Partly allowed

The State of Kerala v. Thomsi.K.a.

Kerala HC2 Aug 2022WA/907/2022

Case brief

AI extract

What is this about?

This writ appeal challenged an order directing police and excise authorities to release seized spirit to a transporter. The High Court declined to decide the seizure's legality under the Abkari Act, instead ordering immediate measurement of the spirit by the Deputy Commissioner of Excise in the presence of relevant parties, followed by its handover to the distillery.

What did the court decide?

The seized spirit is to be measured immediately by the Deputy Commissioner of Excise in the presence of the transporter and distillery representatives and then handed over to the distillery within 10

The State of Kerala Vs Thomsi.K.a. — Cheque Dishonour | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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TUESDAY, THE 2^ND DAY OF AUGUST 2022 / 11TH SRAVANA, 1944

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WA NO. 907 OF 2022

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AGAINST THE JUDGMENT DATED 14.02.2022 IN WP(CRL.)NO.464/2021

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OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS 1 TO 3 IN W.P(CRL.):

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES (A) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001

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2 THE STATION HOUSE OFFICER PULIKEEZHU POLICE STATION, THIRUVALLA, PATHANAMTHITTA DISTRICT - 689104

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3 THE DEPUTY COMMISSIONER OF THE EXCISE EXCISE DIVISION OFFICE, PATHANAMTHITTA - 689645

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BY ADVS.

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SAIGI JACOB PALATTY, SR.GOVERNMENT PLEADER

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RESPONDENTS/PETITIONER & 4TH RESPONDENT IN W.P(CRL.):

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1 THOMSI.K.A. S/O ANTONY, KALOOR HOUSE, MADAPLATHURUTHU, MOOTHAKUNNAM.P.O, NORTH PARAVUR, ERNAKULAM - 683516

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2 THE TRAVANCORE SUGARS & CHEMICALS LTD. VALANJAVATTOM.P.O, THIRUVALLA, PATHANAMTHITA BY ITS MANAGING DIRECTOR, PIN - 689104

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BY ADVS. M.G.KARTHIKEYAN M.GOPIKRISHNAN NAMBIAR C.C.THOMAS (SR.) K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2022, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.

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

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W.A No.907 of 2022

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[ arising out of the impugned judgment dated 14.02.2022 in W.P(Crl.) No.464/2021 ]

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========================================= Dated this the 02^nd day of August, 2022

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JUDGMENT

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Alexander Thomas, J.

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The above writ appeal arises out of the impugned judgment rendered by the learned Single Judge on 14.02.2022 disposing the instant Writ Petition (Criminal), W.P(Crl.) No.464/2021.

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The case broadly set up in the above writ proceedings is as follows :

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That the petitioner is engaged in the business of transportation, having its operation in various parts of the country. The petitioner also owns various lorries and other vehicles used for the purpose of transportations and he has also employed various employees, including drivers for the smooth conduct of the business. That the petitioner, being a transporter, had entered into an agreement with the 4^th respondent, Travancore Sugars & Chemicals Ltd., Thiruvalla, for the purpose of transporting spirit from various states to the Distillery of Travancore Sugars & Chemicals Ltd., at Pulikeezhu, Thiruvalla. That the petitioner

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W.A No.907 of 2022

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was transporting spirit to the 4^th respondent after obtaining all the legal requirements. On 25.06.2021, the petitioner purchased, for and on behalf of the 4^th respondent, 80000 litres of spirit and transported the same in two vehicles. The tanker lorries bearing Reg.Nos.KL-42/S-6822 and KL42/S-9322, were loaded with 40000 each litres of spirit, which is evident from Exts.P4 and P4(a). That the petitioner was issued with a permit to import spirit to the State of Kerala by the Excise Commissioner, Kerala. The petitioner was also issued with an export permit of spirit from the Excise Commissioner, Madhya Pradesh. The spirit was transported from Associated Alcohols and Breweries Ltd., Khodigram, Madhya Pradesh and the same is transported to Travancore Sugars & Chemicals Ltd., at Pulikkeezhu, Thiruvalla. While so, on 30.06.2021 at about 12.15 p.m., the abovesaid two tanker lorries were intercepted by the police party, when it entered inside the compound of the 4^th respondent and found that a total quantity of 20,386 litres of spirit was stolen from the tanker lorries. 12,687 litres of spirit was found lost from vehicle bearing Reg.No. KL-42/S-6822 and 7699 litres of spirit was found lost from vehicle bearing Reg. No.KL-42/S-9322. When the drivers of the lorries were questioned, it is revealed that the said quantity of spirit was sold by them to the 7^th accused at Senthua, Madhya Pradesh with the knowledge of

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W.A No.907 of 2022

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accused Nos.3 to 6, the employees of the 4^th respondent distillery. It resulted in a loss to the tune of Rs.12 lakhs. A case was registered in the above regard as Crime No.571/2021 of Pulikkeezhu Police Station alleging offences under Secs.379 r.w Section 34 of the IPC and seven named persons are arrayed as the accused. During the course of investigation, Sec.55(a) of the Abkari Act was also incorporated. That there is absolutely no allegation against the petitioner herein for the sale of spirit by accused Nos.1 & 2, with the knowledge and consent of accused Nos.3 to 6, to the 7^th accused. The vehicles and the spirit contained in the vehicles were produced before the JFCM, Thiruvalla. That the petitioner being the transporter and the person who remitted the price of the spirit, filed Ext.P5 petition for a permission to unload the spirit contained in the tanker lorries so as to enable him to deliver the same in the 4^th respondent distillery. The learned Magistrate dismissed the said petition without stating any reasons vide Ext.P6 order.

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It is in the light of these averments and contentions that, the petitioner has filed the instant Writ Petition (Crl.) with the following prayers :

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“i) issue a writ of Certiorari or any other appropriate writ, to call for records leading to the seizure of spirit in the containers of the lorries bearing Reg.Nos.KL-42/S-6822 and KL-42/S-9322 in crime No.571/2021 of Pulikeezhu Police Station by the respondent No.2 and set aside the same;

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ii) declare that the spirit contained in the containers of the lorries bearing

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W.A No.907 of 2022

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Reg.Nos.KL-42/S-6822 and KL-42/S-9322 seized in crime No.571/2021 of Pulikeezhu Police Station is not liable to be seized under section 65 of the Abkari Act;

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iii) Issue a writ of mandamus or other appropriate writ, order or direction directing the respondent Nos.2 and 3 to release the spirit seized by the respondent No.2 in crime No.571/2021 of Pulikeezhu Police Station to the petitioner so as to enable him to deliver the same in the 4^th respondent distillery; and

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iv) grant such other relief as this honourable Court may deem fit to grant in the facts and circumstances of the case.”

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The learned Single Judge, after hearing both sides has rendered the impugned judgment on 14.02.2022, finally disposing of the instant Writ Petition (Crl.), with the direction that respondents 2 & 3 therein, State of Kerala and the SHO concerned, who are the 1^st & 2^nd appellants herein, shall release the spirit seized in Crime No.571/2021 of Pulikkeezhu Police Station to the writ petitioner, so as to enable him to deliver the same to the 4^th respondent in the W.P(Crl.) [M/s Travancore Sugars & Chemicals Ltd. - R2 in the W.A] and to get back its value already paid by him, etc. It is the abovesaid judgment of the learned Single Judge, that is under challenge in the instant intra-court appeal, filed at the instance of respondents 1 to 3 in the above W.P(Crl.).

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Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the appellants herein/respondents 1 to 3 in the W.P(Crl.), Sri.C.C.Thomas, learned Senior Counsel instructed and assisted by Sri.M.G.Karthikeyan, learned counsel appearing for R1 herein/writ

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W.A No.907 of 2022

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petitioner and Sri.M.Gopikrishnan Nambiar, learned Standing Counsel appearing for R2 herein [R4 in the W.P(Crl.)].

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The nature of the factual allegations in the instant Crime No.571/2021 of Pulikkeezhu Police Station, Pathanamthitta District, as contained in paras 3 & 4 of this writ appeal, read as follows :

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“3. The prosecution case is that, based on reliable secret Information that spirit (ENA) which was transported in tanker lorries from Associates Alcohol and Breweries Ltd. to Travancore Sugars and Chemicals Ltd has been stolen and sold in transit Sri.T Anikumar, Circle Inspector of Excise, State Excise Enforcement Squad followed the tanker lorries bearing registration numbers KL 42 S 6822, KL 42 S 9322 and KL 42 S 1422 and when vehicles entered into the premises of Travancore Sugars and Chemicals Ltd. on 30.06.2021, Sri.T.Anikumar and party along with Sri Vinod G. Krishna, Circle Inspector of Excise, TSC Ltd. Thiruvalla jointly verified the records obtained from the vehicle drivers and found that the above tankers are carrying 40,000 Ltrs., 40,000 Ltrs and 35,000 Ltrs of ENA respectively based on valid import permits issued by the Excise Commissioner, Kerala, for transporting the said quantities of ENA from Associated Alcohols and Breweries Ltd. Khodigram, Madyapradhesh to Travancore Sugars & Chemicals Ltd. Thiruvalla. After verifying the records, the tanker lorries were examined and found that an amount of Rs.6,78,000/- kept in the tanker lorry bearing Reg No. KL 42 S 6822, and Rs.3,50,000/- kept in the tanker lorry bearing Reg No.KL 42 S 9322:

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4. It is submitted that on interrogation Sri.Nandakumar, driver of tanker lorry bearing Reg. No.KL 42 S 6822 and Sri. Sijo Thomas, driver of tanker lorry bearing Reg No.KL 42 S 9322 confessed that each had stolen about 12000 Ltrs and 7500 Ltrs from their respective tanker at Senthuva m Madhyapradesh and sold to one Mr.Abu and the money kept in the vehicles are the money received from the sale of spirit. They also revealed that the illegal transaction was carried out as per the direction of Sri.Arunkumar, employee of Travancore Sugars & Chemicals Ltd. Thiruvalla and the money kept is to handover to him. Sri.Arunkumar, Warehouse-inCharge of TSC Ltd. was also interrogated by the excise officials and he admitted that he gave direction to the above lorry drivers to sell the spirit with the clear knowledge of Sri. Alex P.Abraham, General Manager, TSC Ltd., Sri. Hashim, Personal Manager, TSC Ltd. and Smt. Megha Murali, Production Manager, TSC Ltd. The loss of spirit in the above tanker lorries has been assessed by the Legal Metrology Inspector, Thiruvalla by weighing these Tankers in a computerized

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W.A No.907 of 2022

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weighing bridge and reported that 12687 Ltrs and 7699 Ltrs of spirit has been lost from KL 42 S 6822 and KL 42 S 9322 tanker lorries respectively. The Circle Inspector of Excise, Travancore Sugars & Chemical Ltd., Thiruvalla submitted a report regarding the loss of spirit due to theft along with KL 42 S 9322 tanker lorries with spirit, original import permits, Indian currency notes worth Rs 10,28,000/-, statements of culprits and produced Sri. Nandakumar (driver of KL 42 S 6822). Sri. Sijo Thomas (Driver of KL 42 S 9322) and Sri.Arunkumar, warehouse keeper in TSC Ltd. before the SHO, Pulikeezhu Police Station on the same day, Pulikkeezhu police registered FIR No. 571/2021 on 01.07 2021 U/s 379, 34 of IPC against Sri. Nandakumar (A1), Sri Sijo Thomas (A2), Sri Arunkumar (A3), Sri.Alex P Abraham, General Manager, TSC Ltd (A4), Sri.Hashim. Personal Manager TSC Ltd.(A5), Smt.Megha Murali. Production Manager, TSC Ltd.(A6) and Abu, residing at Baitul, Madhyapradhesh (A7) as accused and arrested A1 to A3. Subsequently, on investigation Section 120 B of IPC and 55 (a) of Abkari Act were added (incorporated) in this case and the Investigation.”

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After seizure of the two transporting lorries and the remaining spirit found therein, the Investigating Officer in the above crime, has filed Ext.P-6 report dated 02.09.2021 before the Judicial First Class Magistrate's Court, Thiruvalla. The last paragraph of Ext.P-6 report dated 02.09.2021 filed by the Investigating Agency, reads as follows :

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"മദ�പ�ദ�ശ �സ�സ�നത�� ബറ�വ�എന�സലത�ള Associates Alcohol & Breweries Ltd (AABL) എന�സ��നത�ൽ�ന�ന� ന�യമ�ന�സരണ�� ദ�രള�ഗവ. സ��നമ�യ Travancore Sugars & Chemicals Ltd. Pulikeezhu എന�സ��നത�ദലക KL-42-S-9322, KL-42-S-6822 എനന�ട�ങർ�ദല�റ��ള�ല�യ�� ക��ണ�വന� �ENA ഹർജ�� ക�ക വ�ട നൽ��ക,� �തന�,�ട� ക-��.ട� എ� � സസസ ��മനഷണറ�കട� ദമൽദന�ടത�ൽ� അളന� ,�ടക3ട�ത�� ദ�രള� ഗവ. സ��നമ�യ� Travancore Sugars & Chemicals Ltd. Pulikeezhu എന�സ��നത�ന � ന�യമ�ന�സരണ� വ�ട നൽ��ന,�ന ന�യമ,ടസങൾ� ഇല�കയന� ദബ�ധ�3�ച�ക��ള�ന�� .”

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The contents of the abovesaid Ext.P-6 report has already been referred to in para.6 of the impugned judgment rendered by the learned

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W.A No.907 of 2022

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Single Judge in the instant Writ Petition (Crl.).

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After hearing both sides, we are of the view that there is no necessity for us to enter into the merits of the controversy in any manner, more particularly, as to whether the subject lorries and the spirit found therein, are liable for seizure, in terms of Sec.65 of the Kerala Abkari Act, etc. This is all the more so, since the matter is in the crime stage and there is no necessity for the writ court to enter into those aspects of the matter. We are of the firm view that the controversy now posed before us, could be resolved, going by the admitted stand of the Investigating Agency, as contained in the last paragraph of Ext.P-6, inasmuch as the Investigating Agency themselves have voluntarily taken the stand that, though they are not willing to hand over the custody of the seized spirit to the writ petitioner-Contractor, they are willing to ensure that the Deputy Commissioner of Excise concerned may measure the exact volume of the seized spirit now kept in the lorries and after ascertaining the proper measurement, the seized spirit shall be handed over by the Investigating Officer to the respondent-Travancore Sugars & Chemicals Ltd., Pulikkeezhu. All what we would further add to the abovesaid conditions in the last paragraph of Ext.P-6 is that the abovesaid measurement should also be done in the presence of the writ petitioner or in the presence of his

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W.A No.907 of 2022

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authorized nominee/authorized representative and also in the presence of the representatives of the respondent-Travancore Sugars & Chemicals Ltd.. Hence, it is ordered that the Investigating Officer concerned in the above crime will ensure that the seized spirit found in the abovesaid lorries is got measured immediately, without any further delay, through the Deputy Commissioner of Excise concerned and in the presence of the writ petitioner-Contractor or his authorized nominee/authorized representative and also in the presence of the authorized representatives of the respondent-Travancore Sugars & Chemicals Ltd. After such measurement process, the Investigating Officer will hand over the seized spirit so measured to the respondent-Travancore Sugars & Chemicals Ltd., forthwith. This process shall be duly completed by the Investigating Officer and the Deputy Commissioner of Excise, without any further delay, at any rate, within 10 days from the date of receipt of a copy of this judgment. The details in that regard should also be reported thereafter by the Investigating Officer to the Judicial First Class Magistrate Court-I, Thiruvalla, who is dealing with the matter in Ext.P-6 report. There is no necessity for us to enter into any other aspects of the writ petition. The impugned orders and directions of the learned Single Judge in the impugned judgment, will stand modified and substituted as above. We

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W.A No.907 of 2022

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make it clear that all other issues are left open to be raised and decided in appropriate proceedings, in the manner known to law and all contentions available to both sides are thus left open in that regard.

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With these observations and directions, the above Writ Appeal will stand finally disposed of.

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Sd/ALEXANDER THOMAS

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JUDGE

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Sd/-

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SHOBA ANNAMMA EAPEN JUDGE

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vgd

The State of Kerala v. Thomsi.K.a.

Case brief

What is this about?

What did the court decide?

The State of Kerala v. Thomsi.K.a.

Case brief

What is this about?

What did the court decide?

What the court decided

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