Vehicle owner challenged confiscation under Section 67B of the Abkari Act after acquittal in the related criminal case. The court held that confiscation proceedings are independent of prosecution; acquittal does not invalidate confiscation, and dismissed the writ petition.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 26310 OF 2020
PETITIONER:
MANOJ,AGED 49 YEARS
S/O. AYYAPPANKUTTY, KOODAPARAMBIL HOUSE, ANANDPURAM DESOM, NELLAYI P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BY ADV N.L.BITTO
RESPONDENTS:
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
SMT.K.B.SONY-GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.06.2024, THE COURT ON 12.06.2024 DELIVERED THE FOLLOWING:
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CR
M A ABDUL HAKHIM, J
-------------------------------WP(C) NO. 26310 OF 2020
Dated this the 12th June, 2024
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contending ,inter alia, that the vehicle of the petitioner was found loaded with 150 Litres of toddy in 5 cans during the search conducted by the Sub Inspector of Police Kodakara on 15/10/2014 in the house of one Sri.Laiju in which 5 litres of toddy in a drum and 60 litres of toddy in 2 cans and other utensils were also found; that the said Laiju had valid Inter Division Toddy Transport Permit to transport toddy upto 30.09.2014; that the vehicle of the petitioner was the permitted vehicle; that the petitioner failed to prove that the involvement of the vehicle was without his knowledge and that he had taken reasonable and necessary precaution against the misuse of the vehicle; that admittedly the petitioner permitted to use the vehicle for transportation of toddy in the vehicle without valid permit; that the vehicle used for transporting toddy without valid Permit is liable for confiscation; that the Authorised Officer is entitled to proceed with the confiscation proceedings dehors the other provisions of the Act, irrespective whether the accused is
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prosecuted or not for the offence involved and irrespective of the outcome of such prosecution; and that the confiscation order is perfectly legal and valid.
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67B. Confiscation by Abkari Officers in certain cases.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act, the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer).
(2) Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to
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confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof.
(3) When making an order of confiscation under subsection (2), the authorised officer may also order that such of the properties to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed.
67C. Issue of show cause notice before confiscation under S.67B.- (1) No order confiscating any property shall be made under S.67B unless the person from whom the same is seized-
(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
(c) is given a reasonable opportunity of being heard in the matter.
(2) Without prejudice to the provisions of sub-section (1), no order confiscating any animal, cart, vessel or other conveyance shall be made under S.67B if the owner of the animal, cart, vessel or other conveyance proves to the satisfaction of the authorised officer that it was used in carrying the liquor or intoxicating drug or the material, still, utensil, implement or apparatus or the receptacle, package or covering without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.
in Suraj.K.R V.Excise Inspector, Thrithala 2013 (2) KHC 211 and Celine Antony V.State of Kerala and
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Others Neutral Citation No.2018:KER:50748 and State of Kerala and Others V.Navaru Swapna Reddy 2022 (1)
KHC 563 in support of his submissions.
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precaution that normally an owner of a lorry can take in respect of transport of toddy is that the transport is supported by a valid permit and that it is plain for anybody to see that the owner of a lorry who hires out his vehicle for transport of toddy cannot in addition to seeing that the transport is in accordance with valid permit for such transport, take the trouble of taking sample from the toddy and testing it in the chemical laboratory to see that it does not contain any adulterating material. Hence this decision will not help the petitioner in anyway.
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view of the non obstante clause contained in S.67(B), a vehicle involved in an Abkari offence is liable for confiscation.
The relevant Paragraphs in Shaiju V’s case (supra) are extracted hereunder.
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affirmed the view in Shaiju V’s case (supra) by holding that the question whether the accused was acquitted in the criminal case in respect of the offence under the Abkari Act or whether he was let free pursuant to compounding of the offence under S.67A of the Act, is not a relevant or significant aspect in pursuing steps under S.67B of the Act dealing with the power of confiscation.
Inspector of Police, Cherpulassery and Others
(supra) and I prefer to follow the same.
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the case on hand, I find that the Authorised Officer has properly exercised his discretion based on sound and valid reasons.
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the vehicle proves to the satisfaction of the Authorised officer that it was used without his knowledge or connivance and that he had taken all reasonable and necessary precautions against the misuse. These provisions indicate that the prosecution of the offences under the Abkari Act and the proceedings under S.67B for confiscation of the vehicle involved in the offence, are independent and separate. The outcome of the criminal case has no bearing on the confiscation proceedings. The acquittal of the accused, whatever be the ground or reason, will not render the order of confiscation of vehicle illegal. It is the burden of the owner to establish not only that he was not having knowledge and but also that he had taken all reasonable and necessary precaution to see that the vehicle was never put to such use. When the vehicle was used for transport of liquor without valid Transport
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Permit issued by the Excise authorities, it is to be presumed that the owner has not taken reasonable and necessary precaution to see that the vehicle was never put to misuse.
SD/M A ABDUL HAKHIM, JUDGE
jma
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APPENDIX OF WP(C) 26310/2020
| PETITION | ER EXHIBITS | ||||
|---|---|---|---|---|---|
| EXHIBIT | P1 | A TRUE OBTAINE DATED 1 |
COPY D FRO 5/03/2 |
OF THE M THE 019. |
REGISTRATION PARTICULARS MOTOR VEHICLE DEPARTMENT |
| EXHIBIT | P2 | A TRUE RESPOND |
COPY ENT DA |
OF THE TED 13/1 |
NOTICE ISSUED BY THE 3RD 1/2014. |
| EXHIBIT | P3 | A TRUE 3RD RES |
COPY PONDEN |
OF THE T DATED |
OBJECTION FILED BEFORE THE 26/11/2014. |
| EXHIBIT | P4 | A TRUE RESPOND |
COPY ENT DA |
OF THE TED 13/0 |
ORDER PASSED BY THE 3RD 2/2015. |
| EXHIBIT | P5 | A TRUE RESPOND 27/05/2 |
COPY ENT AD 015. |
OF THE DITIONAL |
ORDER PASSED BY THE 2ND EXCISE COMMISSIONER DATED |
| EXHIBIT | P6 | A TRUE THE A |
COPY DDITIO |
OF THE NAL AS |
JUDGMENT IN SC 581/2015 OF SISTANT SESSIONS JUDGE, |
| IRINJAL | AKUDA | DATED 13 | /03/2019. |
1 issue framed by the court
Whether a vehicle confiscated under Section 67B of the Abkari Act must be released when the criminal case ended in acquittal of the accused?
Colour shows how this judgement treated each authority
Suraj.K.R V.Excise Inspector, Thrithala 2013 (2) KHC 211Distinguished¶10
State of Kerala and Others V.Navaru Swapna Reddy 2022 (1) KHC 563Distinguished¶14
Shaiju V. Assistant Excise Commissioner 2008 (3) KLT 78Followed¶11
Sub Inspector of Police, Cherpulassery and Others V.Rajesh 2017 (4) KHC 917Followed¶12
4 provisions across 1 enactments
Manoj
The State of Kerala
The Additional Excise Commissioner
The Deputy Excise Commissioner
Sub Inspector Police, Kodakara Police Station
M.A.Abdul Hakhim
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
