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TMI Blog2017 (6) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... the said duty by the authorised officer, the procedure to be followed in Section 67C(1) of the Act, stipulates that no order of confiscation shall be made, unless the person from whom the vehicle/property is seized, is given a notice in writing informing him on the ground on which it was proposed to be confiscated and giving an opportunity to make a representation in writing and reasonable opportunity of being heard in the matter. Once these requirements are satisfied, then the order of confiscation may follow, but still there is an exception by which the vehicle can be spared. The only way in which the owner can escape from the liability of confiscation under Section 67B is the situation under Section 67C(2) - It is quite clear that the exception drawn conferring a right upon the owner to save his vehicle from confiscation under Section 67B of the Act is subject to the proof to be adduced by him, to the satisfaction of the authorized officer, that the vehicle was used to carry the contraband without his knowledge or connivance, his agent, if any, and the person in charge of the animal, cart, vessel or conveyance and that each of them had taken all reasonable and necessary prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;the Act'), from the consequences of confiscation under Section 67B of the Act. The respondent herein was the owner of the Jeep bearing Registration No. KL-9E/7304 on 13/04/2004. The said vehicle was intercepted by the Deputy Superintendent of Police, Shoranur and his team in the course of transportation of toddy from Chittur, to Cheruplasserry, Palakkad District by about 9 a.m. in the course of physical examination, it was found that, apart from 400 litres of toddy covered by Ext. P1 and Ext. P2 permits, 70 litres of spirit was also being carried in the vehicle, which was being transported, despite the fact that it was a forbidden item. The vehicle and the contents were seized after completion of the procedural formalities and the driver of the vehicle and 2 others, who were travelling in the jeep, were arrested and arraigned as Accused 1 to 3 in Crime No. 85/2004 of Cheruplasserry Police Station, particularly in respect of the offence under Section 55(a) of the Act. The respondent herein being the owner of the vehicle was also implicated as the 4th Accused and the persons by name Murukan and Chami (licensees of Toddy Shop Nos. 44/2004-05 28/2004-05), in whose favour Exts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempt was not fruitful and the appeal was rejected by the 3rd respondent as per Ext. P7 order dated 08/05/2005. Thereafter, Ext. P8 notice was issued by the 2nd respondent on 18/06/2005, asking the owner of the jeep to surrender the vehicle which was released earlier pursuant to the verdict passed by this Court; making clear that in case of failure, the Bank Guarantee will be encashed. 4. The respondent filed a representation seeking time to produce the vehicle, which was considered and 20 days' time was granted. In the meanwhile, the respondent approached this Court by filing W.P.(C) No. 21756/2015 (the year of filing of the writ petition shown in the top of the Judgment under challenge as '2005' is obviously a mistake). The claim was resisted by the State/Revenue by filing a detailed counter affidavit. 5. After hearing both the sides, the learned Single Judge made a reference to the verdict rendered by another learned Single Judge of this Court in Suraj K.R. v. Excise Inspector: 2013(2)KHC 211 and held that the State/Revenue had to establish that the owner of the vehicle had prior knowledge or in the alternative, that he was a party to the offence showing his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 67B of the Act, which is as part of the Scheme of the Statute to prevent the persons concerned in indulging such activities from committing the offences, which are detrimental more to the society and the public at large. Section 67B(2) clearly stipulates that, when the authorised officer is satisfied that an offence under the Act has been committed with involvement of the property/vehicle seized, it is liable to be confiscated under the Act. While discharging the said duty by the authorised officer, the procedure to be followed in Section 67C(1) of the Act, stipulates that no order of confiscation shall be made, unless the person from whom the vehicle/property is seized, is given a notice in writing informing him on the ground on which it was proposed to be confiscated and giving an opportunity to make a representation in writing and reasonable opportunity of being heard in the matter. Once these requirements are satisfied, then the order of confiscation may follow, but still there is an exception by which the vehicle can be spared. The only way in which the owner can escape from the liability of confiscation under Section 67B is the situation under Section 67C(2) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontraband in the vehicle, the vehicle could not be confiscated in terms of Section 67B of the Act. We are of the view that the said reasoning is not correct or sustainable, in view of the observations made herein before. That apart, the learned Single Judge was also not correct in holding that the decision rendered by another learned Single Judge in Suraj's case (supra) was in support of such a proposition. This is evident from the very first sentence of the relevant portion of the verdict in Suraj's case (supra) extracted in 'paragraph 17' of the judgment under challenge in this appeal. The opening sentence reads that, it is for the petitioner to prove that he took all reasonable and necessary precautions against the use of his vehicle, in violation of the provisions of the Abkari Act. However, after extracting the same, the learned Single Judge unfortunately proceeded to hold that, it was for the 'prosecution' to prove the factum of knowledge of the owner, as adverted to in 'paragraph 14'. This being the position, the reference made in 'paragraph 15' as to the fundamental right of the owner of the vehicle to carry on the business in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder.-- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Such a provision placing the burden upon the accused, is with a specific purpose based on the legislative wisdom of the law makers. 12. Similarly, when we come to some other Statutes, for e.g. Kerala Private Forests (Vesting And Assignment) Act, 1971, which came into force from 10/05/1971, by virtue of the mandate Under Section 3(1) of the said Act, the property concerned will stand vested with the Government as vested forest. Of course, a remedy is given to the owner of the property to contend that the property was 'not a vested forest' as on the appointed day given under Section 2(a) of the Act. The burden is upon the person who claims to be the owner of the forest land, who has to prove that it was not a 'vested forest' as on 10/05/1971. The burden of proof cast upon the owner of the property in this regard was sought to be questioned some aggrieved persons, contending that, it was for the Government/Revenue to have it proved the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is instituted for commission of the offence. The said order is subject to scrutiny of the Appellate Authority under Section 67E of the Act and that of the Revisional authority under Section 67F of the Act. If the authorised officer passes an order under Section 67B that the property is not liable to be confiscated under the Act, it is to be returned to the person from whom the vehicle was seized, in the manner as prescribed under Section 67D of the Act. Granting of 'interim custody' of the vehicle has to be considered in the said circumstances; especially in view of the serious nature of the offence and the consequences to be resulted, if the requirements are satisfied. It has been made clear by this Court in 'paragraph 12' of the above verdict, that there cannot be any difference of opinion that the Statute has to be read as it is, and if there is ambiguity in understanding the same, 'rule of purposive interpretation' has to be adopted. In the instant case, Section 67C(2) is quite categoric to the effect that, the burden to establish that the owner/agent/person in charge of the vehicle was having no knowledge as to the transportation of the contraba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment under challenge. Though it has been observed in the last sentence that the factum of acquittal is not a compelling factor for release of the vehicle, the basic aspect to be noted is that, 'prosecution' is not at all a pre-requirement/sine qua non, so as to proceed with steps under Section 67B of the Act. The said provision starts with 'non obstante' clause, clearly stipulating that the course to be proceeded under the said provision is notwithstanding anything contained in the Act or in any other law for the time being in force, where any liquor, intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act. The officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid plea was accepted by the learned Single Judge, who ordered the vessel to be released, for not proving the factum of knowledge of the owner at the relevant time. The relevant provisions of the Statute, particularly Section 67C(1) (2) were adverted to by the Court and the mandate under Section 67C(1) of the Act (that no order of confiscation shall be made, unless the person from whom the subject-matter is seized, is given notice in writing informing him of the grounds on which it was proposed to be confiscated and also as to the necessity to give an opportunity of hearing) was explained. Once these requirements are satisfied, the only way in which the owner of the vessel can escape from the consequence of confiscation was held as stipulated under Section 67C(2) of the Act. After extracting Section 67C(2), the Bench held that the owner had to prove, to the satisfaction of the authorized officer, as to the four different requirements under the said provision, making it clear that the 'burden of proof was entirely upon the owner to adduce evidence and to prove the cumulative requirements of sub-section (2) of Section 67 of the Act. The submission made on behalf of the owner th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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