ANIL KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) An order of confiscation passed by the Deputy Commissioner of Excise, Thrissur, in respect of the writ petitioner's vehicle No. KL 47-D-2700 on 30.09.2016 is under challenge in this writ petition, and the said confiscation order is sought to be set aside by a writ of certiorary, on the ground that such an order was passed by the authorised officer without complying with the procedure established by law, without giving him the statutory notice as required under the law, and also without any reason or ground for the satisfaction required for ordering such confiscation. Some quantity of spirit was seized at the instance of the writ petitioner from a building at Velayanad at about 4.00 p.m. on 10.07.2016 by the Sub Inspector of Police, Irinjalakkuda. It is said to be a rented building used by the accused for their liquor business purposes. Along with the contraband articles, two vehicles found at the premises were also seized by the Sub Inspector. One is a Toyota Etios car No. KL 47-D-2700, and the other is a Maruti Suzuki SX4 car No. KL-45-B-1001. On the basis of the search and seizure, the Sub Inspector registered a crime, and prosecution proceeded according to law. The two vehicles involved in the crime were produced before the Deputy Commissioner of Excise, Thrissur, as the authorised officer appointed under Section 67A of the Kerala Abkari Act (for short "the Act"). The Deputy Commissioner of Excise initiated confiscation proceedings against the two vehicles, and after due procedure, and on a perusal of the materials, and also on hearing the parties concerned, he passed the impugned order of confiscation, confiscating the petitioner's vehicle No. KL 47-D-2700 as the vehicle involved in Crime No. 1361 of 2016 of the Irinjalakkuda Police Station.

(2.) Against the order of confiscation, the petitioner filed an appeal before the Additional Excise Commissioner, Thiruvananthapuram, as provided under Section 67E of the Act. The appellate authority rejected the appeal on the ground that it was not filed in time. Though there is a provision for revision, no such proceedings were initiated by the Commissioner under Section 67F of the Act. After dismissal of the appeal by the appellate authority, the owner of the vehicle filed this writ petition.

(3.) On a perusal of the materials, and on hearing both sides, I find some legal infirmities in this case in the matter of confiscation proceedings, and I find that the matter should be properly and legally dealt with and decided by the authorised officer. For ordering confiscation as regards a vehicle under the Act, three essential things are required. One is that the vehicle in question was used as a conveyance for the transportation of the contraband article, the second thing is that the vehicle was used with the knowledge and permission of the registered owner of the vehicle or the person in possession of the vehicle, and the third is that due notice as prescribed under Section 67C of the Act was given to the owner of the vehicle, or the person in possession of the vehicle. Just because a vehicle was seized by the detecting officer, along with the contraband articles, it cannot be said that the vehicle is involved in the crime. A vehicle can be said to be involved in the crime, only when the vehicle is used for the commission of the crime. So, the basic question is whether the petitioner or any other accused had used the vehicle in question as a conveyance for the transportation of the huge quantity of spirit involved in this case. It is here the way and the circumstance of seizure assumes importance. The prosecution has no case that the contraband articles were seen being transported in the vehicle. Admittedly, the vehicle was seen kept at the premises of the building where the seizure was made. It is not known how the authorised officer came to a finding that the vehicle was in fact used for the commission of the crime, or for the transportation of spirit. The confiscation order does not show how the authorised officer came to such a satisfaction or finding.