Kerala High Court
P.Ravichandran vs The Excise Inspector on 17 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
TUESDAY, THE 17TH DAY OF JUNE 2025 / 27TH JYAISHTA, 1947
WP(C) NO. 13181 OF 2019
PETITIONER:
P.RAVICHANDRAN, AGED 49 YEARS,
23/100, VINAYAKA HOUSE, S.K.V.COLLEGE ROAD,
KANATTUKARA POST, THRISSUR.
BY ADV SHRI.K.V.GOPINATHAN NAIR
RESPONDENTS:
1 THE EXCISE INSPECTOR,
THRISSUR RANGE, THRISSUR, PIN - 680 001.
2 THE DEPUTY EXCISE COMMISSIONER,
THRISSUR, PIN - 680 001.
3 THE ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT),
THIRUVANANTHAPURAM, PIN - 695 039.
4 THE EXCISE COMMISSIONER,
COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM,
PIN - 695 039.
BY SENIOR GOVERNMENT PLEADER, SRI.E.G.GORDEN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.06.2025,
THE COURT ON 17.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner, who is stated to be the registered owner
and permit holder of the stage carriage bearing registration
No.KL-08 AT 7399, states that the afore stage carriage was
operating on the route Thrissur-Guruvayur-Kozhikode on the
basis of a valid permit. It is stated that on 22.03.2012 at
about 12.30 pm, when the stage carriage reached Thrissur,
the same was inspected by the 1st respondent, leading to the
discovery of 57 bottles of foreign liquor in four hardboard
boxes, and the vehicle, along with the conductor, were taken
into custody. The conductor pointed out that the four boxes
as above were loaded by a passenger from the Thenhipalam
University stop, stating that the same were containing
perfumes. A crime was registered on the above basis under
the relevant provisions of the Kerala Abkari Act, 1077
(hereinafter referred to as “the Act”). The vehicle was
released on the petitioner furnishing a bank guarantee for
Rs.2 lakhs pursuant to directions issued by this Court in
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W.A.No.786 of 2012. The proceedings were adjudicated in
connection with the confiscation of the vehicle, which led to
the issue of Ext.P6 order of confiscation. In an appeal filed
by the petitioner, Ext.P8 order was issued by the appellate
authority allowing the appeal and setting aside the order of
confiscation. However, suo motu steps were taken by the 4th
respondent, leading to the issue of Ext.P10 order cancelling
the findings contained in the appellate order referred to
above. The order at Ext.P10 was challenged before this Court
by filing W.P(C) No.9196 of 2013, leading to the issuance of
Ext.P11 judgment, setting aside the order impugned.
However, the State filed an appeal and by judgment dated
12.03.2018 in W.A.No.2608 of 2015, a Division Bench of this
Court found that insofar as Ext.P10 order was issued by an
authority not competent to do so, directed the matter to be
considered afresh by the 4th respondent himself and the
findings on merit by the learned Single Judge were vacated
so as to facilitate reconsideration, leaving open all the
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contentions of the respondent (petitioner herein). The
petitioner, thereafter, submitted a detailed written submission
at Ext.P13 and the 4th respondent issued Ext.P14 order dated
24.07.2018, ordering confiscation of the afore bus under the
provisions of Section 67B of the Act. It is in such
circumstances that the captioned writ petition is filed seeking
to challenge Ext.P14 order issued by the 4th respondent.
2. I have heard Sri. Harikumar, the learned counsel for
the petitioner, as well as Sri. E.G.Gorden, the learned Senior
Government Pleader for the respondents herein.
3. Sri. Harikumar, the learned counsel for the petitioner,
would contend that: –
i. The very initiation of the proceedings against the
petitioner was without any justification and arbitrary
with reference to Section 67B of the Act.
ii. He would contend that it is only when it is satisfied that
“an offence under the Act” has been committed, the
question of invoking the confiscation proceedings
arises. He would rely on the provisions of Section 64
regarding the commission of an offence to contend
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that the presumption thereunder would apply only
when there is “commission of an offence under the
Act”.
iii. He relies on the order issued by the Sessions Court on
31.10.2022 in Sessions Case No.747 of 2016 to
contend that insofar as the prosecution under the Act
has resulted in the acquittal of the accused – the
petitioner not being one among them- the very basis
for the confiscation steps goes and the impugned
proceedings requires to be set aside.
iv. He would also rely on the provisions of Section 67C of
the Act to contend that under no circumstances the
bus can be confiscated insofar as the vehicle was a
stage carriage- used as a public utility service. In
support of the afore, he relies on the judgment of the
learned Single Judge in C.M. Vijayan v. Assistant
Excise Commissioner and Ors. [ILR 1980 (1)
Kerala 491] as confirmed by the Division Bench of
this Court in Asst. Excise Commr. and Ors. v.
Vijayan [1981 KLT 366].
4. Per contra, Sri.Gorden, the learned Government
Pleader, would contend that: –
i. No sanctity can be placed on the findings of the Trial
Court, with reference to the confiscation proceedings
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under Section 67B. He relies on the judgment of the
learned Single Judge of this Court in Manoj v. State
of Kerala [2024 (4) KLT 98] in this regard.
ii. He would contend that the burden of proof is always
on the petitioner herein, with reference to the
principles laid down by the Division Bench of this
Court in Sub Inspector of Police v. Rajesh [2017
(4) KLT 374].
iii. He would rely on the afore judgment of the Division
Bench, also with reference to the benefit available to
the petitioner under Section 67C of the Act.
5. I have considered the rival contentions as well as the
connected records.
6. The first issue arising for consideration is the
contention raised by Sri.Harikumar, the learned counsel for
the petitioner with reference to Section 67B read with Section
64. He contends that insofar as the confiscation is ordered
as per Ext.P14 regarding the transportation and the criminal
case, the proceedings have to be set aside in the light of the
findings rendered by the Sessions Court as referred to above.
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However, I notice that a learned Single Judge of this Court in
Manoj v. State of Kerala (supra) has categorically found
that the results in the criminal case have no bearing on the
confiscation proceeding, and the acquittal of the accused in
the criminal case by itself will not render the confiscation
illegal. Therefore, I hold that the petitioner is not entitled to
succeed merely on the basis of the acquittal of the accused in
the criminal case.
7. As regards the second contention- the requirement
on the part of the authority under the statute to first of all
establish a prima facie case only upon which the burden would
shift to the petitioner, I notice that the Division Bench of this
Court in Sub Inspector of Police v. Rajesh (supra) has
found that the provisions of the statute being deterrent in
nature, the burden is always on the accused. When that be
so, I am of the opinion that the second contention raised by
the petitioner is also to be rejected.
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8. The last contention raised by Sri.Harikumar is with
reference to the provisions of Section 67C of the Act. Section
67C provides for the issuance of a show cause notice and the
adjudication thereunder with reference to confiscation under
Section 67B. Sub-section (2) thereto reads as under:-
“(2) Without prejudice to the provisions of sub-section
(1), no order confiscating any animal, cart, vessel or other
conveyance shall be made under section 67B if the owner
of the animal, cart, vessel or other conveyance proves to
the satisfaction of the authorised officer that it was used
in carrying the liquor or intoxicating drug or the material,
still, utensil, implement or apparatus or the receptacle,
package or covering without the knowledge or connivance
of the owner himself, his agent, if any, and the person in
charge of the animal, cart, vessel or other conveyance and
that each of them had taken all reasonable and necessary
precautions against such use.”
Thus, it is clear that if the owner of the vehicle is able to prove
the requirements under the afore sub-section, no confiscation
can be effected. The petitioner herein has specifically raised a
contention that the vehicle in question was admittedly a stage
carriage and that he was having very limited control over the
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passengers and the luggage brought by them and therefore
the benefit of Section 67C of the Act were to be extended,
since it is without his or his agent’s knowledge that the 57
bottles of foreign liquor happened to be transported in the
bus. In Ext.P13 written submission submitted before the 4th
respondent herein the petitioner has specifically pointed out
the essential difference in the nature and operation of a stage
carriage and a goods vehicle/contract carriage/taxi. However,
while passing the impugned order at Ext.P14, it is found by
the 4th respondent that the petitioner or his agent has not
taken any precautions as required by the law.
9. In this connection, I notice the judgment of the
learned Single Judge in C.M.Vijayan v. Assistant Excise
Commissioner and Ors. (supra) wherein, after referring to
the provisions of Section 67B read along with Section 67C,
this Court has found as under: –
“6. The Respondents have proceeded in this case as if in
the absence of any rule or law prohibiting the Conductor
from verifying the contents of the suitcase and the packet,
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he ought to have checked and verified the contents
thereof. It appears to me that law is just the opposite,
namely, that in the absence of a law empowering and
enabling a search of a person, and his personal effects, no
one can make a search of the body of a person and his
goods. Unauthorised interference with a citizen’s right to
carry his personal effects by searching them will amount
to an intrusion into his privacy and an invasion of his
personal liberty guaranteed by Article 21 of the
Constitution. It would also be an invasion of one’s right to
travel about, which again is a matter of personal liberty-a
compendious expression used in Article 21 to include
within itself all kinds and varieties of rights which go to
make up the personal liberties of a man other than those
dealt with in the several clauses of Article 19(1) of the
Constitution. See Kharak Singh v. State of U.P. A.I.R.
1963 S.C. 1295. Therefore, unless there is a procedure
established by law, and except in accordance with such
procedure, one cannot be deprived of the aforesaid
personal liberties. This means, so far as the case on hand
is concerned that unless the Conductor of the bus and/or
the other employees thereof have power conferred on
them by law to search the passengers and their goods,
they cannot do so. The Petitioner has a case that not only
no such power is conferred on any one of them, but under
the Motor Vehicles Rules, and, at any rate from a
commercial point of view, they have to behave properly
and in a good mannerly way towards the passengers,
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causing no annoyance and harassment to the travelling
public.”
In an appeal filed by the State against the afore judgment,
the Division Bench of this Court in Asst. Excise Commr. and
Ors. v. Vijayan (supra) has found as under:-
“8. The scheme of the Act, as disclosed by the provisions,
is that a seizure of the conveyance is contemplated and
authorised only if the competent officer finds that the
conveyance has been ‘used’ in carrying liquor, intoxicating
drug etc. in contravention of the provisions of the Act. It,
therefore, becomes necessary for us to consider when a
vehicle can be said to be ‘used’ in carrying contraband
liquor, intoxicating drug etc? In our opinion, a conveyance
can be said to be ‘used’ for carrying the contraband article
only if the person, who actually effects such
transportation, has at least some degree of minimal
control over the operation of the vehicle which may be
either by his having obtained it on loan from its owner or
on hire (as in the case of a taxi car or contract carriage or
vehicles taken on hire for private use including buses,
vans and private carrier vehicles or other similar
arrangement. In all such cases the person effecting the
conveyance will be in a position to exercise at least a
limited control as to the destination to which the vehicle
should be taken or the route along which it should ply etc.
In cases of this kind the vehicle will be liable for
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confiscation under S.67B of the Act on its being found to
carry contraband liquor, intoxicating drugs etc. unless the
owner, his agent or the person in charge of the
conveyance is able to show that he had taken all
reasonable and necessary precautions against such use.
It was submitted by the learned Advocate General
appearing on behalf of the appellants that in such cases it
is not correct to say that proof of mens rea on the part of
the owner / agent / person in charge of the conveyance is
a prerequisite for attracting liability to confiscation. There
is force in the above contention advanced by the learned
Advocate General.
9. The position is, however, entirely different in regard to
public passenger vehicles like stage carriages and vans
which are authorised to operate scheduled services on the
concerned routes on the strength of permits issued by the
road transport authorities. These vehicles are used only
for conveyance of passengers in general on the specified
routes. It would not be correct to say that the vehicle is
“used” for carrying any particular item of personal luggage
belonging to one of the passengers. The purpose for which
the vehicle is used is the operation of a passenger
transport service between the two termini specified in the
permit. The mere fact that any of the passengers
travelling in the bus or the van is found to have in his
possession some contraband article either concealed on
his person or kept in a suit case, package etc. carried by
him will not entitle the excise authorities to regard the bus
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or the van as a conveyance “used for carrying” such
contraband article. Hence confiscation of a bus or van
operating a scheduled passenger transport service on the
strength of a permit issued under the Motor Vehicles Act
is not contemplated or warranted by S.67B and it must
ipso facto follow that seizure of such bus or van is not also
warranted under S.34 of the Act even if it be found that
any of the passengers was carrying any contraband liquor
etc. Seizure of such a public transport vehicle while
operating a Scheduled service on the concerned route and
any order confiscating it would necessarily visit the public
with very serious inconvenience and we consider that it is
not reasonable to think that the legislature would have
intended to cause such dislocation of public transport
arrangements and serious inconvenience to the public by
empowering the seizure and confiscation of public
transport vehicles on the mere ground that contraband
article was found to be in possession of any of the
passengers travelling in such vehicles. We are also in
agreement with the view expressed by the learned single
Judge that there is neither authority nor any duty cast by
law on the conductor of a stage carriage vehicle to search
the articles of luggage belonging to the passengers with a
view to find out whether any contraband goods are being
carried by them.
10. In the light of the conclusion that we have reached
that powers under S.55 and 67B cannot be legally invoked
by the excise authorities against stage carriage buses and
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vans operating public passenger service on the strength
of permits granted by the road transport department it
automatically follows that the learned single Judge was
perfectly justified in quashing the orders impugned in the
two writ petitions. The writ appeals are accordingly
dismissed. While doing so we direct that in taking further
proceedings against the writ petitioner in OP No. 2258 of
1978 in pursuance of the directions contained in the
judgment of the learned single Judge the Assistant Excise
Commissioner, Cannanore shall have due regard to the
legal position explained in this judgment regarding the
non applicability of S.55 and 67B of the Act in relation to
the stage carriage bus operating a schedule service on a
route covered by a permit.”
Thus, the Division Bench of this Court has categorically found
that the provision of Section 67B cannot be invoked as against
stage carriages insofar as they are public utility services.
10. It is the afore principles laid down by this Court that
are sought to be relied on by Sri.Harikumar, on behalf of the
petitioner. However, I notice that in the afore judgment, the
contraband article has been seized from the “passenger” in
the vehicle. It is in that context that this Court found that the
contraband article was recovered from the passenger while it
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was being “carried by him”. Applying the afore to the facts
and circumstances of the case at hand, this Court notices that
the liquor was seen transported in the luggage compartment
of the bus. The orders issued do not show that the owner or
the person who is alleged to be the owner of the liquor was
travelling in the bus. In the statement of the conductor, he
admits that the articles were transported at the instance of a
3rd party that he was not aware of it and had been made to
believe that the articles were perfumes. Therefore, the fact
that the luggage was handed over to the person in charge of
the bus for transportation is admitted by the conductor. Once
the same is handed over, he is responsible for such
transportation, especially when he further admits that some
amounts were also handed over for such transportation.
Therefore, I am of the opinion that the conductor ought to
have exercised due diligence in the matter and he cannot seek
the benefit available under Section 67 C(2) of the Act. The
findings in the order issued by the Sessions Court – as regards
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the absence of the owner of the liquor in the bus – are also in
the same lines.
In such circumstances, I am of the opinion that the
petitioner is not entitled for the reliefs as prayed for in this
writ petition and the same is dismissed.
Sd/-
HARISANKAR V. MENON
JUDGE
ln
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APPENDIX OF WP(C) 13181/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PERMIT ISSUED TO THE PETITIONER
ON THE ROUTE THRISSUR-GURUVAYUR-KOZHIKODE VALID
UP TO 6/5/2012.
EXHIBIT P2 TRUE COPY OF THE CRIME AND OCCURRENCE REPORT
PREPARED BY THE 1ST RESPONDENT DATED 22/3/2012.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE
COURT IN W.A.NO.786/2012 DATED 12/4/2012.
EXHIBIT P4 TRUE COPY OF THE SHOW CAUSE NOTICE OF THE 2ND
RESPONDENT DATED 25/5/2012.
EXHIBIT P5 TRUE COPY OF THE REPLY SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT DATED
16/6/2012.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT
DATED 27/6/2012.
EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE
THE 3RD RESPONDENT DATED 4/8/2012.
EXHIBIT P8 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT
DATED 29/12/2012.
EXHIBIT P9 TRUE COPY OF THE NOTICE OF THE 4TH RESPONDENT
DATED 17/1/2013.
EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT
DATED 23/2/2013.
EXHIBIT P11 TRUE COPY OF JUDGMENT IN WP(C) NO.9196/2013
DATED 27/11/2014 OF THIS HON’BLE COURT.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WRIT APPEAL
NO.2608/2015 DATED 12/03/2018 OF THIS HON’BLE
COURT.
EXHIBIT P13 TRUE COPY OF THE WRITTEN SUBMISSIONS OF THE
PETITIONER AT THE PERSONAL HEARING CONDUCTED BY
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THE 4TH RESPONDENT ON 14/06/2018.
EXHIBIT P14 TRUE COPY OF THE ORDER NO.XA5-10029/2013/K.DIS.
DATED 24/07/2018 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P15 A TRUE COPY OF THE JUDGMENT DATED 31.10.2022 IN
SESSIONS CASE NO. 747/2016 PASSED BY THE COURT
OF THE ADDITIONAL ASSISTANT SESSIONS JUDGE,
THRISSUR.