ASSOOTTY Vs. ASST EXCISE COMMISSIONER

JUDGEMENT

(1.) The petitioner is the registered owner of lorry MEG.4986. On 11-4-1981 at about 4.30 p.m. the Excise Inspector, Tellicherry range checked the vehicle and found that the lorry was used for illicit transporting of Indian Made Foreign Liquor. The vehicle was seized driver and" cleaner were arrested and they were released on compounding the offence. After notice to the petitioner the vehicle was confiscated by the first respondent under S.67B (2) of the Abkari Act by Ext. P3 order dated 2-11-1981. The appeal filed as evidenced by Ext. P4 was dismissed by the second respondent on 17-3-1982. Ext. P6 revision preferred under S.67(F) of the Abkari Act was rejected by the revisional authority by Ext. P7 proceedings dated 5-8-1982. Exts.P3, P5 and P7 orders are challenged in this petition. 2. The learned Single Judge has referred the matter as the question of co-relation between the value of the vehicle seized and the value of the article involved in the offence arise in the case. This question has been considered by a Full Bench of this Court in State of Kerala v. Sukumara Panicker ( 1987 (2) KLT 341 ). The Court said:

(2.) It has been consistently held by this Court that the power under S.67A of the Abkari Act is discretionary. It is hot mandatory that in all cases where an offence has been committed by means of the vehicle, the confiscation should necessarily follow. It is within the discretion of the concerned authority depending on the facts and circumstances of the particular case to apply its mind and to decide as to whether or not confiscation is called for. (Vide Subramonian Pillai v. State of Kerala, 1982 KLT 518 , Sasidharan v. State of Kerala, 1980 KLT 671 and P. A. Chacko v. Board of Revenue, 1986 KLT 340 ).

(3.) The authorities have concurrently found that at the time of the seizure the vehicle was used for transporting Indian Made Foreign Liquor. There had been 137 boxes which on scrutiny was found to be not supported by import permit or transit permit. The fact that an offence under S.55(a) of the Abkari Act has been committed in respect of the contraband has been satisfactorily established according to the authorities below. The explanation of the petitioner on the genuineness of the documents relied on had been rejected. We have not been persuaded that this finding is vitiated by any error of law or illegality. In the matter of confiscating the vehicle used for the illicit purpose several factors should weigh. The gravity of the offence, the manner in which it was committed and the circumstances under which the vehicle had been used, apart from the comparative value of the articles are relevant considerations. The device adopted in transporting illicit liquor from Mahe did reveal the organized activity which had to be curbed in public interest. It is seen that the confiscation did not follow as a matter of course but it was on a proper application of the mind on all the relevant facts that the authorised officer had passed the order under attack. There had been no procedural lapses. The petitioner had sufficient opportunity to be heard. The petitioner has not succeeded in making out a case to attract S.67C(2). It has not been made out that the vehicle was used without the knowledge or connivance of the person in charge of the same or that he had taken all necessary precautions to prevent the commission of such offence. In the circumstances we find no merit in the challenge.