K.R.SURAJ Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) THE petitioner is the registered owner of a lorry bearing Registration No.KL-7 D 745. His brother, who was the licencee of toddy shops, hired the vehicle belonging to the petitioner for transportation of toddy. The brother of the petitioner had a valid permit for such transportation. On the strength of that permit, while toddy was being transported in the petitioner's lorry, the Excise Officer intercepted the same, took sample from the toddy and on chemical examination found that the toddy contained traces of chloral hydrate. An abkari case was registered, in which the licencee, the petitioner and two others were arrayed as accused. By Ext.P1 order in Criminal R.P.No.206 of 2000, this Court discharged the petitioner from prosecution, finding that there was no allegation that the petitioner was involved directly or indirectly in the transport of contraband liquor and in the absence of any specific provision in the Abkari Act, which casts a liability on the owner of the vehicle for the offences committed using that vehicle, the petitioner cannot be indicted. Subsequently, the 2nd respondent herein took up proceedings for confiscation of the vehicle under Section 67C of the Abkari Act. To the notice issued by the 2nd respondent to the petitioner to show cause why the vehicle should not be confiscated, the petitioner filed a written statement, wherein he stated that his brother had hired the vehicle for transportation of toddy from Palakkad to Thrithala. He ensured that for such transportation, the licencee had a valid permit. According to him, he had no way of knowing whether the toddy that was being transported is adulterated with any noxious substance or not. Therefore, according to him, he had taken all reasonable precaution against use of the vehicle for transport of toddy against the provisions of the Abkari Act. But, without taking into account the contentions of the petitioner, the 2nd respondent passed Ext.P2 order confiscating the vehicle. The petitioner filed an appeal before the Commissioner of Excise, Thirvuananthapuram and the 3rd respondent Additional Excise Commissioner, Thiruvananthapuram, dismissed the appeal by Ext.P3 order. The petitioner is challenging Exts.P2 and P3 orders as well as Ext.P4 direction to produce the vehicle for confiscation. The petitioner had earlier obtained interim custody of the vehicle by virtue of orders of this Court in O.P.No.8513/1996. The petitioner now challenges Exts.P2, P3 and P4 on the ground that the vehicle is not liable for confiscation, insofar as he had taken all reasonable precautions against improper use of the vehicle in violation of the provisions of the Abkari Act.

(2.) A counter affidavit has been filed by respondents 1 to 3 taking the stand that the petitioner is also a party to the illegal transport and insofar as he was the brother of the licencee on whose behalf the transport was made, he was in the knowledge of the fact that the toddy transported in his vehicle contained chloral hydrate.

(3.) OF course it is for the petitioner to prove that he took all reasonable and necessary precautions against the use of his vehicle, in violation of the provisions of the Abkari Act. I am of opinion that the precaution that normally an owner of a lorry can take in respect of transport of toddy is that the transport is supported by a valid permit. It is not disputed before me that for the transport in question the licencee had obtained a valid permit. The only allegation in respect of the transport is that the toddy so transported contained traces of chloral hydrate. It is plain for anybody to see that the owner of a lorry who hires out his vehicle for transport of toddy cannot in addition to seeing that the transport is in accordance with valid permit for such transport, take the trouble of taking sample from the toddy and testing it in the chemical laboratory to see that it does not contain any adulterating material. Of course, if there was an additional allegation that the petitioner was party to the adulteration as well, things would have been different. But, the respondents have not raised such an allegation at all. In fact, it is submitted at the bar that even the licencees and others who were prosecuted under the Abkari Act, were acquitted holding that chloral hydrate was, at the relevant time, not a prohibited substance, the presence of which in the toddy was the reason for holding that the toddy is adulterated. Of course the fact that the petitioner was the brother of the licencee may have given some suspicion of the complicity of the petitioner also in the transport. But, suspicion cannot take the place of proof. Simply because the owner of the lorry was the brother of the licencee under law there is no presumption that the brother also must have been aware of the illegality of the transport.