Nazer v. State — 1995 DIGILAW 362 (KER)

Judgment :- V.V. Kamath, J. Vehicle found carrying contraband is liable to confiscation. The consequence is the owner suffers. If he has knowledge and if it can be inferred, there is no further question. Actiopersonalise nisi mens cit rea is the golden thread maxim. In regard to offences known as statutory application of the maxim certainly moulded in the context and added to it, if the statute concerned creates a presumption of knowledge, the court is called upon to consider interplay its discharge on examination of factual matrix. 2. These are aspects requiring consideration and examination in the context of confiscation of Motor Vehicle No. KBF 4316 by the order (Ext. P3) dated 5.3.1994 by the Assistant Excise Commissioner, Ernakulam (respondent No. 1) and confined in appeal by the order dt. 6.6.1994 by the Joint Excise Commissioner, Thiruvananthapuram (respondent No. 3) as per the provisions of the Kerala Abkari Act. As the undisputed position is that the petitioner is the owner and the vehicle from the date of its seizure on July 13,1993 is with the respondents, this petition challenging confiscation was taken up for hearing and final decision and is being decided by this judgment. 3. The material on record presents the following factual matrix. The Motor Vehicle No. KBF 4316 is a public carrier in goods. Permit was entrusted with the driver - one Jani. The vehicle was seized by the Palluruty police on July 13,1993 at 7.55 p. m. for transportation of spirit and a crime (C. R. No. 46/1993) was registered on the basis of occurrence report as Jie driver could not be intercepted. The vehicle was produced before the Mattancherry Excise Range Officer on the next day for further action, as per the occurrence report. It was seized under seizure memo - mahazar. 4. What is recorded in the seizure memo can only remind one of the character and role of the patrolling police shown frequently in the Indian films i n the context. It is as follows: "On coming to know from reliable sources that tempo van bearing registration No. 4316 proceeding towards Palluruty side on the Thoppumpady - Cherthala National Highway with illicit spirit, myself and Shri. Tomy Sebastian, Sub Inspector of Kochi Kasba Police Station, HC4966, PCs 4264,4823 DVR-HC 5617 together started inspecting the vehicles standing in front of Kochi Kasba Station. While so at about7.45 p.m. Tempo van bearing registration No. KBF 4316 was seen driven from north to south. On seeing the same in spite of the direction to stop the vehicle, when (lie vehicle proceeded without stopping, myself and the party chased vehicle in a jeep. bearing registration No. KBF4020. When the other vehicle reached in front of the Binny Company at Palluruthy, the tempo driver stopped the vehicle and ran away." The Chief Circle Inspector of Police, Palluruthy Police Station, a Sub-Inspector of Police, three members of constabulary and the driver of the police jeep, chased in a jeep and could not intercept and arrest the driver. A cock and bull story of obvious topography is considered, and that too within a very short distance from the place - Kochi Kasaba Station - where it was intercepted and ordered to be stopped. No wonder. All members of this patrolling party, if acting on reliable prior information, need to be booked and censured properly, for the manner in which they acted. 5. Reading of the seizure memo shows records of many irrelevant aspects exhibiting illustrations of prolixity. The R. C. book showed registration in the name of one Baby Jose Cherian, Arthingal House, Thrikalathur, Moovattupuzha, showing expiry of tax receipt on June 30.1993. Finding of contraband is detailed in the following manner: "On examining the tempo after removing the plastic cover it was seen that on the upper portion fish was packed with ice. On removing the upper portion it was seen that towards the bottom 8 barrels having 19 cros. length 183 cros. width having a capacity of nearly 200 Irs. were kept on widthwise basis and 3 barrels on lengthwise. On opening the said barrels it was seen that these barrels were filled with some liquids. On smelling and tasting the said liquids on reliably understanding that the said liquid is spirit in the said barrels, 180 ml. each was taken as sample and were sealed for the purpose of sending for laboratory examination and the barrels were also sealed. The spirit will fetch a cost of nearly 80,000/- (eighty thousand)". 6. The present petitioner, on August 12,1993, filed O. P. No. 11007/1993 in this court. It is averred therein (on the basis of agreement dt. 6.5.1993 and goods carriages permit dt. 21.6. The spirit will fetch a cost of nearly 80,000/- (eighty thousand)". 6. The present petitioner, on August 12,1993, filed O. P. No. 11007/1993 in this court. It is averred therein (on the basis of agreement dt. 6.5.1993 and goods carriages permit dt. 21.6. 1993 - Exts P1 and P2 therein) that he is the lawful owner - registered with R. T. A., Ernakulam. It is further averred that the driver - Jani, S/o Bab Jan -respondent No. 3 therein - used to run the vehicle for hire in Mattancherry Market area and during fishing season, every day round the clock in Cochin Harbour. The petitioner happened to read in the newspaper that the vehicle was intercepted. He rushed to the police station to know that the vehicle was in custody of the Exise Inspector, Mattancherry, Reliance is placed on a complaint lodged by the petitioner (Ext. P3 therein) reporting efforts and failure to trace the absconding driver. It is contended, with reference to the application (Ext. P4 therein) dt. July 22,1993, to the Assistant Excise Commissioner, Ernakulam, that since the actual owner - petitioner - is not involved in any way in the offence, under the Abkari Act, the vehicle had to be returned, under the terms and conditions of the said Act. This O. P. No. 11097/1993 is disposed of by this court with the following order dt. September 23,1993: "I heard the petitioner's counsel and the Government Pleader. It is submitted by the Government Pleader that steps are being taken to confiscate the vehicle. Petitioner has already approached the authorities by filing application. According to the petitioner, the tempo van is now kept in open premises and, therefore, it is likely to be get damaged. I do not think that this is a fit case where the vehicle could be released on interim arrangement as the confiscation proceedings are pending. In the result, I direct the 1st respondent to pass appropriate orders in this regard within a reasonable time, atleast within a period of one month of the date of receipt of a copy of this judgment. Petitioner, being the owner of the vehicle, shall be given opportunity to present his case before a final order is passed. Original Petition is disposed of as stated above". 7. Petitioner, being the owner of the vehicle, shall be given opportunity to present his case before a final order is passed. Original Petition is disposed of as stated above". 7. The petitioner presented writ appeal No. 1400/93 against the above order in O. P. and Appeal Bench, on November 2,1993, passed the release order on the following conditions: " 1. The appellant must provide immovable property security for the value of the tempo vehicle, as assessed by a motor vehicle Inspector, to the satisfaction of the Assistant Excise Commissioner, Ernakulam. 2. The appellant should file an affidavit in the form of an undertaking before the said officer that he will not alienate the vehicle or otherwise dismantle any parts of the vehicle and that he will keep the vehicle in good repair pending disposal of the confiscation proceedings. 3. The appellant should also file an undertaking that he will make available the vehicle whenever required by the respondents". Thus it would be seen that this court passed order of release under the above conditions and contemplated confiscation proceedings were to the knowledge of this court, both in the O. P. as well as in the writ appeal. 8. It is in the above background of the earlier orders referred to above and the steps leading to the impugned order of confiscation would have to be considered. The events that followed would lead one to conclude that the order of this court in the writ appeal, as quoted above was circumvented by hastily passing the impugned order of confiscation. 9. In pursuance of the above order in writ appeal, the petitioner applied to the Assistant Commissioner of Exise, Ernakulam (respondent No. 1) who directed the Exise Inspector, Ernakulam (respondent No. 2) to get the vehicle valued by the Motor Vehicle Authorities and by a communication dt. 25.11.1993, (Ext. P2 to the petition) the Regional Transport Officer, Ernakulam, to value the vehicle. Then after more than a month, by memo dt. 29.12.1993, further step in valuation was taken up and the vehicle was valued at Rs. 82,000/- (as seen from Ext. P3 to the petition). Then, by communication dt. 5.1.1994, the petitioner was informed (Ext. RI (b)) as follows: "As per the direction of the Honourable High Court in O. P. No. 11097/93 - U You are hereby requested to receive the vehicle on production of the following documents. 1. Rs. 82,000/- (as seen from Ext. P3 to the petition). Then, by communication dt. 5.1.1994, the petitioner was informed (Ext. RI (b)) as follows: "As per the direction of the Honourable High Court in O. P. No. 11097/93 - U You are hereby requested to receive the vehicle on production of the following documents. 1. Rs. 82,000/-as costs of the vehicle or immovable property security for the value. 2. Bond as directed by the Honourable High Court." 10. It is necessary to state that in pursuance of the order of this court in writ appeal, the petitioner presented an affidavit dt. 10.12.1994 of undertaking (rl (c) to the counter of respondent No.1 to me petition) and further by a communication dt. 18.2.1995 signed by respondent No.1 on 24.2.1995, the petitioner is informed in the following manner: "You are therefore requested to comply with the directions of the Hon'ble Court in strict sense and furnish adequate landed property security amounting to Rs. 82,000/- along with necessary affidavit and undertakings for the release of the vehicle KBF. 4316 at an early date". In the above situation, when proceeding in pursuance of the order of this court in writ appeal was in progress, requiring compliance of the last communication (Ext. R1 (d) at the hands of the petitioner, the impugned order dt. 5.9.1994 was passed and it would have to be observed on the basis of aspects stated above and also, in addition, on the basis of the intrinsic material of the impugned order as well as the Appellate Order, that the implementation of the order of this court is thwarted at the hands of the respondents giving a nugatory effect to the order of this court by the impugned order of confiscation confined in appeal. 11. Along with the present petition, by C. M. P, No. 8465 of 1995, the petitioner prayed for release of the vehicle on production of solvency certificate of sureties mentioned therein, and by order dt. March 23,1995 this court (myself) passed an interim order as passed. It is also necessary to record that this court (Mohammed J.) by order dt. 28.11.94 in C. M. P. 18281/1994 has directed release of the vehicle at the earliest point of time. 12. The petitioner, even after these orders in his favour, had to approach this court again by C. M. P. 10206/1995 dt. It is also necessary to record that this court (Mohammed J.) by order dt. 28.11.94 in C. M. P. 18281/1994 has directed release of the vehicle at the earliest point of time. 12. The petitioner, even after these orders in his favour, had to approach this court again by C. M. P. 10206/1995 dt. April 1, 1995 for a direction to the respondents to comply with the order of this court. A review petition No. 920/95 was also filed by the respondent as regards order in C. M. P. No. 8465/1995 and therefore by the order dt. June 5,1995, all this was desired to be dealt with by me by my brother (Joseph J.). Notice was ordered and in view of the facts that appeared as stated above, the learned counsel were heard in detail on various aspects with an understanding of deciding the main petition itself. 13. The matter was argued threadbare on October 16 and 18,1995. The learnedcounsel for the petitioner urged that there is no material mat the petitioner had any knowledge that contraband was being carried in the vehicle when intercepted and he came to know of it only through the local newspaper and the driver had absconded. The learned counsel submitted that beyond occurrence report and seizuro-memo (mahazar) there is no material on record and all that can be seen therefrom is that an abandoned vehicle was seized. The learned counsel urged that the contents of the seizure memo presents a cinematographic version of a chase making it impossible to believe that the driver could escape within a short distance of a chase in a jeep by a police party that included the Circle Inspector, a Sub Inspector along with three members of the constabulary including the driver of the jeep. He submitted that inference based on suspicion and moral approach cannot replace the statutory requirement of knowledge on the part of the petitioner. The learned counsel submitted that this basic aspect has been ignored and not at all referred to in the orders confiscating the vehicle. The order of confiscation lacks requirement of this basic jurisdictional fact. The learned counsel urged that the vehicle is lying in custody of the respondents right form July 13, 1993, in spite of orders of this court, without any justification. 14. The order of confiscation lacks requirement of this basic jurisdictional fact. The learned counsel urged that the vehicle is lying in custody of the respondents right form July 13, 1993, in spite of orders of this court, without any justification. 14. The learned Government Pleader placed before me the entire file, especially the transactions of occurrence report and the seizure memo (mahazar), relevant portion of which is quoted hereinbefore. The learned Govt. Pleader had difficulties to urge on the basis of any material that petitioner's knowledge could be inferred in any manner from the material. A feeble attempt was made with reference to the topography that the place of residence of the petitioner being in the direction of Kakkanad to which from the bridge at Mattancherry the vehicle was chased and abandoned. A submission based on inference would never form a base of required proof of knowledge of the petitioner. Realising this position of total absence of material to infer knowledge of the petitioner, the learned Govt. Pleader relied on the statutory provisions of the Kerala Abkari Act. 15. In the first instance, reliance is placed on S.64 of the Act creating presumption. Reading the plain language of the said provision, it applies to a prosecution under S.55 of the Act. The undisputed position is that the matter relates to confiscation simpliciter by the statutory authorities wholly unconnected with the prosecution as, on facts, such a prosecution on the material cannot proceed against anyone and it has not so proceeded from 1993 till this day. Therefore, the only statutory provision that would govern the solicitations would be the provisions of S.67-B of the Act. The provision of S.67-C of the Act enact the procedure and it is necessary to reproduce the relevant provision in the context enacted by S.67-C (2) which is in the nature of an injunction to pass an order of confiscation by the competent authority, if the use of the vehicle is without the knowledge or connivance of the owner himself and the person in charge has taken all reasonable and necessary precautions against such use. The provision is as follows: "Without prejudice to the provisions of sub-section (1), no order confiscating any animal, cart, vessel or other conveyance shall be made under S.67 B if the owner of the animal, cart, vessel or other conveyance proves to the satisfaction of the authorised officer that it was used in carrying the liquor or intoxicating drug or the material, still, utensil, implement or apparatus or the receptacle, package or covering without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use". There is no dispute that the driver who has absconded is not traced and even then he will have to be identified as such at night by the members of the raiding party, assuming that he is traced. 16. The question of confiscation simpliciter has come up for consideration, firstly with regard to its discretionary power as seen from the word "may" in the Essential Commodities Act, 1955 with regard to the confiscation of the truck, before the Supreme Courts, on the basic of there being no indication of concurrence of the appellant-owner. Then, this decision is relied upon by this court, since the power under the Kerala Abkari Act is also held as discretionary as found by the use of the word "may". This court has observed as follows: "In the face of the language employed in S.67B (2), tile authorised officer is not obliged in each and every case to order confiscation. He has to exercise discretion in ordering the confiscation. The words 'may' indicates that he has a duty to consider the facts and circumstances of the case in determining whether it would be appropriate to order confiscation in the case before him. The power conferred on him to make such determination is not an arbitrary power. That could not be exercised by him according to his whims and fancies. No doubt, in the absence of any guidelines indicated in the section itself as to the circumstances under which he would be justified in ordering confiscation the discretion is wide. But even so the exercise of the discretion must be on proper and relevant considerations. That could not be exercised by him according to his whims and fancies. No doubt, in the absence of any guidelines indicated in the section itself as to the circumstances under which he would be justified in ordering confiscation the discretion is wide. But even so the exercise of the discretion must be on proper and relevant considerations. If an authorised officer takes the view that merely because commission of offence is proved and the conveyance is liable to confiscation under the Act he is obliged, irrespective of the facts of the case, to order confiscation such a view would be erroneous and unsustainable. S.67C is independent of S.67B of the Act. Sub-sec. (1) of Sec. 67C deals with the procedure to be adopted in passing an order of confiscation. S.67C (2) is in effect an exception to S.67B (2). When an authorised officer may otherwise order confiscation under S.67B (2) this could be avoided by the owner proving to the farmer's satisfaction dial the conveyance was used for carrying the liquor without the knowledge or connivance of the owner himself, his agent and the person in charge of the conveyance and that each of them had taken all reasonable and necessary precautions 1. AIR 1979 SC 1767 -SatSaiv. State of Haryana 2. 1982 KLT 518 - Vamadeyan v. State of Kerala (D.B.). 3. 1980 KLT 849 - Venkatachalapathy v. Asst, Excise Commr. against such use. What is important and relevant to notice is that it is not as if the only ground for an order declining confiscation is the proof of matters mentioned in S.67 C (2). In other words it is not to be taken that when an owner does not invoke S.67C there should be confiscation under S.67B. Independent of S.67C, S.67B operates to confer a discretion on the authorised officer to confiscate or not to confiscate. He has a duty to exercise such discretion on relevant considerations." 17. The learning Govt. Pleader, relied on an earlier decision of this Court`, relating to an offence tried under Sec. 55 of the Act and raising presumption. Even then the court has observed and noted that each case has to be examined with reference to the relevant facts. He has a duty to exercise such discretion on relevant considerations." 17. The learning Govt. Pleader, relied on an earlier decision of this Court`, relating to an offence tried under Sec. 55 of the Act and raising presumption. Even then the court has observed and noted that each case has to be examined with reference to the relevant facts. It is emphasised that the documents carried by the driver of the lorry who was none other then the petitioner-owner's brother, intending to carry potatoes, but the goods carried warp drums containing rectified spirit. In the present, case, assuming that presumption is raised on probability, knowledge and/or connivance, cannot be inferred against the petitioner, and his consistent say is not ruled out. 18. Therefore, on the basis of the material on record, the petitioner cannot be taken anyway closer to the liability as regards confiscation of the vehicle. Taking into consideration all facts and circumstance, the authority ought not to have used discretion to confiscate the vehicle in question. Knowledge and/or connivance cannot be inferred and in fact it is the position that there is no material to draw any inferences of it. The petitioner has stated from the beginning that he came to know of the seizure through its publication through the local newspaper only. The driver, it will have to be observed, was allowed by the police party to escape as the conduct on the basis of prior reliable information shows ridicule floating on the surface. On the basis of the agreement and its consequential endorsement on the permit established that the petitioner is the lawful owner of the vehicle. He had approached the authorities with a claim, and record and various orders referred to above show that the petitioner continuously made attempts to get the vehicle released in his favour. I have already that the respondents, to thwart the efforts of the petitioner, when proceedings were pending in pursuance of favourable orders directing release, hastened to proceed to confiscate the vehicle by the impugned order. This conclusion is strengthened on perusal and examination of the impugned order. 19. The impugned order (Ext. P4) proceeds to confiscate the vehicle on the basis that it is not the petitioner but one Shri Cherian was the registered owner and that too on the basis of the representation of Shri Sunny Jacob Cherian, the brother, that the vehicle was sold on 2-11-1987. 19. The impugned order (Ext. P4) proceeds to confiscate the vehicle on the basis that it is not the petitioner but one Shri Cherian was the registered owner and that too on the basis of the representation of Shri Sunny Jacob Cherian, the brother, that the vehicle was sold on 2-11-1987. When the agreement and the goods carriage permit were annexures to the earlier O.P. No. 11097/1993 to the knowledge of the Excise Authorities, the least that can be observed is that if not anything the older lacks the enacted bone tides on the part of the authorities. In addition, the requirements of knowledge and/or connivance do not appear to be present at all, not to speak of the position of law that the power is discretionary to be exercised on the facts of the case at hand. The order is cryptic and devoid of required considerations. 20. The appellate order (Ext. p6) of the Joint Excise Commissioner (respondent No.3) holding that the appeal filed is not maintainable is the caricature in the process. The order proceeds on the basis that the registered owner is one Bony George Cherian and he alone could be the legitimate appellant. The facts to the knowledge of the presenting officer who produced the files would make it clear that the petitioner throughout was making efforts to get release of the vehicle. Previous orders in the earlier O.P. No. 11097 of 1993 and W. A. No. 1400 of 1993 and reference to the various steps referred to earlier bear testimony. Apart therefrom, a bare perusal of the statutory provision' of appeal (see Sec. 67 E of the act) would show that an aggrieved person has a right of appeal. Appellate Authority (respondent No. 3) had no time and energy to see the merits in view of the unjustified short-cut to dismiss the appeal as not maintainable, with an observation as regards the remedy of revision before the Comissioner of Exercise, Board of Revenue. 21. No wonder then that the respondents through their counsel would plead for the consequence of alternative remedy of revision as a fetter to the exercise of powers under Art.226 of the Constitution of India, by reliance of some authorities in support. 21. No wonder then that the respondents through their counsel would plead for the consequence of alternative remedy of revision as a fetter to the exercise of powers under Art.226 of the Constitution of India, by reliance of some authorities in support. In my judgment, the record of efforts show that the petitioner has left, no stone unturned and as a result the vehicle is not with him right from July 13, 1993. The unjustified deprivation under the above-stated situations would justifiably will upon this court, and as I have done, not. to be controlled and guided by the alternative remedy of revision with the added consideration displayed by the two orders showing total lack of application of mind to the basic facts and jurisdictional requirement. The confiscation of the vehicle is totally unsupportable. For the above reasons, the petition succeeds. Impugned order dt. 5-3-1993 (Ext. P4) as confirmed by the appellate order dt. 6-6-1994 gets quashed and set aside. Accordingly, the respondents are forthwith directed to handover the motor vehicle No. KEF 4316 to the petitioner without any condition whatsoever. The possession of the vehicle shall be given to the petitioner, under a mahazar, recorded and countersigned by the authority handing over, together with a copy thereof. The respondents are directed to act forthwith, and the learned Govt. Pleader to intimate the concerned authorities accordingly and to report compliance. In the circumstance, parties are directed to suffer their own costs. Needles to state that all interlocutory petitions stand disposed of. Order accordingly.