Confiscation; Douglas Zacharia Vs. Sub Inspector of Police [Kerala High Court, 10-06-2016]

Abkari Act – Sections 65 & 67B – What things liable to confiscation – Confiscation by Abkari Officers in certain cases – Whether the remnants found in a vehicle are sufficient to confiscate a vehicle – Held, Mere finding of remnants in the vehicle is not sufficient to seize the vehicle unless it was able to be shown that the vehicle has been used for carrying contraband articles.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

A. MUHAMED MUSTAQUE, J.

W.P.(C) No.15396 OF 2006

Dated this the 10th day of June, 2016

PETITIONER(S)

DOUGLAS ZACHARIA

BY ADV. SRI.C.C.THOMAS (SR.)

RESPONDENT(S)

1. THE SUB INSPECTOR OF POLICE, NEMOM POLICE STATION, THIRUVANANTHAPURAM DISTRICT.

2. THE ASST. EXCISE COMMISSIONER, O/O. THE ASST. EXCISE COMMISSIONER, THIRUVANANTHAPURAM.

3. THE ADDL.EXCISE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM.

4. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM.

R BY GOVERNMENT PLEADER SRI. BABY THOMAS

J U D G M E N T

The question in this writ petition is whether the remnants found in a vehicle are sufficient to confiscate a vehicle under

# Section 65 of the Abkari Act.

2. The petitioner is the owner of a mini lorry bearing Reg. No.KL-02/J-5722. His vehicle was ordered to be confiscated as per the proceedings of the Assistant Excise Commissioner, Thiruvananthapuram by Ext.P1. The order was appealed before the Additional Excise Commissioner, Thiruvananthapuram. By Ext.P2 order, the appeal was rejected. The petitioner approached this Court challenging this order. This Court on 15.6.2006 passed the following order.

“Since the petitioner is also not interested in the vehicle which is in the custody of the second respondent, there will be a direction to the second respondent to sell the confiscated vehicle in public auction and deposit the money in Government Treasury.”

3. The vehicle thereafter was sold and the amount was deposited in the Government Treasury. The case of the petitioner is that he was using the vehicle in question for transporting toddy with permit and remnants are consequent upon transportation of such toddy. It is his case that no contraband articles have been seized from the vehicle. Therefore, confiscation is illegal.

4. It is appropriate to refer the finding of appellate authority in this regard.

“On perusal of the case records it is seen that the said Mini Lorry was seized from a House near Attingal Market. Moreover the appellant is an employee in the City Bar, run by Rafi.Sri.M.G.Manilal, Dy. Superintendent of Police who was present for hearing stated that sealed packets containing remanance, taken from the Mini Lorry by FSL expert was sent to Forensic Science Laboratory to Chemical Analysis along three types of Cans collected from the Cabin of the Mini Lorry bearing Registration Number KL-02.J.5722 (Tondy No.269/2003). On examination, the FSL report No.B1-2070/FSL/2003 dtd. 28.02.2005 revealed that the M.Os were not natural Toddy.”

5. The above finding would shows that certain remnants were found in the vehicle of toddy and therefore, it was assumed that the vehicle was used for illegal transportation of contraband articles. It appears that large number of vehicles were seized as per Ext.P1 including the petitioner’s vehicle. This seizure was on suspecting that these vehicles were used for transporting contraband articles, spirit and liquor. The order of the authority would indicate that at the time of seizure the vehicle was not carrying any contraband articles. However, remnants were found. The question is whether it is sufficient for confiscation of vehicle.

6. Section 65 of Abkari Act stipulates that the things which are liable to be confiscated. Section 65 reads as follows:

# 65. What things liable to confiscation

In any case in which an offence has been committed under this Act, the liquor, drug, materials, still, utensil, implement or apparatus in respect or by means of which an offence has been committed shall be liable to confiscation.

Any liquor or intoxicating drug lawfully imported, exported, transported, manufactured, had in possession or sold or toddy lawfully drawn or tapped along with, or in addition to any liquor, intoxicating drug or toddy, liable to confiscation under this section, and the receptacles, packages and coverings in which any such liquor, intoxicating drug, materials, still, utensil, implement or apparatus as aforesaid is or are found, and the other contents, if any, of the receptacles or packages in which the same is or are found, and the animals, carts, vessels or other conveyances used in carrying the same, shall likewise be liable to confiscation.

7. Section 67B provides for confiscation by Abkari Officers which reads as follows:

# 67B. Confiscation by Abkari Officers in certain cases

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act; the officer seizing and detaining such property shall, without any unreasonable delay, produced the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer.)

(2) Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that subsection and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof.

(3) When making an order of confiscation under sub-section (2), the authorised officer may also order that such of the properties to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed.”

8. Thus a compared reading of Sections 65 and 67B would indicate that if any of the things referred in Section 65 are found in cart, vessel or other conveyances etc., they shall be liable to be confiscated. Therefore, the pre-requisite is that there must exist any of the things as referred under Section 65 in the cart or vessel etc. for confiscation. There must be some correlation between things and seizure of the vehicle. Mere finding of remnants in the vehicle is not sufficient to seize the vehicle unless it was able to be shown that the vehicle has been used for carrying contraband articles. This Court in

# Paulson v. Assistant Excise Commissioner [2006(4) KLT 965]

held as follows:

“A vehicle which was not actually used in carrying contraband liquor but alleged to have been used for abetting its transport ie., allowing culprits to escape from scene of occurrence, is not liable to be confiscated under S.67-B.”

In the light of the above, this Court is of the view that seizure of the vehicle for alleging finding remnants of toddy is illegal. Consequently, confiscation also is liable to be interfered with. In view of the above, the amount pursuant to the sale of the vehicle is lying with the respondents, the same shall be disbursed to the petitioner within a period of two months from the date of receipt of a copy of this judgment on production of proof of ownership of the vehicle. The impugned order is set aside.

The writ petition is disposed of as above.

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