NIKETA KISHOREKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The dispute involved in this writ petition relates to the confiscation of a vehicle under S.67B of the Kerala Abkari Act (Act 1 of 1077) (for short the 'Act'). The petitioner who is the owner of a Tanker Lorry bearing Registration No. KA - 03/1767 mainly seeks to quash Exts. P2 and P3 orders passed by the respondents 1 and 2 respectively.

(2.) The case of the petitioner can be concisely stated thus: On 13.3.1992 the above vehicle was seized by the officers of the Excise Department alleging that it was used for transportation of spirit without valid permit. Before confiscating the vehicle no show cause notice was issued to him. Therefore, the petitioner's counsel sent a petition on 30.3.1992 to the first respondent, the Assistant Excise Commissioner, Waynad. In reply so the said letter the 1st respondent sent Ext. P2 letter dated 13.10.1992 to the counsel. In Ext. P2 it was revealed that the vehicle was taken possession by the Ist respondent alleging that it was used for commission of offence under the provisions of the Act. It is further pointed out that it was used for transport of spirit without any valid permit which is punishable under S.55(a) of the Act. The Ist respondent further said that the above vehicle is liable for confiscation under S.67(B) of the Act though a final order has not been passed in that regard. It is also stated in Ext. P2 that the confiscation order will be sent to the petitioner in due course. It is also brought to the notice of the petitioner that the appellate authority in the present case is the Joint Excise Commissioner, Thiruvananthapuram. When the petitioner received Ext. P2 he readily filed Ext. P1 appeal dated 24.11.1992 before the 2nd respondent. The said appeal was disposed of by the 2nd respondent as per Ext. P3 dated 17.4.1993. By the said order the 2nd respondent upheld the order of confiscation by the authorised officer in exercise of powers conferred on him under S.67E of the Act. The 2nd respondent further brought to the notice of the petitioner that he is at liberty to prefer revision petition before the Commissioner of Excise, Board of Revenue, Trivandrum against Ext. P3 within a period of 30 days from the date of the order. This writ petition has been filed in the aforesaid background seeking to quash Exts. P2 and P3 orders as pointed out earlier.

(3.) On behalf of the 1st respondent a counter affidavit has been filed controverting the contentions in the writ petition. Along with the said counter affidavit a copy of the order of confiscation dated 17.2.1993 has been produced as Ext. R1(d). Ext. R1(d) reiterates that the above vehicle has been confiscated to the Government under S.67B(2) of the Act. The counsel for the petitioner submits that the copy of the said order has not been served on the petitioner and therefore, for the purpose of this writ petition Ext. P2 order can be treated as an order of confiscation in as much as the appellate authority treated it so and Ext. P3 is the appellate order passed by the 2nd respondent.