ASST EXCISE COMMR Vs. VIJAVAN

JUDGEMENT

(1.) These two writ appeals have been filed by the State jointly along with the concerned officials of the excise department against the judgments of a learned single Judge of this court allowing OP No. 2258 of 1978 and OP No. 1134 of 1978 and quashing the proceedings taken against the writ petitioners for confiscation of two motor vehicles belonging to them under S.67B of the Abkari Act, 1077 (hereinafter called the Act). Since the points raised in the two appeals are substantially identical they have been heard together at the request made by counsel appearing on both sides.

(2.) Writ Appeal No. 114 of 1980 arises out of OP No. 2258 of 1978. The writ petitioner therein is the owner of a stage carriage vehicle (motor bus) bearing registration No. K. L. C. 8605 which is operating a service on the route Tholpetti - Mannontoddy on the basis of a permit granted by the concerned Regional Transport Authority. On 10-9-1977 at about 2 P. M. while the bus was proceeding from Tholpetti the Circle Inspector of Excise, Mannontoddy stopped the vehicle near Thirunelli Amsom and recovered from one of the passengers 20 bottles containing Indian made foreign liquor which were concealed in a suit case and 3 bottles of foreign liquor wrapped in paper and kept near that suit case under the seat. The bus was thereupon seized and besides the concerned passenger, the driver, conductor and the cleaner of the bus were arrested by the preventive officer of the excise department on the ground that there was a violation of S.55A of the Act. The offence against the passenger was later compounded on his remitting Rs. 300 as the compounding fee. Thereafter the Assistant Excise Commissioner, Cannanore issued notice to the writ petitioner under S.67C of the Act to show cause why the vehicle should not be confiscated to the Government. Similar notices were also issued to the driver, conductor and cleaner of the bus. The writ petitioner submitted a detailed representation denying his having committed any offence under the Act and stating that he had no knowledge at all that the passenger concerned was carrying contraband liquor in the suit case and in the paper package. The said defence was not accepted by the Assistant Commissioner and he ordered confiscation of the bus under S.57 B of the Act as per his proceedings dated 17-11-1977 evidenced by Ext. P6. On appeal filed by the writ petitioner before the Joint Commissioner of Excise, Trivandrum the order of confiscation was modified to the extent of permitting the writ petitioner to pay a fine of Rs. 4,000 to the Government in lieu of confiscation within 30 days from the date of the appellate order (Ext. P8 dated 2-6-1978). In rejecting the petitioner's contention that no offence had been committed by him so as to warrant confiscation of the vehicle under S.67B, the appellate authority was of the view that there is no rule or law under which the staff of a stage carriage bus is prevented from checking the luggage of the passengers and that it is their bounden duty to ensure that no contraband articles, the transport of which is prohibited under any law, are sought to be transported in the vehicle of which they are in charge. Aggrieved by the aforesaid order passed by the appellate authority the petitioner approached this court by filing the original petition out of which this appeal has arisen seeking to quash Exts. P6 and P8.

(3.) Writ Appeal No. 139 of 1980 arises out of OP No. 1134 of 1978 The writ petitioner is the owner of a Tempo van bearing registration No. K. L. C. 7977 which is operating a passenger service between Payyannur railway station and Payyannur town on the strength of a permit issued by the Regional transport Authority, Cannanore. On 30-8-1976 while the vehicle was operating the said service it was stopped and checked by the Excise Range Inspector, Payyannur and on inspection it was found that 3 bottles of Mysore arrack covered in a bed sheet was being carried in the van by a passenger by name Kunhikannan. Thereupon the van and the contraband articles were taken into custody by the Excise Range Inspector and a case was registered against the passenger aforementioned. The offence against him was, however, subsequently compounded on his paying an amount of Rs. 300. Proceedings were later, initiated against the writ petitioner by the Assistant Excise Commissioner, Cannanore under S.67B(2) and 67C of the Act for confiscation of the vehicle. In response to the show cause notice served on him the petitioner filed a detailed explanation stating that neither himself nor the person in charge of the vehicle had knowledge or even reason to suspect that the passenger concerned was carrying the contraband liquor and that no offence had been committed by the petitioner under the Act so as to render himself liable for action under S.67B. Those contentions were, however, rejected by the Assistant Commissioner and the vehicle was ordered to be confiscated as per his proceedings evidenced by Ext. P2 dated 25-1-1977. Though the petitioner filed an appeal before the Joint Commissioner of Excise, Trivandrum, that appeal was dismissed as per the order Ext. P3 and a further revision filed before the Board of Revenue was also rejected as per the proceedings of the Board evidenced by Ext P4. The writ petition was thereafter filed by the petitioner seeking to quash Exts. P2, P3 and P4.