IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 10793 of 2007(I)
1. RAJESH,S/O.RAMACHANDRAN,JAYESH BHAVAN,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. ASST.EXCISE COMMISSIONER,OFFICE OF THE
For Petitioner :SRI.N.DHARMADAN (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :22/10/2007
O R D E R
K.R. UDAYABHANU, J.
===================================
W.P.(C).NOS.24298 OF 2006, 10793 OF 2007 &
CONTEMPT CASE (C)NO. 529 OF 2007
=================================
DATED THIS THE 22nd October 2007
JUDGMENT
The petitioner has alleged that he was illegally arrested on
11-2-2006 and his Maruhi Zen car bring No.KL-3N 1283 seized
at 6.45 a.m. from his house when it was parked in the portico
alleging offences under Sections 8(1) and (2) of the Abkari Act
solely on account of his failure to oblige the third respondent,
Sub Inspector of Police, Adoor police station when he demanded
a sum of Rs.50,000/- as bribe. According to him, it is a newly
purchased car and it was never used for transporting of spirit.
The Sub Inspector made a surprise visit to the house of the
petitioner on the particular day and time along with Constables
and seized the car when he was not in the house and used
abusive language and had a scuffle with Sri. Ramachandran,
father of the petitioner. Just before the seizure the petitioner
WPC 24298/06 & CONN.CASES -2-
was arrested from the nearby temple where he was attending the
festival. When the petitioner’s father along with some of the
neighbours went to the police station for release of the car, the
Sub Inspector demanded a sum of Rs.50,000/- as illegal
gratification and threatened that if he did not oblige, an abkari
case will be registered against the petitioner. Ext.P1 is the
complaint filed by the petitioner’s father before the
Superintendent of Police. The residents of the locality has
submitted a mass petition to have an enquiry conducted
through an independent agency or Superintendent of Police,
Human Rights Commission, Director General of Police, Vigilance
Department, Home Secretary etc. The copy of the complaint is
Ext.P2. The petitioner and his father had applied to get release
of the car vide Ext.P3. The Sub Inspector of Police registered
Crime No.104/2006 under Section 8(1) & (2) of the Abkari Act
against the petitioner alleging illicit transportation of 20 litres
spirit. Copy of the F.I.R. is Ext.P2. The petitioner was released
on bail as per the order of this Court vide Exts.P5 and P5(a) (I
find that Ext.P5 is with respect to Crime No.104 of 2006 and
WPC 24298/06 & CONN.CASES -3-
Ext.P5(a) is with respect to Crime No. 103/2006). Exts.P6 and P7
are said to be photocopies of the covers in which he had
allegedly sent notice to the witnesses in the crime case claiming
compensation and the same were returned with the endorsement
“not known – unclaimed returned”. It is pointed out that the Sub
Inspector/3rd respondent submitted a report to the Judicial First
Class Magistrate, Adoor stating that the petitioner is the 4th
accused in other pending cases, i.e. Crime Nos.101/06, 102/06
and 103/06. Exts.P8, P8(a) and P8(b) are the above reports.
According to the petitioner, he was deliberately harassed and he
has not involved in the other offences. It is also alleged that
the Sub Inspector of Police also arrested and assaulted the elder
brother of the petitioner, who reported to the Vigilance Dy.S.P.
about the demand made by the Sub Inspector for a sum of
Rs.50,000/-. Ext.P9 and P10 are the complaints filed by the elder
brother of the petitioner to the Dy.S.P. Adoor, Dy.S.P. Vigilance
respectively with respect to the demands for bribe by the
subordinates of the third respondent. According to him, all the
cases are set up on account of personal animosity of the third
WPC 24298/06 & CONN.CASES -4-
respondent and due to the failure of the petitioner to pay a sum
of Rs.50,000/- as demanded by the third respondent. Witnesses
cited are fictitious persons. He has sought for a direction to
respondents 1,2 and 4, i.e. the Home Secretary, Assistant Excise
commissioner, Pathanamthita and Deputy Superintendent of
Police (Vigilance), Pathanamthitta to dispose of Exts.P1 to P3 and
P9 & P10 complaints and representations filed by him and others
and also for a independent enquiry by the Vigilance Department
against the third respondent/Sub Inspector and for a direction to
release Maruthi Zen car on personal bond and also to quash
Ext.P4 F.I.R. in Crime No.104/2006 and Exts.P8, P8(a) and P8(b)
reports, i.e. the reports implicating the petitioner in Crime
Nos.101/06,102/06 and 103/06. The petitioner has also produced
Exts.P11, P11(a) to P11(c), i.e. the police reports dated 7-3-06
which was corrected as 8-3-06 incorporating the petitioner as an
additional accused in three other cases, i.e. 101/06, 102/06 &
103/06 which according to him have been submitted in order to
get his pre-trial detention extended. As per the above reports in
the above crimes the petitioner has been implicated as 4th
WPC 24298/06 & CONN.CASES -5-
accused. The allegation in Crime No.101/2006 is that 1.5 litres
of illicit arrack in a bottle was seized from accused 1 and 2
while they were travelling in a motor cycle bearing No. KL-03 F
3866 at 11 p.m. on 10-2-2006. The report is that the above
illicit liquor was entrusted by accused 3 and 4 to the 2nd accused
for sale. In Crime No.102/06 the allegation is that 10 litres of
illicit arrack kept for sale in the house of the 1st accused was
seized at 2.30 a.m. on 11-2-2006. The contraband is alleged to
have been entrusted to the 1st accused by accused 4 and 5. In
Crime No.103/06, 10 litres of illicit arrack kept for sale in the
house of the 1st accused was seized at 3.30 a.m. on 11-2-2006
which was allegedly entrusted to the 1st accused by accused 4
and 5. It is alleged that in three reports, i.e. Exts.P11, P11(a)
and P11(b), the date mentioned as 7-3-06 is corrected as 8-3-06.
On 15-3-2006 the Sub Inspector of Police again filed another
report Ext.P11(c) also with the same objective alleging theft of
another Maruthi car vide crime No.1192/05. The report is dated
15-3-06 wherein the offences alleged are under Sections 379,
411, 201 read with section 34 I.P.C. wherein also the petitioner
WPC 24298/06 & CONN.CASES -6-
has been incorporated as the 4th accused. According to the
petitioner, the above charges have been filed to prevent the
petitioner from being released on bail as per the order of this
Court. The allegation in Ext.P11(c) is that the petitioner
purchased Maruthi car KL-2 R 2122 with knowledge that the
same is a stolen car. According to him he has not purchased any
such car from accused 1 and 2. According to him, as a
consequence of the above reports, he was under custody upto
30-3-2006.
2. The petitioner has also filed an application seeking to
amend the writ petition in order to challenge Ext.P12 order issued
by the 2nd respondent, i.e. the Assistant Excise Commissioner,
Pathanamthitta issuing notice of confiscation under Section 67 C
of the Abkari Act. It is pointed out that this Court as per order in
I.A.No.14029/2006 issued a direction for immediate release of
Maruthi Zen car bearing registration No.KL-3N 1283 and
subsequently this Court as per order dated 6-11-2006 initiated
suo motu contempt proceedings against respondents 2 and 3
for violation of the order of this Court dated 29-9-2006 to
WPC 24298/06 & CONN.CASES -7-
release the car. It is during the pendency of the above
proceedings that Ext.P12 notice dated 1-3-2007 has been issued
by the 2nd respondent mentioning that the car involved in
Crime No.104/06 contained more than 94% of ethyl alcohol and
hence is liable to be confiscated under Section 67C of the Abkari
Act. According to the petitioner, Ext.P12 notice is issued as a
retaliatory measure to harass him. The petitioner has also
sought for a writ or direction to quash Ext.P12 and further
proceedings contemplated with respect to the car.
3. The 2nd respondent, Assistant Commissioner has filed a
counter to the amendment pointing out that Ext.P12 was issued
bona fide and that the petitioner has got sufficient opportunity
to submit his explanation before him as reply to the show cause
notice and that confiscation order will be passed only after
verifying the explanations and relevant documents. It is
submitted that no reply or documents were produced by the
petitioner.
4. The 4th petitioner, Dy.S.P. Vigilance & Anti Corruption
Bureau, Pathanamthitta has filed an affidavit stating that Sri.
WPC 24298/06 & CONN.CASES -8-
Jayesh, the brother of the petitioner in the writ petition had
came to the office of the Vigilance & Anti Corruption Bureau
(VACB), Pathanamthitta on 23-3-2006 and preferred an oral
complaint and based on the same Vigilance Case,
V.C.No.1/06/PTA under Section 7, 13(2) read with Section 13(1)
(d) of the P.C.Act was registered on 23-3-2006. The allegation of
Sri Jayesh was that himself and his friend were taken into
custody at 6 p.m. on 12-2-2006 near Adoor by Sri. Girish
P.Saradhy, former S.I. of Police Adoor in connection with the
detection of a stolen Maruthi car bearing registration No. KL-02
L 1638 in which Crime No.108/06 under Section 102Cr.P.C. was
registered by Adoor police and that Sri. Jayesh and his friend
were released in the night of 12-2-2006. It is alleged that the
G.D.charge Head Constable Sri.L.Badarukutty, HCN 1193 of
Adoor police station collected mobile phone of Sri. Jayesh at the
time of releasing him and that Sri. Badarukutty and Sri Sabu
Henry PCN 1059 of Adoor police station has collected bribe on
12-2-2006 at the time of releasing them and at the time Sri.
L.Badarukutty, HCN 1193 again demanded Rs.5000/- on
WPC 24298/06 & CONN.CASES -9-
21-3-2006 and later reduced the bribe amount to Rs.1000/- and
he agreed to accept the bribe money on 23-3-2006 at Mariya
Hospital, Adoor for returning the mobile phone to Jayesh. On
registration of V.C.No.1/06/PTA, a trap was arranged by the
Deputy Superintendent of Police, VACB with the assistance of
two gazetted officers at Mariya hospital, Adoor on 23-3-2006.
Sri. Badarukutty came to Mariya Hospital, Adoor on 23-3-2006
and talked with Sri. Jayesh and left the hospital without
accepting the bribe money of Rs.1000/-. Since the trap could
not materialize, the VACB party returned. Sri. Badarukutty,
HCN 1193 returned the mobile phone to Jayesh as per the
instruction of Girish P. Saradhy, S.I. of police. The trap case
No.1/06/PTA is under investigation. After filing of the trap case
on 24-4-2006 Sri Jayesh came to VACB police station,
Pathanamthitta and presented a petition, i.e. Ext.P10 raising
allegations against the present Sub Inspector of Adoor police
station/3rd respondent alleging that on account of non-payment of
bribe of Rs.50,000/-, the third respondent had booked a false
Abkari Case No.104/06 of Adoor police station on 12-2-2006
WPC 24298/06 & CONN.CASES -10-
against Sri Rajesh, the brother of Jayesh alleging possession of
35 litres of illicit arrack in the Maruthi Zen car being registration
No. KL 3 N 1283. The F.I. statement in V.C.1/06 did not contain
any allegations against the 3rd respondent. The allegations in
V.C.1/06/PTA was against Sri. Badarukutty and Sri.Sabu Henry
in connection with the seizure of a stolen Maruthi car No.KL 2 N
1638 and Crime No. 108/06 was registered on 12-2-2006. It
is submitted that the additional allegations raised by Jayesh in
Ext.P10 related to Abkari case No.102/06. It is stated that the
above case is an Abkari case in which the VACB is not competent
to investigate. It is submitted during the course of investigation
on V.C.1/06/PTA, the third respondent was questioned and that
he denied the allegations. It is also pointed out that Crime
No.104/06 of Adoor police station was also charge sheeted before
the court.
5. The petitioner has filed a reply affidavit alleging that the
statements in the counter affidavit are false with respect to the
complaint made in Ext.P2 which is the complaint by the local
residents. According to him, 4th respondent does did conduct
WPC 24298/06 & CONN.CASES -11-
any enquiry with respect to the above complaint. Ext.P2 has been
addressed to the Director General of Police, Home Secretary,
and Human Rights Commission etc. Postal receipts have also
produced as Ext.P13. He has sought for an independent enquiry
vide I.A.No.14029/07. It is also alleged that in Ext.P1 the
allegations that the 3rd respondent and Sri. Badarukutty, HCN
and Sabu Henry and Raghu PCs. are in possession of
disproportionate wealth far in excess of their income. The above
allegation can be enquired into by the vigilance department. He
has also produced Ext.P4 of the Vigilance Manual. The allegation
of demand on bribe of Rs.50,000/-by the 3rd respondent can be
ascertained by holding enquiry in the mass petition of residents
in the locality. Affidaivt of one of the persons is produced as
Ext.P15 alleging that the Vigilance has not questioned anybody
in this regard.
C.O.C.No.529/2007:
6. The petitioner has sought for invoking Section 2(b) read
with Section 12 and 14 of the Contempt of Courts Act 1971
against the respondents as Ext.P12 notice has been issued by
WPC 24298/06 & CONN.CASES -12-
the first respondent/Assistant Excise Commissioner seeking to
invoke Section 67 C of the Abkari Act, i.e. seeking to show cause
as to why the vehicle should not be confiscated. It is his
contention that respondents have committed contempt as
proceedings in W.P.(C) No.24298/2006 seeking to quash the
proceedings initiated under Sections 8(1) and 8(2) of the Abkari
Act initiated against him and also seeking to order an
investigation by the VACB and also interim order of this Court to
release the car and the suo motu contempt proceedings initiated
by this Court was pending.
7. The first respondent/Assistant Excise Commissioner has
filed a counter. It is admitted that he has issued Ext.P12 notice
dated 1-3-2007 under Section 67 C of the Abkari Act. It is
submitted that vide Crime No.104/2006 of Adoor police station
the seizure of the vehicle was reported to him being the
authorised officer by the 2nd respondent herein, i.e. the Sub
Inspector of Police. It is pointed out that Section 67 B of the
Abkari Act mandates the officer seizing the vehicle, i.e. used for
committing the offence under the Abkari Act, without
WPC 24298/06 & CONN.CASES -13-
unreasonable delay to produce the same before the officer
authorised by the Government in this behalf. It is pointed out
that the Sub Inspector has reported the seizure of the vehicle to
him. It is pointed out that he has received chemical analysis
report which would show that the material objects seized from
the car is spirit. It was in the above circumstances notice under
Section 67 C of the Abkari Act was issued. It is pointed out that
no final order has been passed in the above matter. It is
submitted that no orders of the court has been flouted and that
there was no intention to do so and that he has not disobeyed
the orders of this Court.
8. The petitioner has filed a reply affidavit alleging that
Ext.P12 has been issued on 1-3-2007 within a short time of the
interim order dated 29-9-2006 directing him to release the
vehicle and that the applications filed by him before the Human
Rights Commission, Vigilance Department, Home Department and
proceedings initiated in W.P.(C)No. 24298/2006 and
C.C.C.No.1460/2006 were pending. It is alleged that the
Assistant Excise Commissioner/1st respondent is conducting
WPC 24298/06 & CONN.CASES -14-
parallel proceedings which amounted to contempt of court. It is
also pointed out that he had refused to release the car till
17-10-2007. According to him, the sample sent for analysis was
not recovered from his car. It is pointed out that the respondent
ought to have obtained permission from the court to initiate
confiscation proceedings and that the steps initiated are just
vindicative.
W.P.(C)NO. 10793/2007
9. The petitioner has sought for getting quashed
Ext.P6/P12 notice issued by the 2nd respondent/Assistant Excise
Commissioner initiating steps to confiscate car KL-3 N 1283
involved alleging that Ext.P6 has been issued only as a
vindicative measure and that no incriminating articles have
been recovered from his car on 2-11-2006 and that the court
had ordered to release of the car and the contempt proceedings
were pending and that the witnesses cited in the case are
fictitious persons and that the actions of the respondent
amounted to abuse of process of the court and that entire
charges including in the F.I.R. are false and fabricated as he
WPC 24298/06 & CONN.CASES -15-
did not heed to his demand to pay Rs.50,000/-as bribe.
10. I find that as per order dated 25-5-2007 in C.C.C.No.
1460/2006, suo motu contempt proceedings initiated by this
Court. The further proceedings were closed on the respondents
tendering an unconditional apology and with a severe reprimand
as it appeared that the respondents deliberately delayed the
compliance of the interim order of this Court to release car
seized by the Sub Inspector of Police, Adoor. I find that the
proceedings initiated in the above suo motu contempt case would
not amount to a reflection on the merits of the case. The
petitioner has produced the R.C. of the car and further detention
of the car would not have served any purpose in the
circumstances of the case and it was ordered to be released on
executing bond for Rs.50,000/- with two solvent sureties for a
like sum and on condition that he shall produce the car before
the authorities whenever directed. Regarding the merits of the
case, it would not be possible for this Court to enter into a
finding as the same can be arrived at only after evidence is
adduced.
WPC 24298/06 & CONN.CASES -16-
11. The allegation of the petitioners that the car has been
seized and that case has been fabricated only on account of the
enmity on the part of the Sub Inspector of Police as the
petitioner did not oblige to his demand for giving him an illegal
gratification of Rs.50,000/-. Ext.P1 is the petition filed by the
father of the petitioner before the Superintendent of Police raising
the above allegations and the same is dated 21-2-2006 as per
the date mentioned in Ext.P1 in W.P.(C)No.24298/2006. The
date of the detection of the offence as per the F.I.R. is dated
11-2-2006. Ext.P2, the complaint by the local residents is dated
6-4-2006. Ext.P9, the compliant filed by the elder brother of the
petitioner against the Head Constable and the police constable,
i.e. Badarukutty and Sabu Henry is dated 3-4-2006. Ext.P10, the
complaint by the elder brother of the petitioner to the Dy.S.P.,
VACB, Pathanamthitta contains no date. The respondents in the
above complaint are the Sub Inspector of Police, Head Constable
and the Police Constable. All the above complaints have been
admittedly submitted before the authorities subsequent to the
date of Crime No. 104/2006 registered against the petitioner. It
WPC 24298/06 & CONN.CASES -17-
is also seen from the counter affidavit filed by the 4th respondent,
Dy.S.P., VACB, Pathanamthitta that on the basis of the oral
complaint of the elder brother of the petitioner on 23-3-2006 the
Vigilance registered Case No. 1/06/PTA under various sections of
the Prevention of Corruption Act and a trap was laid for the Head
Constable who allegedly sought for a bribe of Rs.5000/-, but the
trap did not succeed and the matter is pending enquiry and in
the matter, the Sub Inspector was also questioned. It is
submitted that there was no allegation of demand of bribe
against the Sub Inspector then. It is also stated that the Sub
Inspector has registered Crime No.104/06 under the Abkari Act
and hence the Vigilance authorities are not competent to
investigate the particular case. I find that the above statement
of 4th respondent cannot be said to be proper. The allegation is
that he demanded bribe and the investigation with respect to the
same would not amount to investigating the abkari offence.
12. I find that the allegation sought to be investigated and
that has been raised in the petition filed by the local residents
which has been submitted before the various authorities also
WPC 24298/06 & CONN.CASES -18-
relates to disproportionate assets owned by the Sub Inspector,
Head Constable and two police constables, but no prima facie
evidence in this regard has been submitted.
13. It has also to be noted that as per Exts.P11, P11(a),
P11(b) and P11(c) produced in W.P.(C) No.24298/ 2006, the
petitioner has been implicated as an additional accused in Crime
Nos.101/06, 102/06 103/06 and 1192/05 in the month of March
2006, i.e. subsequent to the registration of the instant crime
No.104/06 vide Exts.P11, P11(a) to P11(c) and the above are
dated subsequent to Ext.P1 complaint filed by the father of the
petitioner before the Superintendent of Police, Pathanamthitta
against the Sub Inspector/3rd respondent alleging that he
manhandled him and arrested the petitioner and allegedly
demanded bribe. It has also to be noted that vide Ext.P11(c)
the petitioner has been implicated in a case registered on 13-12-
2005 against the certain other persons for the offences under
Sections 379, 411, 201 read with Section 34 I.P.C. alleging that
he purchased a stolen Maruthi 800 car. The fact that in Crime
Nos.101/06, 102/06, 103/06 and Crime No.1192/05, the accused
WPC 24298/06 & CONN.CASES -19-
has been implicated, soon after the allegations raised against the
Sub Inspector by the father of the petitioner supports the case of
the petitioner to a certain extent, at least as to the case that in
the subsequent cases he has been implicated falsely and as a
retaliatory measure.
14. Counsel for the petitioner has relied on the decisions in
E.T. Sunup v. C.A.N.S.S. Employees Association, AIR 2005
S.C.115; Govind Sahai v. State of U.P., A.I.R.1968 S.C.1513
and the K.J. Iyer’s Commentary in Contempt of Court Legislature,
pp 338, 339 (9th edn) 1998 to stress that when a matter is
pending decision in a court of law, a parallel enquiry set up by
anyone to cover the same ground would amount to contempt
of court. I find that the facts situation in the decisions cited
are not in pare materia with the situation herein. I find that the
case set up for initiating contempt of court proceedings and for
getting quashed notice issued under Section 67 C of the Abkari
Act cannot be allowed at this stage. The proceedings for
confiscation contemplated under the Abkari Act include also the
opportunity to take up the matter in appeal and revision. All
WPC 24298/06 & CONN.CASES -20-
the same, I find that the allegations raised by the petitioner
calls for an enquiry . Hence, the Superintendent of Police,
Pathanamthitta is hereby directed to cause an enquiry conducted
in the matter by an officer not below the rank of Deputy
Superintendent of Police a the earliest. It would be appropriate
that the 2nd respondent/Assistant Excise Commissioner who had
been implicated in the contempt of court proceedings etc. is not
the person to adjudicate the confiscation proceedings. Some
other officer may be authorised to hold the confiscation
proceedings initiated, if it is decided to be proceeded with.
Enquiry by the officer entrusted by the Superintendent of Police,
Pathanamthitta shall be completed at the earliest. W.P.(C)
No.24298/2006 is disposed of accordingly.
15. C.O.C.No.529/2007 and W.P.(C)No.10793/2007 are
dismissed.
Government Pleader will communicate the order of this
Court to the concerned authorities for compliance at the earliest.
ks. K.R.UDAYABHANU, JUDGE WPC 24298/06 & CONN.CASES -21- ks.