Allowed

Martin Jose v. the Excise Inspector

Kerala HC22 Feb 2024WP(C)/25867/2014

Case brief

AI extract

What is this about?

Writ petition challenging confiscation of vehicle and IMFL seized during a shop search. High Court held natural justice violated due to absence of explicit hearing record in impugned orders. Petitioner's domestic use plea unreconsidered. Remanded to original authority for fresh proceedings with hearing.

What did the court decide?

Impugned orders set aside; matter remanded to original authority for fresh consideration with notice and personal hearing to the petitioner within three months.

Martin Jose Vs the Excise Inspector — Constitutional and Fundamental Rights | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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THURSDAY, THE 22^ND DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945

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WP(C) NO. 25867 OF 2014

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PETITIONER:

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MARTIN JOSE AGED 33 YEARS

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S/O.JOSEPH P.T., PULIPARAMBIL HOUSE,AMANAKARA P.O., RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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BY ADV SRI.NIREESH MATHEW

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RESPONDENTS:

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1 THE EXCISE INSPECTOR EXCISE RANGE OFFICE, PALA, KOTTAYAM DISTRICT.

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2 THE DEPUTY COMMISSIONER OF EXCISE KOTTAYAM.

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3 THE ADDL. EXCISE COMMISSIONER EXCISE HEAD QUARTERS, NANDAVANAM, THIRUVANANTHAPURAM695 001.

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4 THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM-695 001.

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OTHER PRESENT:

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SRI. SAIGY JACOB PALATTY -SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING:

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W.P.(C) No.25867 of 2014

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SHOBA ANNAMMA EAPEN, J.

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W.P(C) NO.25867 OF 2014

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Dated this the 22^nd day of February 2024

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J U D G M E N T

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Petitioner is the registered owner of the

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vehicle, Mahindra Verito car bearing Reg.No.KL35/C-4703. On 3.7.2012 at about 8.30 pm, the excise officials of the Pala Excise Range have conducted a search in the grocery shop run by the petitioner and seized four litres of Indian Made Foreign Liquor (IMFL) from there. Further, it is alleged that a car parked in front of the grocery shop was subsequently searched and 5 litres of IMFL was seized. Thus altogether 9 litres of IMFL was seized. The petitioner was arrested from the grocery shop and subsequently bail was granted and the vehicle and the contraband articles were taken into custody. Thereafter, the petitioner was produced before the second respondent for initiating proceedings under Section 67B of the

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W.P.(C) No.25867 of 2014

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Abkari Act (for short ‘the Act’) and as per Ext.P1 order dated 21.8.2013, the petitioner’s vehicle was confiscated. Ext.P1 order was challenged by filing Ext.P2 appeal before the third respondent and the same was rejected. Further, revision petition was filed challenging Exts.P1 and P3 orders before the fourth respondent. The said revision was also dismissed. Aggrieved by the same, the above writ petition is filed by the petitioner.

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2. The main contention raised by the

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petitioner is that he was not heard before issuing Ext.P1 confiscation order. The appellate authority as well as the revisional authority found against the petitioner stating that the records revealed that the petitioner appeared before the second respondent and submitted a statement. The further contention raised by the petitioner is that he had purchased the IMFL from the Beverages shop for providing it to the workers

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W.P.(C) No.25867 of 2014

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in connection with the concreting work of his house.

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3. The fourth respondent filed counter affidavit contending as follows:-

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The allegation that the seized liquor was purchased from KSBC shop and that it was brought for providing to the workers while doing the concrete work of his house is incorrect. He was given a chance for personal hearing through a notice and he was personally heard on 23.07.2012 and he never raised the plea for examination of witnesses at any time. It is after affording an opportunity of personal hearing to the petitioner that the second respondent passed confiscation order complying all legal formalities. Ext.R4(b) statement was submitted by the petitioner in response to Ext.R4(a) notice. The issue regarding the denial of hearing opportunity was re-examined by both the appellate authority as well as the

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revisional authority and found against the petitioner. There is no merit in the contentions raised by the petitioner in the writ petition and it is only to be dismissed.

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4. Heard the learned counsel for the

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petitioner and the learned Government Pleader.

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5. The main contention highlighted by the

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petitioner is that there is violation of principles of natural justice by not giving an opportunity to the petitioner for a personal hearing. On a perusal of Ext.P1 order, it is seen that pursuant to the show cause notice issued by the respondents, the petitioner had given a reply. It is the case of the petitioner that the reply to

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the show cause notice was received by the predecessor of the officer, who passed the order and the order was passed after more than a year. The order reflects that the reply filed by the petitioner was considered, but nothing is stated

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in the order as to the hearing opportunity granted

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to the petitioner. In the appellate order, it is

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stated that on the hearing date, a lawyer appeared for the petitioner and submitted his arguments.

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6. Section 67C(1) of the Act reads as

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follows:-

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“67C. Issue of show cause notice before confiscation under section 67B. -

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(1) No order confiscating any property shall be made under section 67B unless the person from whom the same is seized -

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(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property;

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(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and

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(c) is given a reasonable opportunity of being heard in the matter.”

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As per Section 67C(1)(c), no order confiscating

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any property shall be made under section 67B unless the person from whom the same is seized is

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given a reasonable opportunity of being heard in the matter. Though the reply was filed on

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W.P.(C) No.25867 of 2014

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23.07.2012, Ext.P1 order of confiscation was

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passed on 21.08.2013.

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7. In the appellate order, it is stated that before passing Ext.P1 order, the petitioner was heard by the Deputy Excise Commissioner directly, but Ext.P1 order does not reflect the same. Similarly, in Ext.P9 revisional order, the revisional authority has stated that pursuant to the notice, the petitioner appeared before the Deputy Excise Commissioner and gave evidence stating that the confiscated liquor was not purchased for sale, but it was purchased for giving to the workers in the house in connection with the engagement of his wife’s sister. The appellate authority as well as the revisional authority has stated that the petitioner was heard before passing the impugned order. However, the aspect of opportunity of hearing is absent in the impugned order. It has to be presumed that though the reply was filed to the notice, the petitioner

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was not afforded an opportunity of hearing. The officer who took charge subsequently, ought to have afforded an opportunity of hearing to the petitioner before the order was passed, since the reply was filed by the petitioner before the predecessor of the authorised officer and hence, there is clear violation of principles of natural justice.

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8. It was the case of the petitioner that the IMFL was purchased for the purpose of serving the same to the workers in connection with the concreting of the newly constructed building of the petitioner’s elder brother and also for the betrothal ceremony of the petitioner's wife’s sister and hence it was purchased not for sale. The original authority as well as the appellate authority has not considered this aspect while passing Exts.P1 and P3 orders. However, the revisional authority has dealt with this issue and found that there was discrepancy in the statement

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of the petitioner as regards the contentions raised and rejected the plea. The authorities have stated that it is on the basis of a secret information received about sale of IMFL in the shop of the petitioner, that search was conducted and IMFL was seized from the shop and the car. The petitioner had produced supporting documents to substantiate the betrothal ceremony. No factfinding was done by the authorities concerned on these aspects. On the other hand, they came to the conclusion that the IMFL was purchased for sale. In Ext.P3 order, it is stated that an amount of Rs.250/- was recovered from the petitioner towards the sale of IMFL. There is no corroborating evidence to prove that the amount of Rs.250/recovered was towards the sale of IMFL. Admittedly, the vehicle was released on depositing Rs.5 lakh by the petitioner.

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9. On a consideration of the entire facts, I

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am of the opinion that there is violation of

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principles of natural justice by the primary authority while passing Ext.P1 order and there was no proper appreciation of facts by the primary authority as well as the appellate and the revisional authorities. Hence,it is a fit case to be remanded back to the original authority and I am inclined to interfere with the impugned orders.

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Accordingly, the writ petition is allowed. The impugned orders are set aside. The original authority is directed to reconsider the matter afresh, with notice to the petitioner and also after affording an opportunity of hearing to the petitioner, within a period of three months from the date of receipt of a copy of this judgment.

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Sd/-

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SHOBA ANNAMMA EAPEN, JUDGE

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MBS/-

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W.P.(C) No.25867 of 2014

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APPENDIX OF WP(C) 25867/2014

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PETITIONER'S EXHIBITS:-

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EXT.P1.PHOTOCOPY OF THE ORDER NO.K3-4152/12 DATED 21/8/2013 PASSED BY THE 2ND RESPONDENT

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EXT.P2.PHOTOCOPY OF THE APPEAL MEMORANDUM DATED 8/10/2013 FILED BEFORE THE 3RD RESPONDENT.

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EXT.P3.PHOTOCOPY OF THE ORDER NO.74/APL/2013 DATED 11/2/2014 PASSED BY THE 3RD RESPONDENT

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EXT.P4.PHOTOCOPY OF THE REVISION PETITION DATED 8/3/2014 FILED BEFORE THE 4TH RESPONDENT

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EXT.P5.PHOTOCOPY OF THE ADDITIONAL NOTES OF ARGUMENT DATED 22/5/2014 FILED BEFORE THE 4TH RESPONDENT

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EXT.P6.PHOTOCOPY OF THE BETROTHAL CERTIFICATE OF THE PETITIONER'S WIFE'S SISTER DATED 8/10/2012 ISSUED FROM THE ST.SEBTASTIAN'S CHURCH, AMNAKARA.

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EXT.P7.PHOTOCOPY OF THE CERTIFICATE OF MARRIAGE OF THE PETITIONER'S WIFE'S SISTER DATED 11/8/2014 ISSUED FROM THE ST.SEBTASTIAN'S CHURCH, AMNAKARA.

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EXT.P8.PHOTOCOPY OF THE RELATIONSHIP CERTIFICATE DATED 11/10/2012 ISSUED BY THE VILLAGE OFFICER, RAMAPURAM.

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EXT.P9.PHOTOCOPY OF THE ORDER NO.XA44126/2014/K.DIS DATED 13/6/2014 PASSED BY THE 4TH RESPONDENT

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EXT.P10.PHOTOCOPY OF THE NOTICE DATED 5/9/2014 ISSUED BY THE 2ND RESPONDENT

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EXT.P11.PHOTOCOPY OF THE JUDGMENT DATED 13/7/2012 IN WPC NO.4172/2008 PASSED BY THIS HONOURABLE COURT.

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EXT.P12.PHOTOCOPY OF THE JUDGMENT DATED 22/12/2011 IN WPC NO.1951/2011 PASSED BY THIS HONOURABLE COURT.

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EXT.P13.PHOTOCOPY OF THE JUDGMENT DATED 23/2/2012 IN WPC NO.19964/2010 PASSED BY THIS HONOURABLE COURT.

Martin Jose v. the Excise Inspector

Case brief

What is this about?

What did the court decide?

Martin Jose v. the Excise Inspector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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