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2024 Supreme(Online)(KER) 27081
HIGH COURT OF KERALA
GOPINATH P, J
SMT.SILVY SUNNY – Appellant
Versus
THE SUB INSPECTOR OF POLICE – Respondent
WP(C) 37905/2015
An owner's lack of knowledge about a vehicle's use for illegal activities may prohibit its confiscation, emphasizing the need for discretion in such cases.
Headnote:
Confiscation - Abkari Act - Sections 55(a), 55(i), 67B, 67C - The court emphasized the discretionary power of confiscation under section 67B, requiring careful consideration of evidence and the owner's knowledge regarding the vehicle's use for illegal activities.
Fact of the Case:
The petitioner challenged the confiscation of their vehicle, which was used to carry Indian Made Foreign Liquor exceeding legal limits. The petitioner claimed they took necessary precautions to prevent such use and that the brother's actions were unknown to them.
Issues: Whether the confiscation of the petitioner's vehicle was justified under the Abkari Act, considering the petitioner's claims of lack of knowledge about the vehicle's illegal use and the necessity for the officer to exercise discretion.
Ratio Decidendi: The discretionary power of confiscation must be based on a careful assessment of facts and the evidence of the owner's knowledge of illegal activities. The mere occurrence of an unlawful act does not automatically lead to confiscation.
Final Decision: The court set aside the confiscation order and directed fresh consideration with a hearing.
The petitioner has approached this Court challenging Ext.P2 order of the Deputy Commissioner of Excise, Ernakulam ordering confiscation of 'Maruthi Swift VDI' Car bearing Registration No.KL-40/J-8778 belonging to the petitioner and Ext.P4 order of the Additional Excise Commissioner (Enforcement), Thiruvananthapuram confirming the order of confiscation in an appeal filed by the petitioner.
2. The brief facts of the case are as follows:- On 1.12.2014, the vehicle of the petitioner, which was found parked at Perumbavoor town (Kalachanda), was found carrying 11 litres of Indian Made Foreign Liquor.
The brother of the petitioner who was using the car was also arrested, as he had allegedly committed the offences under Sections 55 (a) and 55(i) of the Abkari Act . The allegation is that the brother of the petitioner had purchased and kept in his possession Indian Made Foreign Liquor in excess of the quantity permitted by law and also indulged in sale of the same on 1.12.2014 which was a day on which the sale of liquor is prohibited. The vehicle of the petitioner which was seized was released in terms of the directions issued by the Judicial First Class Magistrate Court- I, Perumbavoor on furnishing of a bond. Thereafter, the proceedings for confiscation of the vehicle were taken under the provisions of Section 67B of the and Ext.P2 order was passed confiscating the vehicle. As already noticed above, the appeal filed by the petitioner against Ext.P2
order was dismissed by Ext.P4 order.
3. The learned counsel appearing for the petitioner would submit that the petitioner is absolutely innocent in the matter. It is submitted that the petitioner is clearly entitled to the benefit of the provisions contained in sub section (2) of Section 67C of the Abkari Act which provide that there shall be no order of confiscation of a vehicle, if the owner or his agent can show that they had taken all reasonable and necessary precautions against the use of the vehicle contrary to the provisions in the . It is submitted that the brother of the petitioner had no criminal antecedents and he used to borrow, for use, the vehicle of the petitioner very frequently. It is submitted that the petitioner had no reason to believe in such circumstances that the vehicle will be used for committing an offence under the . It is submitted that the petitioner had, therefore, taken all reasonable precautions to ensure that the vehicle is not used for commission of any offence under the and therefore, the vehicle of the petitioner is not liable for confiscation. It is also pointed out that, before Ext.P2 order was passed, the petitioner was not afforded an opportunity of hearing. The learned counsel has also placed reliance on a Division Bench judgment of this Court in State of Kerala and others v. Navaru Swapna Reddy ; 2022 (1) KHC 563 , where this Court has held that the power of confiscation under Section 67B is discretionary and should be utilized with care and circumspection. It is submitted that in paragraph 15 and 16 of the aforesaid judgment, it was held as follows:-
- “15.As noted, in terms of the orders impugned in the writ petitions, a Toyota Innova Crysta worth several lakhs of rupees has been confiscated, for the husband of the petitioner and a few of his friends having allegedly carried 3.3 litres of Indian made foreign liquor in the vehicle of the petitioner. The Indian Made Foreign Liquor allegedly carried in the vehicle is a commodity available for purchase in licensed shops in almost every State in the country including the State of Kerala.
- As far as the State of Kerala is concerned, the only restriction concerning the possession of the same, in the absence of any notification under Section 9 of the Act is that it shall not exceed the permissible quantity.
- The quantity of Indian Made Foreign Liquor allegedly carried in the vehicle was well within the permissible limit. This fact is not disputed. The case happened to be registered under Sect
