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2008 DIGILAW 335 (KER)

Shaiju v. Assistant Excise Commissioner

2008-06-17

ANTONY DOMINIC

body2008
Judgment :- Petitioner is the registered owner of a Hero Honda motor cycle bearing Regn. No. KL-7 AP 9646, which was seized from him following his involvement in CR NO.5/05 registered under the Abkari Act on the allegation that the vehicle was used for the transportation of illicit arrack. The motor cycle was eventually ordered to be confiscated by the 1st respondent as per his order dated 22/3/2007. Petitioner thereafter filed an appeal before the 2nd respondent and by Ext.P1 order dated 29/5/07, the appeal was rejected, but it was ordered that the vehicle be released to the petitioner on his paying the market value of the vehicle. It is stated that he could not comply with the condition imposed in Ext.P1 and therefore the vehicle continued in the possession of the respondents. 2. Subsequently, the petitioner was informed by the 1st respondent, by Ext.P2 letter dated 16/10/2007, that if he did not deposit an amount of Rs.22,500/-within 7 days, the vehicle will be sold and that the value will be deposited with the Government. Petitioner submits that in the meantime by Ext.P3, the judgment rendered by the Additional Sessions Judge (Adhoc II) Ernakulam in SC NO.143/07, the petitioner and the other accused were acquitted. It is contended that on his acquittal by Ext. P3, the confiscation of the vehicle as confirmed by Ext. P1 has been rendered illegal. Petitioner contends that as his innocence stands upheld by Ext.P3 judgment of the Sessions Court, Exts. P1 and P2 are liable to be quashed and the motor cycle is liable to be released to him. 3. The respondents, on the other hand contended that the acquittal of the petitioner was not an honourable one, but was only one giving benefit of doubt. It is contended that in any event, prosecution for the offence under the Abkari Act for which he was charge sheeted in S.C. No. 143/07 and the proceedings for confiscation of the vehicle that was involved in the offence, are independent and separate. According to them, the outcome of the Sessions Case has no bearing on the confiscation proceedings and therefore acquittal of the petitioner will not render the order of confiscation illegal. 4. I have considered the submissions made by both sides. Petitioner is right in his contention that by Ext.P3 judgment, the Sessions Court which tried him in Sessions Case NO.143/07 acquitted him and the other accused. 4. I have considered the submissions made by both sides. Petitioner is right in his contention that by Ext.P3 judgment, the Sessions Court which tried him in Sessions Case NO.143/07 acquitted him and the other accused. However a reading of the judgment discloses that the court held that the prosecution had not succeeded in connecting the accused persons with the contraband articles. For that reason, holding that the prosecution has failed to establish the case against the accused persons beyond reasonable doubt, the accused were held not guilty, giving them the benefit of doubt. Thus, the fact that the contraband articles were seized from the vehicle and that the seizure was from Hero Honda motor cycle bearing Regn.No.KL7 AP 9646 belonging to the petitioner are not matters of dispute. Then what remains is the effect of Ext.P3 judgment, acquitting the petitioner giving him the benefit of doubt, on the order of confiscation of the vehicle and its confirmation by the Appellate Authority. 5. Confiscation of a vehicle involved in an Abkari offence is ordered under Section 67(B) of the Abkari Act. Section 67B(1), in so far as it is relevant provides that notwithstanding anything contained in the Act or in any other law for the time being in force, where any liquor, found or any vessel, or other conveyance used in carrying the same is seized and detained under the provisions of the Act, the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government. Section 67B(2) provides that where the authorised officer is satisfied that an offence has been committed in respect of or by means of the property and that such property is liable for confiscation, such officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property. 6. From the above, it can be seen that the section opens with a non obstante clause and it also provides that irrespective of whether prosecution is instituted for the commission of such offence or not, the authorised officer may exercise his power of confiscation. Legislature has used the non obstante clause and specifically provided that the section will have overriding effect on the other provisions in the Act, so that the Authorised Officer is entitled to proceed with confiscation proceedings dehors the other provisions of the Act. Legislature has used the non obstante clause and specifically provided that the section will have overriding effect on the other provisions in the Act, so that the Authorised Officer is entitled to proceed with confiscation proceedings dehors the other provisions of the Act. Thus the powers under Section 67B are independent of the penal provisions contained in the Abkari Act. Therefore, it is evident that irrespective of whether the accused is prosecuted or not for the offence involved and irrespective of its outcome, in view of the non obstante clause contained in Section 67(B), a vehicle involved in an abkari offence is liable for confiscation. 7. I have also noticed that a similar provision in the Forest Act, 1961 namely 61(A) has come up for interpretation before this court in case of Sasidharan v. Forest Range Officer (1999(2) KLT 836) where a learned judge of this court has held that officers exercising powers under Section 61(A) may proceed with confiscation proceedings independent of the powers conferred on the Magistrate under the said Act. In my view the dictum laid down in the aforesaid judgment applies to the case on hand. 8. For these reasons, I do not find any merit in the contentions raised by the learned counsel for the petitioner. Writ petition is only to be dismissed and I do so.