IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 33015 of 2001(E)
1. N.KAMALAM
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.T.V.GEORGE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :14/10/2008
O R D E R
S.SIRI JAGAN, J.
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O.P.Nos.33015/2001 & 27613/2002
==================
Dated this the 14th day of October, 2008
J U D G M E N T
The petitioner in O.P.No.33015/2001 is the registered
owner of a lorry which has been confiscated under the Abkari Act
for using the same for commission of an offence under the Abkari
Act. O.P.No.27613/2002 is filed by an alleged purchaser of the
vehicle from the registered owner. They are challenging Exts.P5,
P6 and P7 orders in O.P.No.33015/2001 which are original,
appellate and revisional orders. The lorry in question was seized
by the Sales Tax authorities on having been found transporting
311 cases of Indian Made Foreign Liquor. A crime was registered
and the vehicle was produced before the JFCM Court No.II,
Muvattupuzha, by the Police. Subsequently it was handed over to
the Assistant Excise Commissioner, Ernakulam, by the Police as
per direction in the judgment dated 29.9.1998 in
O.P.No.18447/98 filed by the registered owner of the vehicle.
The registered owner obtained judgment dated 11.11.1998 in
O.P.No.21103/98 from this Court for the temporary release of the
vehicle on executing a bank guarantee for an amount equal to
o.p.33015/01 & cc. 2
the market value of the vehicle to be assessed by the Mechanical
Engineer (Excise), which was assessed as Rs.1,30,000/-. Since
the facts disclosed commission of an offence punishable under
Section 55(a) of the Abkari Act using the lorry, proceedings were
initiated under Section 65 of the Abkari Act for confiscating the
same. A show cause notice was issued to the registered owner of
the vehicle directing her to show cause as to why the vehicle
should not be confiscated to the Government. Instead of filing a
reply to the same, she requested temporary release of the
vehicle as per direction in O.P.No.21103/1998. Thereafter, the
vehicle was released to the petitioner in O.P.No.27613/2002 on
the strength of the power of attorney executed by the registered
owner on execution of a bank guarantee for Rs.1,30,000/-. Since
the registered owner did not file any objection to the show cause
notice, confiscation proceedings were continued, resulting in
Ext.P5 order of the Assistant Excise Commissioner confiscating
the vehicle. The registered owner of the vehicle filed an appeal
before the Additional Excise Commissioner, Thiruvananthapuram,
which was also rejected by Ext.P6 order. The very same
registered owner filed revision petition before the Excise
o.p.33015/01 & cc. 3
Commissioner Thiruvananthapuram, which was also rejected by
Ext.P7 order. Exts.P5, P6 and P7 orders are under challenge
before me.
2. The contention of the registered owner appears to be
that she had already sold the vehicle to the petitioner in the other
original petition and therefore, she is not responsible for the
illegal transport of the liquor in the lorry. The petitioner in
O.P.No. 27613/2002, who is the alleged purchaser of the vehicle,
raised the contention that the proceedings are bad for
want of notice to him who is the real owner of the vehicle.
According to him, the Act contemplated issue of a notice to the
owner of the vehicle, which has not been done in this case and
therefore, the entire proceedings are vitiated.
3. A counter affidavit has been filed by the 4th respondent
in O.P.No. 33015/2001 supporting the impugned order. A
statement has been filed by the 3rd respondent in O.P.No.
33015/2001 to the effect that even after confiscation
proceedings, the permit of the lorry was continued to be renewed
in the name of the petitioner in O.P.No.33015/2001.
4. I have considered the rival contentions in detail.
o.p.33015/01 & cc. 4
5. First I shall deal with the contentions of the petitioner
in O.P.No. 27613/2002. He challenges the entire proceedings for
want of notice to him in the confiscation proceedings. Therefore,
the question arising for consideration is as to whether he is
entitled to a notice. Admittedly, he is not the registered owner of
the vehicle. The registered owner of the vehicle is the petitioner
in O.P.No.33015/2001. Admittedly she was issued with a show
cause notice. She did not file any reply to the show cause notice.
There is nothing on record to show that the registered owner at
any time intimated the Assistant Excise Commissioner that she
had sold the vehicle to the petitioner in O.P.No. 27613/2002. As
such, there cannot be any duty on the part of the Assistant
Excise Commissioner to issue notice to the petitioner in
O.P.No.27613/2002. In any event, since the registered owner
was given a show cause notice, it was perfectly open to her to
submit before the Assistant Excise Commissioner that the alleged
purchaser of the vehicle also may beard in the matter. She has
not chosen to do so. On the other hand, the registered owner
continued to fight the case on merits by filing an appeal and a
revision. Further, admittedly the registered owner filed two writ
o.p.33015/01 & cc. 5
petitions before this Court in respect of the same subject matter
and even obtained an order directing interim custody of the
vehicle. Pursuant to that order, instead of taking interim custody
by herself, she executed a power of attorney in favour of the
alleged purchaser who took delivery of the vehicle on the
strength of that power of attorney on executing a bank
guarantee. Therefore, the petitioner in O.P.No. 27613/2002 was
perfectly aware of the proceedings before the Assistant Excise
Commissioner. If he had a case that he was the owner of the
vehicle, nothing prevented him from getting himself impleaded
before the Assistant Commissioner in the proceedings seeking to
adduce evidence in support of his case, which he has not chosen
to do. Therefore, at the instance of such a person I am not
inclined to entertain a contention of illegality in the impugned
orders for want of notice to him.
6. Now the only other question is as to whether the
confiscation is proper or not. It cannot now be disputed that the
lorry was transporting 311 cases of Indian made foreign liquor
unauthorizedly, thus committing an offence under the Abkari
Act. Therefore, the vehicle was liable to be confiscated unless
o.p.33015/01 & cc. 6
the owner and the person in charge of the vehicle prove that
he/she had no knowledge of the commission of the offence and
each of them had taken all reasonable and necessary precautions
against illegal use of the vehicle. Under Section 67C(2) of the
Abkari Act the onus of proving that unauthorised transport of
liquor was without knowledge or connivance of the owner
himself, his agent, if any, and the person in charge of the vehicle
and each of them had taken all reasonable and necessary
precautions against such use, is clearly on the petitioner herein.
No attempt whatsoever has been made in that regard by the
petitioner in this original petition. That being so, I do not find any
infirmity whatsoever in the impugned orders. Therefore, there is
no merit in the original petitions and accordingly the same are
dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
o.p.33015/01 & cc. 7
S.SIRI JAGAN, J.
===============
O.P.Nos.33015/2001(E)
& 27613/2002(K)
===============
J U D G M E N T
14th October, 2008
o.p.33015/01 & cc. 8
