IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4075 of 2009()
1. AJAYAKUMAR, S/O.KESAVAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA, - THROUGH THE CIRCLE
... Respondent
2. THE STATION HOUSE OFFICER,
For Petitioner :SRI.K.MOHANAKANNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/01/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.M.C.NO.4075 OF 2009
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Dated 5th January 2010
O R D E R
Taxi car KL-9V-5578 was seized
in crime No.316/2009 of Vadakkancherry
police station registered for the offences
under Section 55(a) of Abkari Act.
Prosecution case is that on 1/7/2009 the
accused transported spirit illegally in 18
cans having a capacity of 30 liters each
in car KL-7AS-6798 and KL-9V-5578 was
escorting that car. Petitioner filed
C.M.P.5115/2009 under Section 451 of Code
of Criminal Procedure before the Magistrate
for interim custody of the vehicle
contending that the vehicle was not used
for committing any offence under the Abkari
Act and it was a taxi car and hence
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interim custody is to be granted to the
petitioner, as he is its registered owner. By
Annexure-A2 order learned Magistrate dismissed
the petition finding that steps have already
taken for confiscation as provided under
Section 67 of Abkari Act and hence, vehicle
cannot be granted on interim custody. Petition
is filed under Section 482 of Code of Criminal
Procedure to quash Annexure-A2 order and to
grant interim custody of the vehicle.
2. Learned counsel appearing for the
petitioner and learned Public Prosecutor were
heard.
3. Argument of the learned counsel is
that though this court in Subair.K. v.
Assistant Excise Commissioner (2008 (1) ILR
Kerala 339) found that even a vehicle which is
being used as a pilot or escort, could be
Crmc 4075/09
3
confiscated under Section 67 of the Abkari Act,
that was in a case where the owner of both
the vehicles is one and the same person and
that decision cannot be applied to the
petitioner, when petitioner has nothing to do
with the transportation of spirit or the
other vehicle. Learned Public Prosecutor
pointed out that investigation reveals that
there were telephonic conversations between the
two vehicles and in such circumstances, the
vehicle is liable to be confiscated. It is also
submitted that vehicle has already been
produced before the authorised officer as
provided under Section 67 of Abkari Act for
confiscation.
4. Section 67 (B) enables the
authorised officer to confiscate the vehicle,
if it is involved in commission of the Abkari
Crmc 4075/09
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offence. Question whether the vehicle was used
for escorting as claimed by the prosecution and
whether it is liable to be confiscated are all
matters to be decided by the authorised
officer. Petitioner is entitled to raise all
the contentions raised herein before the
authorised officer. Section 67(C) provides for
issuance of a notice to the owner of the
vehicle, before passing any order of
confiscation including opportunity to the owner
to object the confiscation. In such
circumstances, I find no reason to interfere
with Annexure-A2 order. Learned counsel then
submitted that there may be a direction to
give interim custody of the vehicle to the
petitioner. It is upto the petitioner to file
an application before the authorised officer
for interim custody. If an application is
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filed, it is for the authorised officer to
consider whether the vehicle could be granted
on interim custody or not and pass appropriate
order in accordance with law without delay.
Petition is disposed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.