K M HASSANKUNJU Vs. ASSISTANT EXCISE COMMISSIONER

JUDGEMENT

(1.) What is the concept of ownership under the provisions of Section 67 C of the Abkari Act, in the matter of confiscation of the vehicle, is the question to be considered in this case. Petitioner, by profession a driver, claims to be the owner of an Ambassador Car bearing registration No. KLN-1859. According to him he purchased the vehicle in the month of July 1999. "on 08-06-2000. the petitioner handed over the vehicle to the 5th respondent on executing an agreement for sale" as per Ext.P1. The value was fixed at Rs. 75,000/- of which Rs. 20,000/- was received in advance, the possession was handed over; of the balance Rs. 55,000/-, Rs. 25,000/- was to be paid within ten days and the remaining in 14 monthly instalments. It is seen from Ext.P1 agreement itself that the petitioner was liable for all the liabilities in respect of the vehicle and also all cases till the date of such handing over and thereafter the liability was of the 5th respondent. According to the petitioner the 5th respondent did not act according to the agreement and hence he caused a lawyer notice dated 16-8-2000 to be served on the 5th respondent and further, a complaint was lodged before the Police on 18.9.2000. On 3.10.2000 the vehicle was seized by the Excise Inspector as it was found carrying 420 litres of spirit in secret tanks under the seats of the car. An abkari case was registered. According to the petitioner on coming to know of the case he filed a petition dated 26-3-2001 before the first respondent for releasing the vehicle and pursuant to directions issued by this Court, the vehicle was released on bank guarantee to the petitioner. Thereafter confiscation proceedings were initiated; procedural formalities have been complied with and the first respondent passed Ext.P10 order confiscating the vehicle. Ext.P11 is the appellate order and Ext.P14 is the order in revision, all against the petitioner.

(2.) Sri. P.K. Nishad Puzhithara, learned Counsel appearing for the petitioner inviting extensive reference to the factual background of the case contended that the petitioner is the owner of the vehicle. The 5th respondent having violated the conditions of sale, petitioner had taken all possible steps to repossess the vehicle. The 5th respondent was in illegal possession of the vehicle at the relevant time and hence for the conduct of the 5th respondent at the relevant time the owner is not responsible. The owner thus having taken reasonable and necessary steps, the vehicle is not liable to be confiscated, it is submitted. The learned Counsel made persuasive submissions elaborately referring to the legal position as obtaining from the Sale of Goods Act, Transfer of Property Act, Motor Vehicles Act and the Abkari Act. Reference also was invited to several decisions of the Supreme Court as well as this Court. The sheet anchor of the contentions is that the petitioner is the owner. Though the vehicle was handed over to the 5th respondent, on his violating the conditions of the transfer, petitioner has taken reasonable steps to repossess the vehicle and hence the vehicle is not liable to be confiscated. Smt. P.K. Shakeela learned Government Pleader, on the other hand contends that at the time of commission of the abkari offence, the vehicle was in the custody of the 5th respondent and that the petitioner had handed over the vehicle to the 5th respondent four months prior to the incident. His remedy is only to proceed against the 5th respondent for breach of contract and other consequential reliefs since the grievance of the petitioner can only be on breach of contract by the 5th respondent; it is further submitted.

(3.) Section 67B of the Abkari Act provides for confiscation of vehicles involved in abkari offences by the abkari officers. Section 67C provides for the procedure. Section 67(2) provides that in case the owner of the vehicle proves to the satisfaction of the authorised officer that he had taken all reasonable and necessary precautions against such use, the vehicle is not liable to be confiscated. Thus the crucial question to be tackled in this case is what is the concept of ownership under Section 67B read with Section 67C of the Abkari Act.