Confiscation of a vehicle under the Abkari Act requires evidence of the owner's knowledge or active involvement in the offence.

JUDGMENT :

1. The petitioner, the registered owner of Toyota Innova Car bearing Registration No. KL 40/A/8805 has filed this writ petition seeking to quash Exhibits P2 and P4 orders of the Deputy Commissioner of Excise and the Excise Commissioner, respectively. The short facts necessary for the disposal of the writ petition are as follows.

2. On 15.03.2009, the Sub Inspector of Police, Palarivattom seized 1015 litres of spirit from a compound near Vennala and the Innova Car mentioned above was also seized in this connection by the Assistant Commissioner of Police. On 17.03.2009, an abkari case as Crime No. 401 of 2009 was registered under section 55(a) of the Kerala Abkar Act 1 of 1077. After all the legal formalities, the seized vehicle was confiscated by the Government by proceedings of the 4th respondent vide Ext.P2 order. Ext.P2 order was challenged in revision and was confirmed by the Excise Commissioner. Earlier, an application Crl. M.P. No. 613 of 2009 under Section 451 of the Code of Criminal Procedure filed before the Judicial First Class Magistrate Court-1, Ernakulam in Crime No. 401 of 2009 of Palarivattom Police Station for release of the vehicle in question, was dismissed by the learned Magistrate in view of Section 67B of the Abkari Act, holding that since the confiscation proceeding was pending, interim custody cannot be granted. The said order was challenged before this Court and by order in Crl. M.C. No. 1795 of 2009 dated 09.6.2009, the application was allowed on finding that the prosecution, at that point of time did not have a case that the car was used for committing any abkari offence with the connivance or knowledge of the petitioner and thus, interim custody was directed to be granted to the petitioner subject to certain conditions.

3. Learned counsel for the petitioner submitted that the vehicle was given by the petitioner to one Shine on 13.03.2009 by entering into an agreement for lease and the vehicle had to be returned on 18.03.2009. He further submits that it was the petitioner who through GPRS traced the location of the vehicle and complained to the police, which resulted in them seizing the vehicle.

4. Learned Government Pleader on the other hand submitted that there has been illegal transport of spirit and the confiscation proceeding was a consequence of such an offence being committed and the same showed the petitioner's involvement as the registered owner and that Exts.P2 and P4 orders does not suffer from any infirmity.

Heard the learned counsel for the petitioner and the learned Government Pleader and perused the records.

5. After hearing the learned counsel on either side, I am of the firm view that Exhibits P2 and P4 order cannot be sustained for multiple reasons.

6. It is pertinent to note that, the petitioner was not arrayed as an accused despite being the owner of the vehicle. There is no change in circumstance after Ext.P1 order, as no material was brought out in investigation to implicate the petitioner. The fact that the registered owner was not made an accused in the abkari offence would only have been because of the lack of proof to show his involvement in the offence.

7. It is trite that to have the vehicle confiscated, it ought to be established that the owner of the vehicle has prior knowledge or, in the alternative, he should be a party to the offence which will connote his active involvement and till it is not established that the owner of the vehicle has knowledge or that he has connivance with the person or in illegally transporting any contraband, merely because his vehicle was involved in the offence, he cannot be penalised.

8. The petitioner also finds support in the decisions of this Court in Suraj K.R. vs. Excise Inspector, Thrithala and Others, 2013 (2) KHC 211, Ravichandran vs. Excise Inspector, 2015 (1) KLT 218, New India Assurance Co. Ltd. vs. State of Keala, 2011 (1) KLT 429 and Rajesh K. vs. Sub-Inspector of Police, Palakkad and Others, 2015 (4) KHC 253.

9. Equally, when i