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2009 DIGILAW 287 (KER)

Sajin v. Asst. Excise Commissioner

2009-03-24

S.SIRI JAGAN

body2009
Judgment: The petitioner is aggrieved by the original, appellate and revisional orders in proceedings for confiscation of a vehicle under the Abkari Act on the finding that vehicle was used for illegally transporting foreign made foreign liquor. The vehicle was seized for unlawful transportation of 88 bottles of foreign made foreign liquor containing 88 litres of liquor. By Ext.P3, the Assistant Excise Commissioner ordered confiscation of the vehicle on the ground that the vehicle has been used for unauthorisedly transporting 88 bottles of foreign made for foreign liquor. The petitioner’s appeal was dismissed by Ext.P4 order and revision also met with the same fate, by Ext.P5. 2. The primary contention of the petitioner is that the liquor was not seized from the vehicle which was ordered to be confiscated. The petitioner submits that the seizure of the liquor and vehicle was at the Changanacherry Railway Station. According to the petitioner, the liquor was on the platform of the Railway station when the seizure was effected and the vehicle was only parked nearby. The petitioner contends that to the show cause notice issued to the petitioner in the confiscation proceedings, the petitioner filed Ext.P2 reply taking the specific contention that the liquor was not seized from the vehicle and he also requested for summoning the Circle Inspector of Police, Police constables and independent witnesses in the mahazar prepared by the police, for being examined as witnesses in the confiscation proceedings to prove that the liquor was not seized from the vehicle. However, that was not allowed, which amounts to violation of principles of natural justice, which itself is sufficient to set aside the entire proceedings. 3. I have heard the learned Government Pleader also, who supports the impugned orders. 4. I have considered the rival contentions in detail. 5. Certain facts are not disputed by the petitioner. They are:- (1) 88 bottles of foreign made foreign liquor were being transported from Chennai by the petitioner. (2) The petitioner had no permit to transport or licence to sell the liquor. (3) It was unloaded at the Changanacherry Railway Station. (4) The vehicle, which was directed to be confiscated, belongs to the petitioner and was parked near the contraband goods. According to the petitioner, the liquor was seized before it was boarded on the vehicle and therefore, the vehicle was not liable for confiscation. 6. (3) It was unloaded at the Changanacherry Railway Station. (4) The vehicle, which was directed to be confiscated, belongs to the petitioner and was parked near the contraband goods. According to the petitioner, the liquor was seized before it was boarded on the vehicle and therefore, the vehicle was not liable for confiscation. 6. It is true that in Ext.P2 explanation to the show cause notice issued in the confiscation proceedings, the petitioner took the contention that since the liquor was not seized from the vehicle, the vehicle was not liable to be confiscated and had requested the Assistant Excise Commissioner to summon the Circle Inspector of Police, Police constables and independent witnesses in the mahazar for examination. But from Ext.P3 order of confiscation it does not appear that the petitioner had raised such a contention at the time of hearing. The petitioner would argue that he had raised that contention which was not considered. He also admits that he had not also offered himself as a witnesses first, to discharge the burden cast on him by Section 67C(2) of the Abkari Act. Again from Ext.P4 appellate order also, it is not revealed that the petitioner had raised a contention before the appellate authority to the effect that his request for summoning the police officers as witnesses was not considered by the original authority. The petitioner would assert that in the appeal memorandum the petitioner had raised such a contention. But the appellate authority does not mention about any such contention in Ext.P4. The petitioner has also not cared to produce a copy of the appeal memorandum before me. Of course Ext.P5 order in revision refers to such a contention. I am of opinion that the petitioner should have first offered himself as a witness to prima facie prove such a contention before he can raise non-summoning of the police officers as a valid ground for challenging Ext.P4. I find that the petitioner had not offered himself as a witness to prove that the liquor was not seized from the vehicle. Certainly 88 litres of foreign made foreign liquor could not have been, by any stretch of imagination, for personal consumption of the petitioner. The petitioner had no case that he had any licence to sell foreign made foreign liquor. He also has no case that he had any permit to transport liquor. In Ext.P4, the Addl. Certainly 88 litres of foreign made foreign liquor could not have been, by any stretch of imagination, for personal consumption of the petitioner. The petitioner had no case that he had any licence to sell foreign made foreign liquor. He also has no case that he had any permit to transport liquor. In Ext.P4, the Addl. Excise Commissioner has stated thus: “It was contended by the counsel that the contraband items were not seized from the vehicle as claimed by the Police. From the records like FIR, Scene mahazar etc., it is seen that the FMFL was seized from the van itself along with other foreign goods. There is no reason whatsoever to support that the PMFL was not seized from the van.” Even otherwise, for reasons hereinafter stated, even assuming that the liquor was not seized from the vehicle itself, that cannot affect the validity of the orders passed. 7. At least he admits that the liquor was seized from near the vehicle. The vehicle also admittedly belonged to him. He could not have carried the 88 bottles of liquor physically by himself without some mode of transportation, which only was the vehicle in question. Therefore, he tacitly admits that his intention was to transport the contraband liquor in the vehicle and but for the seizure in the normal course, he would have transported the liquor in the vehicle in question. If that be so, I do not think that the inference that the liquor was in fact seized from the vehicle is not a perverse conclusion. 8. In this connection I note that in Subair v. Asst. Excise Commissioner, (2008 (1) KLT 498), a learned judge of this Court had taken the view that when a motor cycle owned by the driver of the mini lorry carrying spirit was escorting the lorry, the act of escorting is a composite ingredient of transaction which can be called as “used in carrying” the contraband article. In that decision, in paragraph 10, the learned Judge held thus: “10. Following the aforesaid Bench decision, a conveyance is said to be ‘used’ for carrying the contraband articles if the person who actually effects such transportation has, at least, some degree of actual, though minimal, control over the operation of the vehicle. In that decision, in paragraph 10, the learned Judge held thus: “10. Following the aforesaid Bench decision, a conveyance is said to be ‘used’ for carrying the contraband articles if the person who actually effects such transportation has, at least, some degree of actual, though minimal, control over the operation of the vehicle. In the case in hand, the petitioner is the first accused in the criminal case and was found to be driving the lorry carrying the contraband. He is the registered owner of the motor cycle which was found escorting the lorry. He also does not deny that he was the full owner and in complete control of the user of the motor cycle in question. The rider of the motor cycle escaped into the forest under the cover of darkness. The petitioner does not disclose the identify of the rider, may be because, he is privileged in that regard on account of being the accused in the criminal case. The petitioner does not have a case that the motor cycle that belongs to him was casually behind the lorry driven by him. The registration particulars of the lorry that was being driven by him. The registration particulars of the lorry that was being driven by the accused, the writ petitioner were bogus. In the said circumstances, it can be safely concluded that the motor cycle that was escorting the lorry is a conveyance that was used in the carrying of the contraband in the lorry, by being used as an effective escorting vehicle in the act of carrying the contraband in the lorry. Such escorting is not segregable from the factum of carrying the contraband in the lorry. The act of escorting a lorry carrying a contraband, as in this case, is a composite ingredient of the transaction which can be called as “used” in carrying. The degree of control that the petitioner had over the operation of the motor cycle is such that he had complete control over the destination to which the lorry and the motor cycle escorting it were to reach and the route along which they should ply. The degree of control that the petitioner had over the operation of the motor cycle is such that he had complete control over the destination to which the lorry and the motor cycle escorting it were to reach and the route along which they should ply. Therefore, the motor cycle cannot be taken out of the sweep of S.67B of the Act.” I am in respectful agreement with the ratio of that decision and I am of opinion that the said principle can be extended to the fact situation in this case also. Even if the contention of the petitioner that the liquor was not seized from the vehicle but only from the platform near the vehicle is correct, it is not disputed that the petitioner had absolute control both over the liquor as well as the vehicle. Therefore, even going by the contention of the petitioner, the obvious intention of the petitioner was to transport the liquor in the vehicle and in furtherance of that intention the contraband liquor was being brought towards the vehicle for loading, during which process only the seizure was effected. But for the seizure, the petitioner would certainly have used the vehicle for carrying the contraband liquor. Therefore, the act of bringing the liquor near the vehicle for transportation in the vehicle at which time the same was seized as admitted by the petitioner is a composite ingredient of the transaction which can be called as ‘used in carrying the contraband.’ In that view, the vehicle can be safely be concluded as ‘used in carrying’ the liquor. Construed that way, the alleged failure on the part of the Assistant Commissioner in not summoning the police personnel who seized the liquor and the vehicle to prove that the liquor was seized from the platform also pales into insignificance as a ground for challenging the confiscation, in so far as even if the allegation that the liquor was seized from the platform is true as alleged by the petitioner, the confiscation cannot be validly challenged on that ground. In the above circumstances, I am not inclined to countenance the contention of the petitioner that the vehicle in question is not liable to be confiscated. Accordingly, the original petition is dismissed.