SASIDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is the owner of a 1976 Model Bajaj tempo Diesel Driven Van, KLC-7977, costing (according to him) about Rs. 66,000/ -. On the ground that it was used for carrying 2250 m. litres of illicit arrack, the 4th respondent as per his Ext. P2 order of 121977 confiscated it under S. 67b (2) of the Abkari Act, 1077. THE 3rd respondent as per Ext P3 order dismissed the appeal against Ext. P2 order. THE 2nd respondent, likewise, as per Ext P4 order dismissed the revision against the confiscation. THE confiscation of the van as aforesaid is challenged here.

(2.) THE van used to carry passengers on hire from payyannur Railway Station to Payyannur town. On 30 81976, the Excise Inspector, payyannur and party stopped it in front of the Central U. P. School, Payyannur and inspected it. At that time besides its driver there was also a passenger by name Kunhikannan in it While it is the case of the respondents that the Excise inspector on inspection found the illicit arrack in sealed bottles kept covered in a bed sheet in the tool box of the van. the petitioner with reference to the recorded statements of the passenger and the driver, and also the passenger application for permission to compound the offence for Rs 300/-contends that the same was seized from the passenger. On 3 91976 Kunhikannan submitted an application praying for clemency and his statement was recorded then. In this application and this statement he said that the seized arrack was with him and that neither the petitioner nor the driver had any information or knowledge about it. THE driver, in his statement, also recorded on '3-9-1976, denied any knowledge about the arrack in the van On 28-10-1976 Kunhikannan sought for sanction to compound the offence for Rs. 300/- and the 4th respondent accepting the recommendation of the Excise Inspector in that behalf by order dated 8-11-1976 accorded sanction for the same

(3.) IN considering the question of confiscation of a property under S. 67b (2) of the Act, one of the factors to be taken into account by the authorised officer is as to whether the same would operate harshly, in the sense, that such an action is grossly disproportionate to the abkari offence which was committed in respect of or by means of that property. IN this connection the decision of the Supreme Court in Sat Pal v. State of Haryana ( (1979) 3 SCC. 322) can usefully be noticed. The provision considered therein is s. 7 (i) (b) of the Essential Commodities Act, 1955. That section is as follows: "any property in respect of which the order has been contravened or such part thereof as to the Court may seem fit including any packages, coverings or receptacles, in which the property is found and any animal, vehicle, vessel or other, conveyance used in carrying the property, shall be forfeited to the Government: Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property or any packages, coverings or receptacles or any animal, vehicle, vessel or other conveyance it may for reasons to be recorded, refrain from doing so. " The Supreme Court said as follows: "a perusal of the section and also of the proviso clearly shows that the Court has undoubtedly a discretion in suitable cases for reasons to be recorded for not imposing the penalty of confiscation. IN the instant case there are special circumstances which clearly attract the application of the proviso and the order of confiscation ought not to have been passed by the Magistrate. To begin with, the appellant was not a party to the proceedings as he was not given an opportunity to show cause to the Court the circumstances under which the order of confiscation could be passed. Secondly, the truck of the appellant was a very valuable property and to order its confiscation merely because an attempt was made to export cattle fodder through it, would indeed be a very harsh order so as to work serious injustice to the appellant. Thirdly, there is no evidence to indicate that the truck which was used to carry the fodder was hired with the knowledge or concurrence of the appellant. Having regard to these special circumstances we are clearly of the opinion that this was a fit case in which the Court ought to have exercised its discretion under the proviso in not imposing the penalty of confiscation. "