Exts.P7 and P9 orders are under challenge in this writ petition.
2. The petitioner is the registered owner of a Maruthi Van bearing Registration No.KL5/E 9191 which was seized in Crime No.408/98 of Changanassery Police Station, registered for offences under Section 55(a) & (i) of the Abkari Act. Pending confiscation proceedings, the vehicle was temporarily released to the petitioner on furnishing bank guarantee for the value of the vehicle. This was followed by a confiscation order by the first respondent which was later confirmed by the 2nd and 3rd respondents by the appellate and revisional authorities vide Exts.P2 and P3 orders respectively. Exts.P1 to P3 orders were later upheld by this Court by Ext.P5 judgment.
3. Later, the petitioner received a notice dated 06.05.2009 from the first respondent, directing him to produce the vehicle before him within seven days from the date of its receipt. Petitioner appeared before the first respondent and submitted Ext.P6 request to invoke provision under Rule 4(1)(a) and (b) of the Kerala Abkari Act (Disposal of Confiscated Articles) Rules, 1996 and to release the vehicle permanently to W.P.(C)No.27916 of 2009 2 him on remitting its market value. However, later the petitioner received Ext.P7 order from the first respondent stating that the bank guarantee produced by the petitioner at the time of temporary release of the vehicle was forfeited and also the vehicle was ordered to be confiscated. The petitioner alleges that he immediately met the first respondent and enquired about Ext.P7. The first respondent informed the petitioner that he could not take a decision on the request of release of the vehicle on remittance of the market value, as provided under Rule 4(1)(a) and (b) of the aforesaid Rules. The stand taken by the said authorities was that only the authority who passed final orders can take a decision in the matter. Therefore the petitioner submitted Ext.P8 representation before the 3rd respondent. The same was rejected by Ext.P9 order. Thus, the petitioner has come up before this Court.
4. I have heard learned counsel for the petitioner and learned Senior Government Pleader.
5. The main argument advanced by learned counsel for the petitioner is that the respondents have no authority to insist on the production of vehicle after encashing the bank guarantee furnished by the petitioner for the market value at the time of temporary release. It was submitted by the learned W.P.(C)No.27916 of 2009 3 counsel for the petitioner that the petitioner was allowed to have the possession of the vehicle as per interim orders of this Court after the confiscation proceedings were finalised. It was also submitted that petitioner was not afforded an opportunity of being heard before passing Exts.P7 and P9 orders. This Court finds considerable course in the arguments advanced by the learned counsel for the petitioner that the right to get permanent release of the vehicle by depositing its value is a statutory right and the authority ought to have informed the petitioner about such a right. As rightly pointed out by the learned counsel for the petitioner, the confiscation authorities should have given such an option to the registered owner of the vehicle to get the benefit provided under Rule 4(1)(a) and
(b) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 in their confiscation orders.
6. To substantiate the arguments, the petitioner produced Ext.P10 which is one of the orders dated 23.03.2009 passed by the second respondent giving such option. Therefore this Court is of the definite view that, at any rate, the petitioner should have been given an option to claim the benefit provided under 4(1)(a) and (b) of the aforesaid Rules. Moreover, once the bank guarantee furnished by the petitioner has been encashed, the W.P.(C)No.27916 of 2009 4 respondent State cannot have the dual benefit of the proceeds of the bank guarantee as well as value of the vehicle. Therefore, on that account also the impugned orders call for an interference.
7. In the result, this writ petition is allowed. Exts.P7 and P9 are hereby quashed.
The first respondent is directed to reconsider the matter after affording the petitioner an opportunity of being heard. This exercise shall be completed by the respondent within a period of three months from today.
Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE AV