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