Petitioner is the registered owner of a jeep bearing registration No.KRK-7617. The said jeep which was driven by another person met with an accident on 24.6.2001. The Sub Inspector of Police, Chalakkudy, who visited the accident site on the said day, seized the jeep under a mahazer and registered Crime No.303/2001 under Sections 55 (a), 58 (G) and 8 of the Kerala Abkari Act 1 of 1077 (hereinafter referred to as the 'Act'). The crime was registered against the persons who were in the jeep at the time of accident, namely, the driver and another person. It is stated in the writ petition that the criminal case against the said two persons who were in the jeep at the time of the accident ended with their acquittal. 2. The proceedings that are impugned in the present writ petition are those that were initiated against the petitioner who is the registered owner of the jeep that met with the accident. Against the order dated 9.6.2003 of the 3rd respondent which directed confiscation of the vehicle under Section 67B of the Act, the petitioner preferred an appeal before the 2nd respondent. The said appeal was rejected by Ext.P1 order dated 1.4.2004. Although the petitioner preferred a revision petition against the said order of the 2nd respondent before the 1st respondent, the said revision petition was not entertained and it was dismissed as not maintainable by the 1st respondent vide Ext.P3 order. In the said order, it is pointed out that pursuant to a decision of the Supreme Court it was settled that registered owners have no right to file revision applications before the Excise commissioner under Section 67F of the Act and that the power of the Excise Commissioner was only in respect of suo motu revisions which had not been invoked in the instant case. Subsequent to Ext.P3 order, Ext.P4 notice was issued to the petitioner bringing to his notice the fact that the vehicle that was confiscated pursuant to the order of the 3rd respondent was now proposed to be brought to sale at an auction. On receipt of Ext.P4 notice, the petitioner preferred this writ petition challenging the order dated 9.6.2003 of the 3rd respondent, Ext.P1 appellate order of the 2nd respondent and Ext.P4 notice issued by the 3rd respondent.
3. I have heard Adv.Sri.Unni Kappan appearing on behalf of the petitioner as also the learned Government Pleader on behalf of the respondents. The main contention urged on behalf of the petitioner is that the order dated 9.6.2003 of the 3rd respondent as also the appellate order of the 2nd respondent suffer from an error of law apparent on the face of record insofar as there is no finding of fact that would implicate the petitioner in an offence that would attract the provisions of Section 67B of the Act. He would point out that even in Ext.P1 appellate order, the appellate authority notices the fact that in the mahazer, the fact recorded is that there was a receptacle of 10 litre capacity which contained 500 ml of arrack which was found lying near the vehicle that met with the accident. There is nothing in the mahazar to show that the said receptacle containing arrack was inside the vehicle at the time of accident. The case of the respondents is that it is very unlikely that the jeep that met with the accident overturned and came to rest near the receptacle which was found in the vicinity of the jeep. The authorities seem to have assumed that the receptacle in question fell out of the jeep when it met with the accident. This assumption of fact is also the basis of the subsequent finding regarding commission of the offences attracting the provisions of Section 67B of the Act. Learned counsel therefore vehemently urges that insofar as the necessary preconditions for invoking the powers under Section 67B of the Act did not exist in the instant case, the orders passed by the 3rd respondent and the 2nd respondent in appeal are vitiated by a patent non-application of mind and error of law apparent on the face of the record. Per contra, the learned Government Pleader would submit that the matter has been elaborately considered by the 3rd respondent as also by the 2nd respondent in appeal and there is no basis for interfering with the orders of the said authorities. It is also pointed out that at any rate, the mere acquittal of the other persons, who were the accused in the criminal proceedings, will not automatically exonerate the petitioner from the proceedings initiated against him by invoking the provisions of Section 67B of the Act.
4. I have considered the submissions on either side. Section 67B of the Act empowers the authority under the Act to seize and detain property which have been found involved in the commission of any offence under the Act. In the instant case, the detention and subsequent confiscation of the vehicle was in connection with an allegation that the vehicle was used for illegal transportation of arrack. The facts of the case as borne out from the order of the 3rd respondent as also the 2nd respondent appellate authority would clearly reveal that the factum of transportation of the arrack in the vehicle was never established at any stage. The authorities merely proceeded on a presumption that it could have been the case that the receptacle containing arrack, that was found near the vehicle that was involved in the accident, had in fact fallen out of the vehicle at the time of the accident. This however is only a presumption that is drawn by the adjudicating authority as well as the appellate authority for, understandably, there is no such fact recorded in the mahazer prepared by the police authorities who visited the site immediately after the accident. It is therefore evident that the offence that is alleged to have been committed using the vehicle was never actually established, and therefore, the invocation of the provisions of Section 67B of the Act for confiscating the vehicle has necessarily to be held illegal. In this view of the matter, I quash the order of confiscation No.R.8A-5109/01 dated 9.6.2003 of the Assistant Excise Commissioner, Ext.P1 order of the 2nd respondent as also Ext.P4 notice issued consequent to the said two orders and allow this writ petition. No costs.
A.K.JAYASANKARAN NAMBIAR JUDGE prp