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2019 Supreme(Ker) 814
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
John P.J. S/o Joseph – Petitioner
Versus
State of Kerala, Rep. by the Secretary, Excise Department – Respondent
W.P. (C) No. 29988 of 2019
Decided On : 27-11-2019
Advocate Appeared:
For the Petitioners: Sri. P.K. Varghese, Smt. M.B. Shyni, Sri. Deepak Raj, Smt. C.P. Roopa.
For the Respondent: Sri. C.N. Prabhakaran.
IMPORTANT POINTS
A mere show cause notice does not give rise to any cause of action because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings.
Headnote:
The Abkari Act, 1077- Section 13 read with 63- A mere show cause notice does not infringe the right of any one. It is only when a final order adversely affecting a party is passed, that the said party can be said to have any grievance.
Statement of facts:
On 30.12.2018, at about 11.20 hours, the petitioner was found transporting four litres of Indian made foreign liquor in the car KL-13T-9659. The Sub Inspector of Cherupuzha police station detected the offence and registered the case as Crime No. 362 of 2018 of Cherupuzha police station. The car was seized and produced, on 01.01.2019, before the Deputy Excise Commissioner, Kannur, who is the authorised officer under Section 67B of the Abkari Act.
Finding of the court:
The Mechanical Engineer of the Excise Department has assessed the market value of the vehicle as Rs. 80,000/-. The petitioner can get interim custody of the vehicle on deposit of the aforesaid amount.
Result: Dismissed
JUDGMENT :
R. NARAYANA PISHARADI, J.
1. The writ petitioner was the sole accused in the case S.T. No. 288/2019 on the file of the Court of the Judicial First Class Magistrate, Payyannur.
2. The allegation against the petitioner in the aforesaid case was that he committed an offence punishable under Section 13 read with 63 of the Abkari Act, 1077.
3. The prosecution case was that, on 30.12.2018, at about 11.20 hours, the petitioner was found transporting four litres of Indian made foreign liquor in the car KL-13T-9659. The Sub Inspector of Cherupuzha police station detected the offence and registered the case as Crime No. 362 of 2018 of Cherupuzha police station. The car was seized and produced, on 01.01.2019, before the Deputy Excise Commissioner, Kannur, who is the authorised officer under Section 67B of the Abkari Act.
4. The writ petitioner appeared before the learned Magistrate and pleaded guilty to the aforesaid offence. He was convicted and sentenced to pay a fine of Rs. 2,500/- and in default of payment of fine, to undergo simple imprisonment for a period of one month.
5. The second respondent has issued Ext.P2 notice to the petitioner to show cause why the car KL-13T-9659 which was involved in Crime No. 362/2018 of Cherupuzha police station shall not be confiscated to the Government.
6. It is stated in the writ petition that the petitioner has submitted reply to Ext.P2 notice. It is also alleged by the petitioner that there was no inventory of the vehicle prepared as required under Section 53A of the Abkari Act and that there is no clinching evidence to show that the vehicle was used for transportation of liquor. On such allegations, the petitioner has sought the following reliefs in this writ petition:
“(i) Issue a writ of Mandamus or such other writ, order or direction, directing the 2nd respondent to release the Car bearing Registration No. KL-13T-9659 forthwith.
(ii) Issue a writ of Certiorari or such other writ order or direction to call for the records related to Exhibit P2 and quash the same and further proceedings thereto.
(iii) To grant such other and further relief as this Hon'ble Court may consider just and proper in the facts and circumstance of the case.”
7. Heard learned counsel for the petitioner and the learned Public Prosecutor.
8. Ext.P2 is only a notice issued to the petitioner under Section 67C (1) of the Abkari Act to show cause against the confiscation of the vehicle. Ext.P2 notice is dated 13.03.2019. This writ petition challenging Ext.P2 notice was filed only on 05.11.2019.
9. The petitioner has no case that Ext.P2 notice is invalid for any reason. The petitioner has no case that the notice lacks any essential particulars required to be stated therein. The petitioner has got no plea that the officer who has issued Ext.P2 notice has no authority or jurisdiction to issue it. In other words, the petitioner has got no case that the notice is issued by an officer who is not incompetent to issue it.
10. Normally, the writ court will not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned. The person to whom show cause notice is issued can satisfy the authorities about the absence of any case for proceeding against him. Abstinence from interference at the stage of issuance of show cause notice, in order to relegate the parties to the proceedings before the authorities concerned, is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in abuse of process of law, the writ court would not hesitate to interfere. Interference at the stage of show cause notice should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It is to be, prima facie, established to be so. Where factual adjudication is ne
