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1992 DIGILAW 358 (KER)

Shoby Varghese v. State of Kerala

1992-09-23

PARIPOORNAN, USHA

body1992
Judgment :- Paripoornan, J. The petitioner in O.P.No.8886 of 1992-G has filed this writ appeal against the judgment of a learned Single judge of this Court, dated 17-8-1992. In the Original Petition, the challenge was against ExLP6 circular dated 16-1-1992 issued by the Government, as ultra vires and illegal. There is also a prayer for the issue of writ of mandamus or other appropriate direction-commanding respondents 3 to 5 to release mini lorry KBE 9639 to the petitioner at least on furnishing bank guarantee. The learned single judge upheld the validity of the circular and further directed the 4th respondent to release lorry No. KBE 9639 to the petitioner on furnishing bank guarantee for Rs.3, 00,000/- to be valid for a period of six months. The petitioner is directed to execute a bond not to sell the vehicle except after obtaining prior permission. The petitioner in O.P is aggrieved by the direction of the learned single judge regarding the condition imposed for the release of the mini lorry. Counsel for the appellant submitted that the mini lorry itself will be now worth onlyRs.75, 000/-. On this basis, the direction given by the learned single judge to furnish bank guarantee in the sum of Rs.3 lakhs virtually nullifies the benefit of the order directing release of the vehicle to the petitioner. It was also submitted that Ext.P6 circular is illegal and unauthorised. 2. We heard counsel for the appellant, Mr.K. Divakaran Nair, Mini Lorry KBE" 9639 belongs to the petitioner. It was seized by the Sultan Bathery Police on 14-10-1991 on the ground that a certain quantity of spirit was found in its additional tank (secretive tank). A crime was registered under S.55(a) of the Abkari Act and the matter is pending investigation. The petitioner applied for release of the vehicle to the Assistant Excise Commissioner, Wynad by Ext.P1 dated 23-12-1991. No order was passed thereon. By Ext.P2 dated 5-2-1992, the Excise Inspector, Sulthan Batheri Range informed the petitioner that a quantity of 4 to 5 litres of spirit was found in the mini lorry KBE 9639 belonging to the petitioner when it was seized on 14-10-1991, that a crime No. 101/91 under S.55(a) of the Abkari Act was registered and that the appellant/ petitioner is directed to show cause why the said vehicle should not be confiscated. The petitioner filed an explanation (Ext.P3) dated 29-2-1992. The petitioner filed an explanation (Ext.P3) dated 29-2-1992. He also filed an application before the joint Commissioner of Excise, Trivandrum for the release of the vehicle, Ext.P4 dated 3-6-1992. By Ext.P5 dated 3-7-1992, the appellant/ petitioner was informed by the Joint Commissioner of Excise that as, per Government circular (Ext.P6) dated 16-1-1992 the temporary release of the vehicle involved in smuggling of spirit cannot be considered. In these circumstances, the petitioner filed the original petition assailing Ext.P6 circular as ultra vires and illegal and also for the issue of a writ of mandamus directing the respondents to release the vehicle atleast on furnishing bank guarantee. The learned single judge directed the release of the vehicle to the petitioner on furnishing bank guarantee for a sum of Rs.3 lakhs. The petitioner objects to the conditions imposed for the release of the vehicle as the amount to be furnished as bank guarantee is stated to be much above the real value of the vehicle and so unworkable and meaningless. 3. Mr.K. Divakaran Nair, counsellor the appellant, very vehemently argued that what was given by the right hand has been taken away by the left hand; the vehicle has been ordered to be released by the learned single judge, but the condition imposed is so harsh, meaningless and oppressive, in that for a vehicle worth Rs.75,000/- it is imprudent and meaningless to furnish a bank guarantee for Rs.3 lakhs. Counsel also submitted that the refusal to release of the vehicle by the Joint Excise Commissioner in Ext.PS solely based on Ext.P6 circular is unreasonable and illegal. According to him, Ext.P6 circular is ultra vires and illegal. To re-enforce this argument, counsel for the appellant referred to S.55(a) read wjthS.66of the Abkari Act. It was argued that when an offender is convicted or acquitted, but the Magistrate decides that anything is liable to confiscation, the Magistrate may give the owner of the thing to be confiscated an option to pay in lieu of confiscation, such fine as the officer thinks fit. On the above lines, the argument proceeded to highlight the point that an option should be given to the offender or the accused who may opt for payment of fine; at any rate confiscation is not mandatory and instead of confiscation, a fine which may ordinarily be equal to the value of the vehicle, can be imposed normally. 4. On the above lines, the argument proceeded to highlight the point that an option should be given to the offender or the accused who may opt for payment of fine; at any rate confiscation is not mandatory and instead of confiscation, a fine which may ordinarily be equal to the value of the vehicle, can be imposed normally. 4. We are of the view that the entire argument is based on a misconception of the relevant statutory provisions. We shall extract S.55(a) and the relevant portions of S.66 and S.67B (1) and (2) of the Abkari Act (Act 1 of 1077): "55. For illegal import, etc.:-Whoever in contravention of this Act or of any rule or order made under this Act or of any licence or permit obtained under this Act, (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or shall on conviction before a Magistrate be punished (1) for any such offence, other than an offence failing under clause (d) or clause (e), with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees:" "66. Confiscation how ordered:--When the offender is convicted or when the person charged with an-offence under this Act is acquitted by the Magistrate decides that anything is liable to confiscation, such confiscation may be ordered by the Magistrate. Whenever confiscation is authorised by this Act, the Magistrate ordering it may give the owner of the thing liable to be confiscated an option to pay in lieu of confiscation, such fine as the officer thinks fit." 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, produce 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 sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of I hat 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 receivable or package, the authorised officer may also order confiscation of all contents thereof." 5. Ext.P2 is the notice issued by the concerned officer in exercise of the powers vested in him under S.67B of the Act In this case we are not concerned with the exercise of the power by a Magistrate. So,S.55(a) read with S.66 of the Act, on which great reliance was placed by counsel for the appellant, has no relevance. Ext.P2 dated 5-2-1992 issued by the Excise Inspector itself proceeds on the basis that it is a proceeding under S.67B of the Act. The provisions of S.67B of the Act will apply notwithstanding any other provisions contained in the Act or in any other law for the time being in force. It is true that the power vested in the concerned officer under S.67B of the Act is permissive and not obligatory. The discretionary power vested in the officer by the said section is one to be exercised fairly and honestly consistent with the public policy discernible from the provisions of the Act Once it is clear that the proceedings for confiscation is not one under S.66 of the Act, the main argument of the appellant's counsel, that the owner of the vehicle will have an option to pay fine in lieu of confiscation, falls to the ground. As to whether confiscation should be ordered in exercise of the powers under S.67B of the Act depends upon the facts and circumstances of each case. In this view of the matter, we hold that the plea of the appellant, that the owner of the vehicle has got an option to pay fine and in that perspective the learned single judge was in error in ordering to furnish bank guarantee for rupees three lakhs, has no foundation. 6. In this view of the matter, we hold that the plea of the appellant, that the owner of the vehicle has got an option to pay fine and in that perspective the learned single judge was in error in ordering to furnish bank guarantee for rupees three lakhs, has no foundation. 6. We are now concerned with Ext.P6 circular issued by the Government. The said circular is to the following effect: "Govt, Circular No.8824/G2/91/TD, dt.16-1-92 from Chandrasekhara Babu, Addl. Secretary to Govt., Taxes (G) Department, Thiruvananthapuram to the Asst. Excise Commissioners. Sub:--Abkari - Release of seized vehicles involving smuggling of spirit-instructions issued. It has come to the notice of Government that vehicles involved in smuggling of spirit, which are later, released on Bank guarantee are either being reused or likely to be reused for similar activities like smuggling of spirit. In order to avoid this practice, or possibility, the Asst. Excise Commissioners are hereby directed that release of such vehicles on Bank guarantee -- especially the tanker lorries seized in connection with smuggling of spirit should be stopped forthwith. All Asst. Excise Commissioners are also instructed that cases seized or registered against such vehicles should be disposed of and formal orders issued immediately on a priority basis. Sd/- Addl. Secretary to Govt." Considering the public policy discernible from the Abkari Act and the menace that is caused in smuggling of spirit, the Government has stated that the release of the vehicle oftentimes involved their re-use for similar activities like smuggling of spirit etc. In order to avoid smuggling activities and to check repetition or possibility of such activities, Government took a policy decision that the release of such vehicles on furnishing bank guarantee should be stopped forthwith. The power exercised under S.67B of the Act is permissible and not obligatory and a very wide discretion is vested in the statutory authority. But, pending the adjudication, the release of the vehicle as an interim measure has its own hazards. If the Government on the basis of I experience in working out the provisions of the Act has taken a policy decision, that the ; same vehicle involved in smuggling activities at one time is being re-used for similar activities once it is released, and so cannot be released pending adjudication, it cannot be said that the direction given inExt.P6 circular is in any way unauthorised or illegal. Viewed from the larger public interest and the public policy discernible from the Kerala Abkari Act (Act 1 of 1077), we are of the view that the guidelines issued in Ext.P6 to be applicable for the interim period cannot be in any way attacked as ultra vires or illegal. The direction given therein has got nexus to the ultimate object to be achieved by the Act and the proceedings that have been initiated in exercise of the powers under S.67B of the Act. We hold that Ext.P6 circular is valid. It is based on public policy. It serves larger public interest. It cannot be attacked as unfair, illegal or ultra vires. It should be remembered that the guidelines in the circular is operative only for an interim period when confiscation proceedings are pending for final disposal. The argument that Ext.P6 is ultra vires and illegal is unacceptable. 7. Whatever may be our view regarding the release of the vehicle pending final adjudication, in the light of Ext.P6, the learned single judge having exercised the discretion by ordering the release of the vehicle on furnishing bank guarantee for a sum of rupees three lakhs, we do not think that as at present advised we should go into the merits of the said direction. The learned single judge has exercised the discretion in favour of the appellant and has ordered a conditional release of the vehicle. We do not find any illegality or infirmity in the condition attached to the release of the vehicle. We affirm the judgment of the learned single judge on that aspect also. 8. The writ appeal is without merit. It is dismissed.