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Alex C.A., S/o. Antony Versus The Excise Commissioner And Others

2016 (5) TMI 433 - KERALA HIGH COURT

Confiscation of motor vehicle u/s 67B of the Abkari Act - Petitioner's vehicle being used by another person as an escort vehicle for another vehicle carrying certain contraband - Petitioner contended that his vehicle has not been used for committing any offence per se and he had no knowledge of or complicity in the alleged crime - Held that:- essentially going by the ratio of Assistant Excise Commissioner v. Paulson, which is a decision rendered by a learned Division Bench, I am of the view that .....

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ited by him at the time of his securing the interim custody of the vehicle. -Decided in favour of petitioner - WP (C). No. 26099 of 2011 - Dated:- 20-1-2016 - Dama Seshadri Naidu, J. For the Petitioner : Sri C. A. Chacko For the Respondent : T. R. Rajesh, Government Pleader JUDGMENT Heard the learned counsel for the petitioner and the learned Government Pleader, apart from perusing the record. 2. The petitioner, the owner of a motor vehicle, assails Ext.P5 order of confiscation passed by the sec .....

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In the course of time, the third respondent, exercising his powers under Section 67B of the Abkari Act (the Act), confiscated the petitioner's vehicle through Ext.P3 order. Aggrieved, the petitioner filed a statutory appeal and invited Ext.P4 order from the second respondent, who confirmed the third respondent's Ext.P3 order of confiscation. Further aggrieved, the petitioner has approached this Court. 5. Smt. Neethu G. Nadh, the learned counsel representing the learned counsel for the p .....

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se Commissioner v. Paulson 2009(1) KLT 959 and Nazer v. State 1996(1) KLT 321, the learned counsel has submitted that the petitioner be given the benefit of Section 67C (2) of the Act because he has neither knowledge of nor complicity in the alleged crime, concerning which the petitioner's vehicle was confiscated. 7. The learned Government Pleader, on the other hand, has strenuously opposed the petitioner's claims and contentions. He has submitted that the authorities could clinchingly e .....

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fabricated only as an afterthought. 9. Placing reliance on Subair v. Assistant Excise Commissioner 2008(1) KLT 493 and Sajin v. Assistant Excise Commissioner 2009(2) KLT 389, the learned Government Pleader has submitted that the use of vehicle as an escort to another vehicle actually carrying the contraband is a composite ingredient of the transaction. In that sense, according to the learned Government Pleader, it can safely be concluded that the petitioner's vehicle has also been used for c .....

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g contraband; however, it was allegedly used as an escort. 12. A perusal of Ext.P3 order reveals that the petitioner, despite his plea that he let out the vehicle on the strength of an agreement, could not produce a copy of the said agreement before the primary authority. The fact, nevertheless, remains that the petitioner did produce before this Court Ext.P2, the alleged agreement, the veracity of which however is assailed by the respondents. 13. Further pertinent is the fact that in Ext.P3 ord .....

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no knowledge of or complicity in the alleged crime. 15. As has been rightly contended by the learned Government Pleader, in the absence of producing at the earliest point of time the alleged agreement between the petitioner and the accused in the crime despite pleading to that effect, in the ordinary circumstance, the adjudicatory authority would be justified in drawing an adverse inference against the petitioner's innocence-which the third respondent did. 16. In Subair (supra), the facts a .....

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rs in carrying the contraband. 17. The learned single Judge in paragraph 10 of the aforesaid decision held: "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 .....

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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 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 .....

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ore, the motor cycle cannot be taken out of the sweep of S.67B of the Act." (emphasis supplied) 18. Further, in Sajin (supra), the liquor was seized while being taken to a vehicle parked nearby, ostensibly, with a view to transporting it using the said vehicle. In the said factual background, the owner of the vehicle has contended that the liquor was not seized from the vehicle and that the provisions of Abkari Act did not get attracted to the case on hand. In that context, another learned .....

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le Judge, the owner of the vehicle, under those circumstances, is entitled to the benefit of Section 67C (2) of the Act. 20. In Paulson (supra), the facts are that the police seized a lorry with Indian Made Foreign Liquor; one person was arrested on the spot. Four of the persons who engaged in loading the liquor, however, escaped from the scene using a getaway car, which was later seized and confiscated. In the said factual backdrop, having examined Section 67B of the Act, a learned Division Ben .....

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