High Court Kerala High Court

Santhosh Kumar @ Kannan vs State Of Kerala on 2 November, 2009

Kerala High Court
Santhosh Kumar @ Kannan vs State Of Kerala on 2 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 2591 of 2009()


1. SANTHOSH KUMAR @ KANNAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.S.RAJEEV

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :02/11/2009

 O R D E R
             M.Sasidharan Nambiar, J.
            --------------------------
              Crl.M.C.No.2591 of 2009
            --------------------------

                       ORDER

Scorpio Car KL-09/S 4788 was found abandoned

near Thrissur Indoor Stadium on 24.12.2008 at about

4.10 p.m. On search, it was found that 36 plastic

jars, each containing 32 litres of spirit, were

kept in the Car. The vehicle and the spirit were

seized. Subsequently, petitioner was arrested and

his Lancer Car, mobile phone and cash of

Rs.10,88,000/- were seized. Petitioner filed M.P.

No.1677/2009, under Section 451 of Code of Criminal

Procedure, for interim custody of the cash seized

from him. By Annexure-I order, learned Magistrate,

accepting the objection raised by the Investigating

Officer, dismissed the petition. This petition is

filed under Section 482 of Code of Criminal

Procedure to quash Annexure-I order and to get

interim custody of the cash.

CRMC 2591/09 2

2. Learned counsel appearing for the petitioner

and learned Public Prosecutor were heard.

3. Learned counsel appearing for the petitioner

argued that the power of confiscation is restricted

to liquor or the vehicle, which was used for

committing the offence, as provided under Section

65 of Abkari Act and confiscation is not provided

in respect of the cash seized from the petitioner

and hence, learned Magistrate was not justified in

dismissing the petition. Learned counsel also

submitted that petitioner had produced records

before the learned Magistrate to prove the source

of money seized from him.

4. Learned Public Prosecutor submitted that

confiscation proceedings are initiated and in such

circumstances, petitioner is not entitled to get

interim custody of the cash.

5. As rightly pointed out by the learned

counsel appearing for the petitioner, Section 65 of

Abkari Act, provides for the things, which are

CRMC 2591/09 3

liable for confiscation, do not enable the State to

confiscate the cash in the possession of an

accused. Under Section 65 of Abkari Act, liquor,

drug, materials, still, utensil, implement or

apparatus in respect of or by means of which an

offence has been committed is liable for

confiscation. So also the receptacles, packages and

coverings in which any such liquor, intoxicating

drug, materials, still, utensil, implement or

apparatus is or are found and the other contents if

any, of the receptacles or packages in which the

same is or are found and the animals, cart, vessels

or other conveyance used for carrying the same are

liable for confiscation. By invoking Section 65,

confiscation of cash in possession of a person,

suspected to have committed an offence, is not

possible. Learned Magistrate was, therefore, not

justified in dismissing the petition on the ground

that it is liable for confiscation.

CRMC 2591/09 4

Petition is allowed. Annexure-I order is

quashed. M.P.No.1677/2009 is remanded to Judicial

First Class Magistrate’s Court-I, Thrissur for

fresh disposal in accordance with law, considering

the question whether the cash seized is that of the

petitioner or not. Learned Magistrate can direct

the petitioner to prove the source of money seized

from him.

2nd November, 2009 (M.Sasidharan Nambiar, Judge)
tkv