K.T. Sankaran, J.

The nature and extent of the burden of proof on the owner of the vehicle under Section 67C(2) of the Kerala Abkari Act, is the question involved in this Writ Petition.

2. KL-01-AE-7269, a Hyundai Santro car belonged to Achan Kunju @ Francis. Between 1 A.M. and 5 A.M. on 9/1/2008, the said car was stolen from the car porch of the house of Francis. The matter was reported to the police on 9/1/2008 itself. A crime was registered. The experts of the Finger Print Bureau inspected the premises. Message was sent by the police to the other police stations. The investigation was vigorously conducted. The details of the recently released victims for the offence of theft was also taken into account. Investigation was taken in that line also. Finally, the police concluded that the offence was undetected. A report dated 19/7/2008 was filed by the Circle Inspector of Police before the Magistrate's Court having jurisdiction.

3. On 13/6/2008, the Excise Preventive Officer, Excise Range Office, Pathanamthitta and party seized a Santro car bearing registration No. KL 23-3016 at Alakode Junction for transporting 420 litres of spirit. The driver of the vehicle Sujayraj was arrested. Another person (Binu), who was in the vehicle, ran away and he could not be arrested. An abkari case was registered as CR No. 43/2008 of the Excise Range Office, Pathanamthitta under Sections 55(a) and 67B of the Abkari Act.

4. During the course of investigation of the case, the registration particulars of the vehicle was verified with registering authorities. It was revealed that KL 23-3016, which was exhibited on the seized vehicle, really, belongs to a Hero Honda Motor Bike. The correct registration number of the Santro Car was found to be KL-01-AE-7269. That car belonged to Achan Kunju @ Francis. Proceedings under Section 67B of the Abkari Act were initiated by the Assistant Commissioner of Excise. Notice was issued to Francis, the owner of the vehicle. He appeared before the Assistant Excise Commissioner, who is the authorised officer, and filed reply to the show cause notice. In the reply, it was stated that the vehicle in question was stolen from the car porch on 9/1/2008. Though a crime was registered by the police, the offender could not be apprehended. The relevant records in relation to the registration of the crime were produced before the authorised officer. The owner of the vehicle also stated that he had received compensation from the Insurance Company and that he has no right over the vehicle. The authorised officer did not issue any notice to the Insurance Company. However, Exhibit P6 order dated 31/10/2008 was passed by the authorised officer confiscating the vehicle under Section 67B of the Abkari Act.

5. The New India Assurance Company Ltd. filed an appeal before the Addl. Commissioner of Excise, Thiruvananthapuram challenging the order passed by the authorised officer. The Insurance Company contended that the owner of the vehicle had availed comprehensive insurance package in respect of the vehicle. On reporting that the vehicle was stolen and after satisfying that the vehicle could not be traced out and also taking into account all the relevant facts, the claim of the owner of the vehicle was settled for a sum of Rs. 2, 10,000/-. Accordingly, the registered owner of the vehicle (Francis) issued irrevocable power of attorney dated 5/09/2008 in favour of the Insurance Company. The registered owner also executed another document dated 5/9/2009 subrogating all his rights over the vehicle in favour of the Insurance Company.

6. The appellate authority, namely, the Addl. Commissioner of Excise, Thiruvananthapuram did not accept the contentions put forward by the Insurance Company against confiscation. The contentions put forward by the Insurance Company under Section 67C(2) of the Abkari Act were rejected finding thus :

"The next issue to be considered is whether the RC owner has proved to the satisfaction of the Authorised Officer