At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE P.R. RAMACHANDRA MENON & THE HONOURABLE MRS. V. JUSTICE SHIRCY
For the Petitioners: V. Manu, Government Pleader. For the Respondent: C.A. Chacko, C.M. Charisma, Megha K. Xavier, Advocates.
Ramachandra Menon , J.
The verdict passed by the learned single Judge ordering release of the vehicle confiscated under Section 67B of the Abkari Act holding that the said vehicle, which was piloting a lorry [in which the contraband was transported] was not actually 'used' in committing the alleged offence, placing reliance on the verdict passed by the Division Bench of this Court in Assistant Excise Commissioner Vs. Paulson [2009 (1) KLT 956], is under challenge at the instance of the State/Excise Commissioner and others, who were the respondents in the Writ Petition.
2. With regard to the factual position, on getting secret information as to the transportation of illicit liquor in TATA 407 Mini lorry bearing No. TN 69 W 2404 accompanied by a Maruthi Wagon R car bearing No. KL 08 AR 599 aiding to clear the way, the Excise party made sufficient arrangements to intercept the vehicles and accordingly, on seeing the above vehicles on 21.07.2010, gave signal to stop the same on the spot. Though the speed of the mini lorry was reduced initially, on getting signals from the persons travelling in the front seat of the the car [which was proceeding in front], both the vehicles fled away from the scene. This made the officers to chase the vehicles and after sometime, the vehicles were intercepted and physical verification was conducted. Pursuant to the said inspection, 1184 litres of spirit [arrack] was seized from the lorry. It was noted that there were two persons including the driver in the lorry, while three persons were there in the car. One person in the lorry ran away and all the remaining four persons were apprehended then and there, leading to registration of a Crime for offences under the relevant provisions of the Abkari Act. Later, one more person, to whom the Maruthi Wagon R car was handed over [by name Shijo] was also made an accused [6th accused] and the proceedings are now pending trial before Assistant Session's Court, Palakkad, as S.C. No. 510 of 2015.
3. In the course of further proceedings, notice for confiscation of the vehicles was issued in respect of both the vehicles and after completing the formalities, Ext. P3 order was passed by the 3rd respondent, ordering confiscation of the Wagon R car, in terms of Section 67B of the Act. The respondent/writ petitioner challenged the same by filing Ext. P4 appeal, wherein interference was declined and the appeal was dismissed by the 2nd respondent as per Ext. P5 order, confirming Ext. P3. This made the owner of the Maruthi Wagon R car to challenge Exts. P3 and P5 by filing writ petition before this Court as W.P.(C) No. 26099 of 2011.
4. The main contention raised by the respondent/writ petitioner was that, the Maruthi Wagon R car was never used for carrying liquor/contraband and that he had absolutely no knowledge with regard to the offence committed. It was also stated that he had handed over the vehicle to one Mr. Shijo on the previous day, on the strength of Ext. P2 agreement dated 20.07.2010 for the personal use of the latter on rent and that he had taken all reasonable care to see that the vehicle was not used for any illegal activity/purpose. This bei
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g the position, the vehicle was not liable to be confiscated and hence sought for release of the same.5. The prayer was opposed from the part of the State/Revenue. Reliance was sought to be placed on the verdicts passed by two single Judges of this Court reported in 2008 (1) KHC 427 [K. Subair Vs. Assistant Excise Commissioner and Others] and 2009 (2) KHC 309 [Sajin Vs. Assistant Excise Commissioner]. The writ petitioner sought to place reliance on the verdict passed by the Division Bench of this Court in Paulson's case [cited supra] and that of a learned single Judge in 1996 (1) KLT 321 = 1996 KHC 67 [Nazer Vs. State]. The learned single Judge observed that, by virtue of the law declared by the Division Bench of this Court in Paulson's case [cited supra] [which was stated as never brought to the notice of the learned single Judge while rendering the verdict in 2009 (2) KHC 309 (cited supra)], the writ petitioner was entitled to succeed. Accordingly, the impugned orders were set aside and the writ petition was allowed directing the vehicle to be released, which in turn is under challenge in this appeal.6. The learned Government Pleader appearing for the appellant submits that the provision is crystal-clear, which unfortunately has not been properly appreciated by the learned single Judge while passing the verdict under challenge. It is stated that the law declared by the Division Bench in Paulson's case [cited supra] is not applicable to the case in hand, because of the difference in facts. It is also pointed out that, Ext. P2 is only a fabricated document, that too, alleged as executed on the previous day to the date of occurrence. The learned Government Pleader submits that, though such a contention was taken before the authorities in the confiscation proceedings, neither the original nor a copy was produced either before the original authority or before the appellate authority. A copy of the document has been produced for the first time only along with the writ petition and that no reliance can be placed on the said document, due to factual and legal reasons.7. The learned Government Pleader also points out that the term used as it appears in the relevant provision [Section 67B] is having wider meaning and that the Statute does not envisage carrying of the contraband in the particular vehicle to sustain confiscation of the said vehicle and that it will be enough, if such vehicle was used in carrying the contraband in any manner. In the instant case, Maruthi car was proceeding in front and the person by name Shijo who was travelling in the car was the kingpin, for whose benefit the contraband was being carried in the lorry. There was frequent interaction between the persons in the car and the driver of the lorry proceeding behind the car. The lorry did not stop, despite the 'stop signal' given by the authorities, which was on the basis of the instruction passed on by the persons travelling in the car. As such, there was clear connection between the two vehicles to cause facilitation of transportation of the contraband, which clearly reveals that the Maruthi Wagon R car was being used in carrying contraband in the lorry.8. The learned Government Pleader further points out that by virtue of the presumption under the Statute, the burden was very heavy upon the shoulders of the writ petitioner/owner of the car, to come out of the confiscation proceedings, subject to satisfaction of all the requirements in terms of Section 67 C (2) of the Act. As per the said provision, it was for the owner of the vehicle to have proved [to the satisfaction of the authorities], that he himself or his agent and the persons who were having control over the vehicle did not have any knowledge as to carrying of the contraband and also that each of them had taken reasonable care and caution against such usage. The judgment under challenge has been passed by the learned single Judge without properly appreciating the mandate of the statutory provision and hence it is liable to be intercepted, submits the learned Government Pleader.9. The learned counsel for the respondent/writ petitioner submits that the ownership of the car is not disputed. But there is no case for the appellants/Department that the owner of the car was having any knowledge as to the commission of the offence. In fact, the vehicle was given on rent for the personal use of a friend of the writ petitioner, on the strength of Ext. P2 agreement executed on 20.07.2010 and that the occurrence was only on the next day, without any knowledge or involvement of the writ petitioner/owner. The learned counsel sought to place reliance on the verdict passed by the Division Bench in Paulson's case [cited supra] and also on 1996 (1) KLT 321 [cited supra], rendered by a Single Bench of this Court; besides contending that the verdict passed by the Division Bench of this Court in 1982 KLT 518 [Vamadevan Pillai Vs. State of Kerala & Others] stands in favour of the writ petitioner/owner.10. There is no much dispute as to the factual position and the sequence of events. Maruthi Wagon R car belonging to the writ petitioner was virtually proceeding in front of the mini lorry carrying the contraband and there was frequent interaction between the drivers/passengers in the car and the lorry. The primary question to be considered is whether the learned single Judge is right in placing reliance on the verdict passed by this Court reported in Paulson's case [cited supra] to have ordered release, holding that it was not used in 'carrying the contraband'.11. It will be worthwhile to make a reference to Sections 67B and 67C of the Act to appreciate the factual and legal position in a proper manner. Hence the said provisions are extracted below :“67B Confiscation by Abkari Officers in certain cases:- (1) Notwithstanding anything contained in this Act or in 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 as the authorised officer](2) Where an authorised officer seized and detains any property specified in sub section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised offcer may also order confiscation of all contents thereof.(3) When making an order of confiscation under sub-section (2), the authorised offer may also order that such of the properties to which the order of confiscation relates, which in his pinion cannot be preserved or are not fit for human consumption, be destroyed”.“67C. Issue of show cause notice before confiscation under Section 67B.- (1) No order confiscating any property shall be made under section 67B unless the person from whom the same is seized –(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property;(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and(c) is given a reasonable opportunity of being hard in the matter.(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 authorized 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 or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.”As a matter of fact, the expression used 'for carrying' in the vehicle is not a restrictive definition, but a wider one, in so far as the Statute does not say that the confiscation is possible only in respect of the vehicle which carries the contraband. In other words, the provision does not say that the 'vehicle which carries' the contraband is liable to be confiscated, but for saying that the vehicle used in carrying the contraband is liable to be confiscated. By virtue of the usage of the expression 'used in carrying', it takes something more than the vehicle which actually carries the contraband and it brings such other vehicles as well within the cover, if they are also used for carrying the contraband in any manner. There was an occasion for a learned Judge of this Court to consider the scope of confiscation under such circumstances involving a motorcycle, which was piloting a transport vehicle carrying the contraband and the law stands declared in 2008 (1) KHC 427 [K. Subair Vs. Assistant Excise Commisisoner and Others]. After a detailed discussion as to the course and events and the precedents in the field, the learned Judge, placing reliance on the verdict passed by a Devision Bench of this Court in Asst. Excise Commissioner Vs. Vijayan [1981 KHC 124] held that the conveyance can be said to be used for carrying the contraband articles, if the person who actually effects such transportation has atleast some degree of actual, though minimal, control over the operation of the vehicle. There, the petitioner was the first accused in the criminal case and he was found driving the lorry carrying the contraband, who himself was the registered owner of the motorcycle, which was found escorting the lorry, though the rider of the motorcycle escaped into the forest under the cover of darkness. The learned Judge distinguished the ruling rendered by the Division Bench of this Court in Paulson's case [cited supra] in paragraph 7 of the said verdict [Subair's case (cited supra)], due to the difference in facts, particularly since the car involved in Paulson's case [cited supra] was only a 'get away vehicle', which was used by the accused persons only to escape from the scene of occurrence where they were allegedly loading liquor into the lorry.12. The above decision was subsequently relied on by another learned Judge of this Court in 2009 (2) KHC 304 [Sajin Vs. Asst. Excise Commissioner] to sustain the confiscation of the vehicle, which was parked near the seized contraband with intention to transport the contraband. The case put forth by the owner of the vehicle was that, the contraband was seized from the Railway platform and never from his vehicle and hence it was not a vehicle used in carrying the contraband. The fact that the contraband/liquor was being taken from the Railway platform, to be loaded into the vehicle, was a proven fact and therefore, the act of bringing liquor near the vehicle for transportation in the vehicle [at which time, it was seized, as admitted by the petitioner] was a composite ingredient of the transaction which can be called 'used in carrying contraband'. It was accordingly, that the contention to the contrary was repelled and the writ petition was dismissed.13. Coming to the scope of the verdict passed by the Division Bench in Paulson's case (relied on by the learned single Judge - one of us [PRRM (J)] was also a member to the said verdict); it was a case where the writ petitioner was the owner of a “for registration” Maruthi car. On the date of occurrence, i.e. on 25.07.2006, 367 cases of IMFL were seized from the lorry and one person was arrested from the spot. Four persons who were allegedly engaged in loading the liquor immediately escaped in the Maruthi car with “for registration” board. The said car was subsequently seized by the Police and produced before the authorised officer, leading to proceedings under section 67B of the Act, which was sought to be intercepted by filing writ petition. The learned single Judge observed that the said car was not used for carrying the contraband and accordingly, the impugned order was set aside and the writ petition was allowed. This was sought to be challenged at the instance of the State, by filing a Writ Appeal. Referring to the statutory provision, the Bench observed that, if any vehicle is used for carrying liquor, it is liable for confiscation. But merely because the culprits escaped in a vehicle after committing the offence, such vehicle cannot be confiscated under Section 67B of the Act. It was accordingly, that interference was declined and the appeal was dismissed.14. From the description of facts, it is quite clear that the car involved in the said case was only a 'get away car', in which the accused persons tried to escape from the scene, after committing the offence. The connection between the said car and the offence was never established and it was in the said circumstances, that the position was answered against the Revenue. The dictum laid down there is clearly distinguishable and it does not come to the rescue of the writ petitioner, by virtue of the black and white difference between the factual sequence, which ought not to have been relied on by the learned single Judge, to have allowed the writ petition, quashing the impugned orders. We find considerable force in the submission made by the learned Government Pleader in this regard.15. When a vehicle can be said to be 'used', in terms of Section 67B of the Act, had come up for consideration before a Division Bench of this Court in Assistant Excise Commissioner Vs. Vijayan [1981 KHC 124 = 1981 KLT 366] which was sought to be relied on by the respondent/writ petitioner. It was a case where a passenger in a stage carriage/bus carried 20 bottles of Indian Made Foreign Liquor concealed in a suitcase and three bottles elsewhere, which was seized by the authorities leading to registration of a case against the accused, including the driver, conductor and cleaner of the bus, besides a passenger, all of whom were arrested in respect of the offence under Section 55A of the Abkari Act. The offence against the passenger was compounded on remitting a sum of Rs. 300/- as the compounding fee. In the course of further proceedings, the bus was ordered to be confiscated and on challenging the order, by way of appeal, the Government modified the order of confiscation to the extent of permitting the owner to pay Rs.4000/- in lieu of confiscation. The challenge raised before the Single Bench did not yield any result, which led to filing of appeal by the owner of the vehicle. After hearing both the sides, the Bench dealt with the term 'used' as it appears in the statutory provision, in paragraph 8 and observed that there could not be any doubt regarding the statutory position. It was held in paragraph 9, that the position in the said case was entirely different as the bus/stage carriage was used only for conveying passengers in general, in a specified route and hence it was not possible to say that that the vehicle was used for carrying any particular item belonging to one of the passengers. It was accordingly, that the orders impugned were set aside and the appeal was allowed. Though 'leave' was sought for, for issuance of certificate in terms of Article 133(1) of the Constitution of India enabling to approach the Supreme Court, it was rejected as stated in paragraph 11. The said decision stands on a different footing, which does not support the case of the respondent in any manner.16. The respondent has placed reliance on another verdict passed by a Division Bench of this Court in Vamadevan Pillai Vs. State of Kerala and Others [1982 KLT 518], holding that authorised officer had to exercise his discretion and that Section 67C of the Act was independent of Section 67B. Based on the facts involved, the Ambassador car, which was confiscated was ordered to be released. The confiscation in the said case was ordered as a matter of course by the authorised officer, taking a view that since commission of the offence was proved, 'conveyance' was liable to be confiscated. In other words, scope of the discretionary jurisdiction vested with the competent authority to analyse or appreciate with proper application of mind and the duty in this regard were highlighted in the said verdict, as given in paragraphs 7 and 8. It was pointed out that, if the owner invoked Section 67C and he was able to prove the matters mentioned in the Section, irrespective of whether otherwise the conveyance would have been confiscated or not, no order of confiscation could be passed because of the operation of 67C (2) of the Act, as Section 67C (2) stands independent of Section 67B (2) [paragraph 7]. The said observation itself is sufficient to hold that the burden is upon the owner, to invoke Section 67C and prove all the requirements under Section 67C (2), to have the benefit flowing therefrom. We do not find anything in favour of the respondent herein, even as per the said verdict.17. 1994 KHC 2340 [Daitary Samantaray Vs. Divisional Forest Officer] was a case where an offence under the Orissa Forest Act was involved. The car accompanying a truck carrying illegal timber was seized along with fake permits. Scope of Section 56 of the said Act was considered by the Apex Court, where the term 'used' appears. The said provision is reproduced below for immediate reference :“56. Seizure of property liable to confiscation : (1) When there is a reason to believe that a forest offence has been committed in respect of any forest produce, such produce together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.(2) xxxxx(2-a) Where an authorised officer seizes any forest produce under sub section (1) or where any such forest produced is produced before him under subsection (2) and he is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence”.The above provision itself shows that the word 'used' is deployed along with other words in relation to committing of the offence; whereas in the instant case under Section 67C (2) of the Abkari Act, the terminology used is “in carrying the liquor or intoxicating drug” or the material. The connection of the vehicle in relation to the use of vehicle in committing the offence had to be established. Observing that the Ambassador car, which was going ahead of the truck could not be said to have used in commission of a forest offence, [as the car neither did contain any forest produce, nor any direct link had been established between the car and the truck], the car was spared. This being the position, the finding on the basis of the particular facts involved in the said would not apply to the case in hand, where the connection between the car and the vehicle carrying the contraband is clearly established.18. A learned Judge of this Court had occasion to consider the scope of Section 67C (2) of the Abkari in the decision reported in 1996 KHC 67 = 1996 (1) KLT 321 [Nazer Vs. State]. The learned Judge held that the said provision is in the nature of injunction to pass order of confiscation by the competent authority, if the use of the vehicle is without knowledge or connivance of the owner himself and the person in charge has taken all the reasonable and necessary precautions against such use. The vehicle involved - a public carrier of goods entrusted with the permit to the driver [on rent] was seized with contraband carried in the vehicle, leading to confiscation of the vehicle. The interim custody sought for was denied by the learned single Judge and the O.P. was disposed of, directing the proceedings to be finalized within a specified time, after affording an opportunity of hearing. On filing appeal, a Division Bench of this Court ordered the interim custody to be released, on furnishing sufficient security for the value of the vehicle and on executing an affidavit in the form of an 'undertaking', that the party would not alienate the vehicle or otherwise dismantle the same and also would keep the vehicle in good condition, besides undertaking that the vehicle would be made available as and when required. During pendency of the appeal, proceedings were finalized and an order was passed confiscating the vehicle, vide order dated 05.09.1994, which made the owner of the vehicle to approach this Court again.19. Along with the Original Petition, a C.M.P. was filed for releasing the vehicle on production of solvency certificate of sureties. An interim order was passed on 23.03.1995, granting the relief, also taking note of the fact that there was an earlier order dated 28.11.1994 in CMP No. 18291 of 1994 ordering release of the vehicle at the earliest. As the orders were not complied with, another CMP [10206 of 1995] was filed for directing the respondent to comply with the order. Review Petition No. 920 of 1995 was filed by the respondent therein with regard to the order in CMP No. 8465 of 1995, which made the Court to consider all the relevant aspects and the sequence of events. It was asserted from the part of the owner that no material was produced to show that the petitioner/owner of the vehicle was having any knowledge as to the carrying of contraband in the vehicle when it was intercepted and he in fact, came to know it only from the local news paper, including the fact that the driver had also absconded. The relevant file was placed before the learned Judge showing the transactions, including the occurrence report and Seizure mahazar. The observation made by the Court in paragraph 19 of the verdict is relevant, which is extracted below :“9. The impugned order (Ext. P4) proceeds to confiscate the vehicle on the basis that it is not the petitioner but one Shri Cherian was the registered owner and that too on the basis of the representation of Shri sunny Jacob Cherian, the brother, that the vehicle was sold on 2-11-1987. When the agreement and the goods carriage permit were annexures to the earlier O. P. No. 11097/1993 to the knowledge of the Excise Authorities, the least that can be observed is that if not anything the older lacks the enacted bone tides on the part of the authorities. In addition, the requirements of knowledge and/or connivance do not appear to be present at all, not to speak of the position of law that the power is discretionary to be exercised on the facts of the case at hand. The order is cryptic and devoid of required considerations.”The order passed by the learned singe Judge in the above case is on the basis of the facts and sequence of events. But it remains to be stated that, the burden of proof was not specifically advanced or adverted to, though Section 67C (2) was extracted in paragraph 15. From the above provision, it is quite categoric that the burden to prove the ingredient of Section 67C (2), to exclude confiscation in terms of Section 67B, is upon the owner. The burden is very heavy, in so far as he has to prove that the vehicle used for carrying the contraband was without his knowledge or connivance of himself, his agent, if any, and the person in charge of the vehicle. That apart, the further fact that each of them had taken all reasonable and necessary precautions against such use is also a fact to be proved by the owner of the vehicle. In the said circumstances, the said decision cannot be taken as laying down any proposition in this regard as to the statutory provision, especially, with regard to the 'burden of proof' and cannot support the case of the respondent herein.20. The legal position as to the 'burden of proof' had come up for consideration before another learned Judge of this Court, when it was held that it was for the prosecution to have it proved and accordingly, the vehicle was ordered to be released, setting aside the order of confiscation. But we have come to note that, the very same learned Judge has analysed the scope of the provision in a subsequent ruling, and it was made clear point blank that the burden of proof was exclusively on the owner of the vehicle, clearly holding that burden is exclusive on the owner of the vehicle as discernible from the decision reported in Jacob Thomas @ Sabu Paster v. Assistant Excise Commissioner, Palakkad and another [2015 (5) KHC 514]. The verdict passed by the learned Judge in W.P(C) No. 21756 of 2005 had come up for consideration of this Court in Writ Appeal No. 1485 of 2016 and after hearing both the sides and dealing with the statutory provision and precedents, it was held, as per the judgment dated 16.06.2017, that the burden of proof was solely vested upon the owner of the vehicle, to prove it to the satisfaction of the authorities concerned, that use of the vehicle, while carrying the contraband was without the knowledge or connivance of himself, his agent, if any and the person in charge of the vehicle and further that each of them had taken reasonable care to see the vehicle was not used for any illegal activity/purpose. We fully concur with the said view and also find support from another judgment dated 05.10.2016 in W.A. No. 2652 of 2015 [to which one of us was a member - SV(J)], whereby the verdict rendered by the learned single Judge was over ruled.21. Yet another aspect to be considered is, as to the steps taken by the respondent for claiming the benefit under Section 67C (2) of the Act [showing that he was having no knowledge as to the carrying of contraband in the vehicle]. This was sought to be established with reference to Ext. P2 agreement dated 20.07.2010 executed on the previous day to the date of occurrence. The pleadings and proceedings clearly reveal that the said agreement was never produced by the respondent before the authority who ordered confiscation or even before the appellate authority. The original is not made available before this Court as well, but for producing a photocopy, which does not show the date of issuance of the stamp paper, to whom was it issued and on what date ? The learned counsel for the respondent conceded that the original is not available in the case file, although it has been certified that Ext. P2 is a true copy of the original. That apart, it is quite evident that Ext. P2 only speaks about the alleged entrustment of the vehicle by the respondent to a person by name Shijo for his personal use. In the Writ Petition, it is stated that the vehicle was given 'on rent' for the personal use of a friend of the respondent, whereas in Ext. P2 agreement, no such 'rent' is stated as payable by Shijo. Virtually, it is not an agreement supported by any consideration. It is quite fundamental that any agreement not supported by consideration is not a valid agreement, legally enforceable in law. For this reason as well, no reliance can be placed on Ext. P2 in any manner. Even if existence of the agreement [Ext. P2] is proved and even if it be a valid agreement, still, that by itself is not sufficient to discharge the burden of the respondent as envisaged under Section 67C (2) of the Act as discussed above.22. In the above facts and circumstances, this Court finds that the verdict passed by the learned single Judge, merely placing reliance on the verdict reported in Paulson's case [cited supra - discussed and distinguished already] is not correct or sustainable. The judgment under challenge is set aside and Exts. P3 and P5 orders passed by the Original/Appellate authority stand restored.Appeal is allowed. No cost.