IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10332 of 2007(E)
1. T.SUMITHA, AGED 27 YEARS,
... Petitioner
Vs
1. THE ASSISTANT EXCISE COMMISSIONER,
... Respondent
2. THE ADDITIONAL EXCISE COMMISSIONER,
3. THE COMMISSIONER OF EXCISE,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :15/10/2008
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No.10332 OF 2007
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Dated this the 15th day of October, 2008
JUDGMENT
The petitioner is the owner of an autorickshaw. The
autorickshaw was seized on allegations of commission of an
abkari offence using that vehicle. Confiscation proceedings were
initiated, which resulted in Ext.P2 order confiscating the vehicle
to the Government. The petitioner approached this Court by
filing a writ petition, in which the appellate authority was directed
to dispose of the appeal filed by the petitioner. Pursuant thereto,
the appellate authority passed Ext.P5 order, whereby the
petitioner’s appeal was rejected and the confiscation was
confirmed with some modification to the effect that the vehicle
may be returned on payment of the market value of the vehicle.
The Excise Commissioner passed a further proceedings, Ext.P6
rejecting a petition dated 8.1.2007 filed by the petitioner in this
regard. There is a dispute as to whether the petitioner had filed
an application dated, 8.1.2007 or not. According to the
petitioner, the petitioner filed Ext.P7 revision dated 10.10.06. I
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need not consider that dispute in so far as the Supreme Court
has finally held that no revision is maintainable against the
appellate order under the Abkari Act in the decision State of
Kerala V. Avinasiappan [2004(1) KLT 867]. The incident,
which led to the confiscation proceedings happened as
follows:-
2. The vehicle was apprehended along with 2.5 litres
of arrack at a time when three persons and the driver were
allegedly consuming liquor inside the autorickshaw. Since
possession of arrack is prohibited under the Abkari Act and
consumption of liquor in a public vehicle is an offence under
the Abkari Act, confiscation proceedings were initiated which
resulted in the impugned orders.
3. The petitioner’s contention is that the petitioner had
specifically contended that she had no knowledge about the
use of the vehicle for commission of the offence alleged and
she had taken all precautions against such illegal use of the
vehicle and in such circumstances, the confiscation
proceedings are unsustainable.
4. The respondents have filed a counter affidavit
supporting the impugned orders.
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5. It is not disputed before me that the autorickshaw
contained 2.5 litres of arrack and that three persons were
consuming liquor in the autorickshaw. Of course, originally,
the allegation was that the driver also consumed liquor, but in
the criminal proceedings, the driver had been acquitted and
the other three persons were convicted. That being so, it
cannot now be disputed that the autorickshaw in question had
been used in the commission of an abkari offence. In such
circumstances, the confiscation proceedings can be challenged
by the petitioner only by proving the ingredients of Section
67C(2) of the Abkari Act. Under Section 67C(2) in order to
avoid the confiscation proceedings, the petitioner must prove
that the transportation of the arrack and consumption of the
same in the autorickshaw were without the knowledge or
connivance of the owner or her agent and the person in charge
of the vehicle and that each of them had taken all reasonable
and necessary precautions against such illegal use. The onus
of proving the same is squarely on the petitioner. So the
minimum the petitioner had to do, to avoid the confiscation
proceedings, was to prove the ingredients of Section 67C(2) of
the Abkari Act. In this case, apart from filing an objection, the
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petitioner had not taken any steps in that regard. She did not
even offer to give oral evidence in support of her case that she
had no knowledge or connivance in the commission of the
offence and that she had taken all necessary precautions
against such illegal use of the vehicle. Without proving the
same, the petitioner cannot succeed in the challenge against
the impugned orders. Admittedly, apart from filing the
objections, no proof whatsoever was offered by the petitioner
in this regard. That being so, the onus cast upon the
petitioner under Section 67C(2) of the Abkari Act has not been
discharged. Without discharging the same, the petitioner
cannot successfully challenge the impugned orders.
Therefore, I do not find any merit in this writ petition and
accordingly the same is dismissed.
S. SIRI JAGAN, JUDGE
Acd
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