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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. NAGARESH, J.
Baby, S/o. Antony – Petitioner
Versus
State Of Kerala, Represented By The Principal Secretary, Excise Department, Govt. Secretariat and Ors. – Respondents
W.P.(C) No.6589 of 2024
Decided On : 02-07-2024
Abkari Act - Confiscation Proceedings - Sections 10, 13, 63, 67B, 67C - Rules, 1996 - Rule 4 - The court discussed the provisions of the Abkari Act, particularly Sections 67B and 67C, and the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996, Rule 4, which govern the confiscation and release of confiscated articles. The court emphasized the discretionary power of authorized officers in offering the option of paying a fine in lieu of confiscation and highlighted that the owner of the vehicle does not have an absolute right to exercise this option. The judgment in Nikhil T.M. v. The Deputy Excise Commissioner and others [2016 (4) KLT 372] was referenced to support the interpretation of the rules and the discretion of authorized officers.
Fact of the Case:
The petitioner sought to quash the notices issued by the Deputy Excise Commissioner regarding the confiscation of his vehicle, which was used for transporting liquor. The petitioner argued that he should be granted permanent custody of the vehicle, citing its use for agricultural purposes and the payment of its market value.
Finding of the Court:
The court found that the Excise Commissioner's decision not to release the vehicle permanently was lawful, considering the petitioner's criminal antecedents and the discretionary power of authorized officers in offering the option of paying a fine in lieu of confiscation. The court dismissed the writ petition, stating that there was no illegality in the notices issued by the authorities.
Issues: The main issue revolved around the petitioner's request for permanent release of the confiscated vehicle and the discretion of authorized officers in offering the option of paying a fine in lieu of confiscation.
Ratio Decidendi: The court emphasized the discretionary power of authorized officers in offering the option of paying a fine in lieu of confiscation and highlighted that the owner of the vehicle does not have an absolute right to exercise this option. The judgment in Nikhil T.M. v. The Deputy Excise Commissioner and others [2016 (4) KLT 372] was referenced to support the interpretation of the rules and the discretion of authorized officers.
Final Decision: The writ petition was dismissed as the court found no illegality in the notices issued by the authorities.
JUDGMENT :
The writ petition has been filed seeking to quash Ext.P2 notice-cum-order dated 23.05.2023 and Ext.P3 notice-cum-order dated 06.02.2024 issued by the 3rd respondent-Deputy Excise Commissioner. The petitioner states that he was an accused in Crime No.350/2021 of Sulthan Bathery Excise Range. The petitioner was accused of offences punishable under Sections 10 and 13 read with 63 of the Abkari Act, 1077. It was alleged that the petitioner transported 12 litres of Indian Made Foreign Liquor in his Mahindra Jeep bearing registration No.KL-01H-1277 on 04.12.2021.
2. When IMFL was seized, the petitioner was issued with Ext.P1 show-cause notice dated 09.12.2021. The vehicle was later released to the petitioner granting interim custody on deposit of Rs.70,000/- being the market value then fixed by the Mechanical Engineer of the Motor Vehicles Department. Subsequently, the petitioner was issued with Ext.P2 notice informing that his application for release of the vehicle permanently to him was rejected by the 2nd respondent-Excise Commissioner. The petitioner was required to produce the vehicle before the 3rd respondent to complete confiscation proceedings.
3. The petitioner was served with notice-cum-order dated 06.02.2024 of the 2nd respondent intimating that the 2nd respondent has decided not to release the vehicle permanently to the petitioner. The reason advanced in Ext.P3 was that the petitioner is accused in several other crimes. The petitioner states that those crimes alleged against the petitioner were not of serious nature and in almost all the crimes, the petitioner has been acquitted after trial.
4. The petitioner states that he is an agriculturist. The vehicle has been used to transport seeds, fertilisers, etc. and also to transport agricultural produces. The petitioner has already paid market value of the vehicle at the time of grant of interim custody to the petitioner. Therefore, it is only just and proper that the respondents accede to the request of the petitioner to release the vehicle permanently to him, appropriating the market value already deposited.
5. The Government Pleader resisted the writ petition and filed a statement on behalf of the 3rd respondent. The 3rd respondent stated that the petitioner was arrested by the Excise Inspector on 04.12.2021 while transporting 12 litres of IMFL. A case was registered as CR No.350/2021 of Sulthan Bathery Excise Range. The 3rd respondent initiated confiscation proceedings under Section 67(B) of the Abkari Act and Ext.P1 notice dated 09.12.2021 was issued to the petitioner.
6. The petitioner did not submit any reply to Ext.P1. However, the petitioner sought for temporary release of the vehicle. The Mechanical Engineer of Excise Department valued the vehicle at Rs.70,000/-. On the petitioner depositing Rs.70,000/-, the vehicle was temporarily released to him.
7. In the confiscation proceedings, the 3rd respondent found that the vehicle was used for transportation of liquor with the full knowledge of the petitioner and hence Annexure- R3(a) order was passed on 29.07.2022 confiscating the vehicle. The confiscation of vehicle was communicated to the petitioner. The petitioner filed appeal against confiscation. The Appellate Authority rejected the appeal and ordered to release the vehicle permanently to the registered owner by forfeiting the security deposit of Rs.70,000/- after getting approval of the 2nd respondent-Excise Commissioner. The petitioner filed an application dated 04.11.2022 for permanent release of the vehicle. The said application was forwarded to the 2nd respondent-Excise Commissioner.
8. The 3rd respondent stated that the petitioner is a habitual offender and was involved in 22 crimes. 11 cases in Police Department and 11 Abkari cases, were registered against the petitioner. Out of the 11 cases, the petitioner was convicted with imprisonment and fine in three cases and was convicted with fine only, in five cases. Considering the criminal antecedents
AI
The discretion of authorized officers in offering the option of paying a fine in lieu of confiscation and the absence of an absolute right for the owner of the confiscated vehicle to exercise this op....
Point of law : Sec.67(C) of the Abkari Act says that no order confiscating any property shall be made under Sec.67B unless the person from whom the same is seized, is given a notice in writing inform....
The main legal point established in the judgment is that the term 'used for committing an offence' under the Abkari Act has a wide meaning and that there must be prima facie evidence to show that the....
The outcome of the criminal case has no bearing on the confiscation proceedings under the Abkari Act, and the authorized officer may order confiscation of a vehicle involved in an Abkari offence, irr....
The court can allow the release of a seized vehicle on conditions despite ongoing confiscation proceedings if initial proceedings were not timely initiated.
Confiscation of a vehicle under the Bihar Prohibition and Excise Act requires direct involvement of the owner in the offense; without such involvement, confiscation orders are deemed arbitrary and un....
Provisions in Section 67B of the Act operate independent of Section 67C, it is not to be taken that when an owner does not invoke the provision in Section 67C, there should be confiscation under Sect....
The court emphasized the necessity of providing sufficient reasoning for denying interim release of seized property under relevant statutes.
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