFISCATED VEHICLE.**