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N.Kamalam vs State Of Kerala on 14 October, 2008

Kerala High Court
N.Kamalam vs State Of Kerala on 14 October, 2008
       

  

  

 
 
  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.

                  ==================

               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

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