VAMADEVAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The learned single Judge dismissed the Original Petition challenging Ext. P1 order of the 4th respondent, the Assistant Excise Commissioner, ordering confiscation of Ambassador Car K.L.Q. 5432 belonging to the petitioner in exercise of the power under S.67B of the Abkari Act, as confirmed by Ext. P2 order passed in appeal by the Joint Commissioner of Excise and Ext P3 order passed in revision by the 2nd respondent. The reason for the confiscation was that an Excise party detected an Abkari case involving the said car. At the time of detection the car carried 260 litres of toddy in 11 plastic cans. The car, along with the material objects, was seized. The case against the driver was compounded. The owner of the car, the petitioner, approached the Assistant Excise Commissioner seeking the release, of the car contending that the car was garaged for repairs and that was taken out by the driver without his consent or knowledge. Though the car did not stand registered in the name of the petitioner, the 4th respondent accepted the petitioner's case that the petitioner was the owner of the car. The 4th respondent further found that the key of the car and other records were with the driver, Sasi. It was while so that the vehicle was used for transporting toddy at the instance of a toddy shop contractor. Appreciating the circumstances of the case the 4th respondent came to the conclusion that (a) the owner of the car the petitioner, was not responsible for the commission of the offence (b) it was admitted that he bad no knowledge about the offence nor was there any connivance by him (c) he had taken certain extent of precaution against the commission of the offence (d) the driver did not commit the offence during the course of the employment (e) the offence was only technical in the strict sense; had a permit been obtained the transport of toddy would not have been an offence under the Act (f) for the above reason the same yard stick cannot be applied here as in the case of a vehicle transporting illicit arrack which latter event adversely affects the revenue of the State (g) considering the technical offence involved in the case and also in view of the owner's innocence the owner of the car deserves a sympathetic consideration.

(2.) Having found all these the 4th respondent followed it up by saying that S.67C(2) does not permit release of the vehicle as requested by the owner of the vehicle. Consequently he imposed the order of confiscation. The appellate authority found that the driver was involved in the commission of offence, that the part played by the owner was immaterial, the law on the point was clear, that the appellant had failed to take reasonable and necessary precaution against the misuse of the car and therefore the confiscation order was right. For coming to the conclusion that the appellant had failed to take precaution, neither the finding of the 4th respondent nor the evidence on it was even adverted to by the appellate authority nor did the appellate authority hold that the finding of the 4th respondent was unsustainable for want of evidence. The revisional authority found that no point of law had been pleaded before it. It referred to one and only circumstance, namely the owner leaving the key of the car with the driver instead of instructing him to entrust it to the workshop authorities.

(3.) Evidently the scope of S.67B of the Abkari Act has not been properly understood by the 4th respondent. There has not been a proper appreciation of the scope of the provision by the Appellate and Revisional authorities. It would appear from the order of the 4th respondent, Ext. P1, that confiscation is assumed to be mandatory when once contravention is proved and there is no discretion in the authority considering the imposition of punishment to confiscate or not. It is this that should call for consideration in this Writ Appeal.