SUB INSPECTOR OF POLICE, CHERPULASSERY Vs. K. RAJESH

JUDGEMENT

(1.) The appeal is at the instance of the State. Challenge is against the verdict passed by the learned Single Judge setting aside the order of confiscation and releasing the vehicle which was involved in an 'Abkari' offence. The question involved is, whether the 'burden of proof' is upon the prosecution or upon the owner of the vehicle, to get the vehicle released, with reference to the absence of knowledge as envisaged under S.67C(2) of the Abkari Act (hereinafter referred to as 'the Act'), from the consequences of confiscation under S.67B of the Act.

(2.) The respondent herein was the owner of the Jeep bearing Registration No. KL - 9E / 7304 on 13/04/2004. The said vehicle was intercepted by the Deputy Superintendent of Police, Shoranur and his team in the course of transportation of toddy from Chittur, to Cheruplasserry, Palakkad District by about 9 a.m. In the course of physical examination, it was found that, apart from 400 litres of toddy covered by Ext.P1 and Ext.P2 permits, 70 litres of spirit was also being carried in the vehicle, which was being transported, despite the fact that it was a forbidden item. The vehicle and the contents were seized after completion of the procedural formalities and the driver of the vehicle and 2 others, who were travelling in the jeep, were arrested and arraigned as Accused 1 to 3 in Crime No. 85/2004 of Cheruplasserry Police Station, particularly in respect of the offence under S.55(a) of the Act. The respondent herein being the owner of the vehicle was also implicated as the 4th Accused and the persons by name Murukan and Chami (licensees of Toddy Shop Nos. 44/2004-05 and 28/2004-05), in whose favour Exts.P1 and P2 permits were issued, were also arraigned as Accused 5 and 6. Pursuant to the above proceedings, the vehicle was handed over by the Police to the competent authority to be dealt with under S.67B of the Act.

(3.) In the course of further proceedings, the respondent / owner of the vehicle filed W.P.(C) No. 16353/2004 before this Court for getting interim custody of the jeep. The said writ petition was disposed of by this Court on 14/06/2004 directing interim custody of the vehicle to be released to the writ petitioner; subject to satisfaction of Bank Guarantee for a sum of Rs.1,75,000.00, which was stated as the market value of the vehicle as on date and also on execution of necessary bond by the writ petitioner. The vehicle was released accordingly. Later, a show - cause notice was issued by the 2nd respondent / authorised officer to the respondent / owner of the vehicle, on receipt of which, he submitted Ext.P3 reply on 08/12/2004. The main contention was that, the vehicle was entrusted to the licensees for transportation of toddy and that he was never having any knowledge as to the transportation of the illicit liquor (spirit) on the date of interception and hence his vehicle was not liable to be confiscated under S.67B of the Act. After hearing, the 2nd respondent / competent authority passed Ext.P4 order on 27/12/2004 holding that there was absolutely no merit in the contention raised by the owner of the vehicle and that the said authority was not satisfied that the requirements under S.67C(2) of the Act were made out. In the said circumstances, the vehicle was confiscated under S.67B of the Act.