SHOBY VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in O.P.No.8886 of 1992-G has filed this writ appeal against the judgment of a learned Single Judge of this Court, dated 17-8-1992. In the Original Petition, the challenge was against Ext. P6 circular dated 16-1-1992 issued by the Government, as ultra vires and illegal. There is also a prayer for the issue of writ of mandamus or other appropriate direction commanding respondents 3 to 5 to release mini lorry KBE 9639 to the petitioner at least on furnishing bank guarantee. The learned single Judge upheld the validity of the circular and further directed the 4th respondent to release lorry No. KBE 9639 to the petitioner on furnishing bank guarantee for Rs.3,00,000/- to be valid for a period of six months. The petitioner is directed to execute a bond not to sell the vehicle except after obtaining prior permission. The petitioner in O.P. is aggrieved by the direction of the learned single Judge regarding the condition imposed for the release of the mini lorry. Counsel for the appellant submitted that the mini lorry itself will be now worth only Rs.75,000/-. On this basis, the direction given by the learned single Judge to furnish bank guarantee in the sum of Rs.3 lakhs virtually nullifies the benefit of the order directing release of the vehicle to the petitioner. It was also submitted that Ext. P6 circular is illegal and unauthorised.

(2.) We heard counsel for the appellant, Mr.K. Divakaran Nair, Mini Lorry KBE 9639 belongs to the petitioner. It was seized by the Sultan Bathery Police on 14-10-1991 on the ground that a certain quantity of spirit was found in its additional tank (secretive tank). A crime was registered under S.55(a) of the Abkari Act and the matter is pending investigation. The petitioner applied for release of the vehicle to the Assistant Excise Commissioner, Wynad by Ext. P1 dated 23-12-1991. No order was passed thereon. By Ext. P2 dated 5-2-1992, the Excise Inspector, Sulthan Batheri Range informed the petitioner that a quantity of 4 to 5 litres of spirit was found in the mini lorry KBE 9639 belonging to the petitioner when it was seized on 14-10-1991, that a crime No.101/91 under S.55(a) of the Abkari Act was registered and that the appellant/petitioner is directed to show cause why the said vehicle should not be confiscated. The petitioner filed an explanation (Ext. P3) dated 29-2-1992 . He also filed an application before the Joint Commissioner of Excise, Trivandrum for the release of the vehicle, Ext. P4 dated 3-6-1992. By Ext. P5 dated 3-7-1992, the appellant/petitioner was informed by the Joint Commissioner of Excise that as per Government circular (Ext. P6) dated 16-1-1992 the temporary release of the vehicle involved in smuggling of spirit cannot be considered. In these circumstances, the petitioner filed the original petition assailing Ext. P6 circular as ultra vires and illegal and also for the issue of a writ of mandamus directing the respondents to release the vehicle atleast on furnishing bank guarantee. The learned single-Judge directed the release of the vehicle to the petitioner on furnishing bank guarantee for a sum of Rs.3 lakhs. The petitioner objects to the conditions imposed for the release of the vehicle as the amount to be furnished as bank guarantee is stated to be much above the real value of the vehicle and so unworkable and meaningless.

(3.) Mr.K. Divakaran Nair, counsel for the appellant, very vehemently argued that what was given by the right hand has been taken away by the left hand; the vehicle has been ordered to be released by the learned single Judge, but the condition imposed is so harsh, meaningless and oppressive, in that for a vehicle worth Rs.75,000/-it is imprudent and meaningless to furnish a bank guarantee for Rs.3 lakhs. Counsel also submitted that the refusal to release of the vehicle by the Joint Excise Commissioner in Ext. P5 solely based on Ext. P6 circular, is unreasonable and illegal. According to him, Ext. P6 circular is ultra vires and illegal. To re-enforce this argument, counsel for the appellant referred to S.55(a) read with S.66 of the Abkari Act.. It was argued that when an offender is convicted or acquitted, but the Magistrate decides that anything is liable to confiscation, the Magistrate may give the owner of the thing to be confiscated an option to pay in lieu of confiscation, such fine as the officer thinks fit. On the above lines, the argument proceeded to highlight the point that an option should be given to the offender or the accused who may opt for payment of fine; at any rate confiscation is not mandatory and instead of confiscation, a fine which may ordinarily be equal to the value of the vehicle, can be imposed normally.