DEEPAK Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) The petitioner, who is the registered owner of an autorickshaw bearing registration No.KL-05/AL-2026, was arrayed as the accused in Crime No.56/2015 of the Excise Range Office, Ettumanoor, alleging offence punishable under Section 55(i) of the Abkari Act, 1077 (for brevity 'the Act') . The allegation made against the petitioner was that, on 1.10.2015, at about 12.45 p.m., the petitioner was found engaged in the sale of Indian Made Foreign Liquor near Kuzhithar Hospital Junction and that, he was keeping liquor in his autorickshaw bearing registration No.KL-05/AL-2026. The Excise Inspector, Ettumanoor Range filed final report before the Judicial First Class Magistrate Court-I, Ettumanoor and the case was committed to Sessions Court, Kottayam, as S.C.No.427 of 2016. After trial, the petitioner was acquitted as he as found not guilty of the offence punishable under Section 55(i) of the Act, by Ext.P1 judgment dated 28.7.2017 of the Sessions Court, Kottayam.

(2.) The autorickshaw owned by the petitioner was confiscated by the 3rd respondent Deputy Excise Commissioner, invoking the provisions under Section 67B of the Act, vide Ext.P2 order dated 24.12016. Against the order of confiscation, the petitioner preferred Ext.P3 memorandum of appeal dated 21.9.2017, under Section 67E of the Act, before the 2 nd respondent Additional Excise Commissioner (Enforcement) . Since Ext.P3 appeal was filed beyond the time limit of 30 days from the date of communication of the order of confiscation, it was accompanied by Ext.P4 interlocutory application filed under Section 5 of the Limitation Act, 1963 to condone the delay of 241 days in filing that appeal.

(3.) By Ext.P5 order of the 2nd respondent appellate authority dated 10.10.2017, Ext.P3 appeal filed by the petitioner stands dismissed on the ground that though the petitioner was served with a copy of Ext.P2 order of confiscation on 30.12.2016, the appeal was filed only on 18.9.2017. Feeling aggrieved by Ext.P5 order, the petitioner is before this Court in this writ petition filed under Article 226 of the Constitution of India seeking a writ of certiorari to quash the said order and seeking a writ of mandamus commanding the respondents to release his autorickshaw bearing registration No.KL-05/AL-2026.