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2000 Supreme(Ker) 636
High Court of Kerala
R. Bhaskaran, J.
Lal - Appellant
Versus
Asst Excise Commissioner & Ors - Respondent
O.P. No. 33167 of 2000
Decided On : 07-12-2000
Denial of the opportunity to examine witnesses in confiscation proceedings violates the principles of natural justice.
Headnote:
confiscation proceeding - examination of witnesses - Abkari Act - S. 67B(2), S. 67C(1) - Custom Act - violation of principles of natural justice
Fact of the Case:
The petitioner's mini lorry was seized in connection with an abkari offence for allegedly transporting more toddy than permitted. The petitioner sought to examine witnesses in the confiscation proceedings, but the request was denied. The issue was whether permission for examining witnesses in a confiscation proceeding can be denied.
Finding of the Court:
The court found that denial of the opportunity to examine witnesses in the confiscation proceedings violated the principles of natural justice. The court allowed the Original Petition and directed the first respondent to give the petitioner an opportunity to examine the witnesses as requested.
Issues: The main issue was whether in a confiscation proceeding, permission for examining witnesses or to cross-examine the witnesses can be denied.
Ratio Decidendi: The court relied on previous decisions to establish that denial of the opportunity to cross-examine witnesses in confiscation proceedings violates the principles of natural justice. It emphasized the importance of affording a reasonable opportunity to be heard and the right to examine and cross-examine witnesses in such proceedings.
Final Decision: The court allowed the Original Petition, quashed the communication denying the petitioner's request to examine witnesses, and directed the first respondent to give the petitioner the opportunity to examine the witnesses as requested.
R. Bhaskaran, J.
1. Petitioner is the owner of a mini lorry. The lorry was seized by the police in connection with and abkari offence. The offence alleged is that more than the quantity of toddy permitted by the Toddy Transport Permit was transported in the lorry. Petitioner had filed O.P. No. 634/1999 and got temporary release of the vehicle subject to confiscation proceedings.
2. The first respondent by Ext. P4 notice issued to the driver and cleaner of the lorry directed them to show cause why the vehicle shall not be confiscated. Petitioner being the owner of the vehicle submitted a reply and he wanted to examine the accused in the criminal case, the Circle Inspector of Police who seized the vehicle and the two mahazar witnesses. Ext. P5 is the representation made by petitioner to the first respondent. The case of petitioner is that he had the permit to transport 2550 litres of toddy and what was transported was only 2400 litres and when one permit was shown to the Circle Inspector of Police, he did not accept the same and registered the case, suppressing the permit. Therefore, petitioner wanted an opportunity to examine certain witnesses. After receipt of Ext. P5, petitioner was called for a personal hearing as per Ext. P6. On the day posted for the personal hearing, the case was adjourned without any reason. Thereafter, petitioner received Ext. P7 informing him that the confiscation proceedings cannot be equated with a criminal trial and the request for examining the concerned parties cannot be considered. Petitioner is challenging Ext. P7 by which he is refused permission to examine witnesses in the confiscation proceedings.
3. Therefore, the question to be considered in this Original Petition is whether in a confiscation proceeding, permission for examining witnesses or to cross-examine the witnesses can be denied.
4. Learned counsel for petitioner relied on the decision of this Court reported in Karan Vir Mehta v. Collector of Customs, Cochin (1998 (97) ELT 42 (Kerala)). In that case, confiscation proceedings under the Custom Act was initiated. The case of the Customs authorities was that there was misdeclaration with regard to the value furnished by the importer in the bill of entry and the goods are liable for confiscation. The Customs Authorities were relying on the opinion of Shri. Gopalakrishnan submitted to the Assistant Director of Intelligence in which he has stated that the photocopier parts which came from abroad in 92 cases in the name of M/s. Shine Star Industries, New Delhi were found to be photocopier parts of Cannon NP 270/305 models, and that these parts can be assembled into photocopiers. The petitioner had requested for an opportunity to cross-examine Shri. Gopalakrishnan before his opinion was accepted. But no such opportunity was afforded to the petitioner. It was held by this Court that denial of opportunity to the petitioner to cross examine Shri. Gopalakrishnan in spite of his request is an act of violation of the principles of natural justice. It was further held that no finding can be based on the hearsay opinion evidence of a person whose credibility as an expert has not been duly established.
5. Sasidharan v. State of Kerala (1980 KLT 670) is a case arising under the Abkari Act itself. George Vadakkel, J. held that S. 67B (2) of the Abkari Act is only an enabling provision and not a mandatory provision for ordering confiscation. It was held in that case as follows:
"The enquiry envisaged by S. 67C (1) of the Act is not a mere formality. Under the provision, the show cause notice shall mention the grounds on which the property is proposed to be confiscated, and the person to whom it is issued is to be afforded an opportunity to submit a written representation, and further, a reasonable opportunity of being heard. I do not think that merely by putting certain questions to the person who in response to the show cause notice, appears at the time of hearing and eliciting from him answers there
