IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Crl.MC.No. 3922 of 2009() ------------------------- CMP.5702/2009 of JUDL.FIRST CLASS MAGISTRATE COURT I, VAIKOM .................... PETITIONER(S): ACCUSED NO.1: -------------------------------------------------- T.C.CHANDY, S/O. LATE CHACKO, THAICKAL HOUSE, MUTTUCHIRA VILLAGE, PARAMBARAM KARA, VAIKOM TALUK, KOTTAYAM DISTRICT. BY MR.C.C.THOMAS, SENIOR ADVOCATE, MR.NIREESH MATHEW. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KADUTHURUTHY POLICE STATION, KOTTAYAM DISTRICT REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ---------------------------------------- Crl.M.C.No.3922 of 2009 ---------------------------------------- Dated this the 16th day of December, 2009 ORDER Building No.VII/293 (old No.VII/330) of Kaduthuruthy Grama Panchayath belonging to the petitioner was sealed by the police in Crime No.391/2009, registered for the offence under Section 55(a)(g)(i), 55B and 58(a) & (e) of Abkari Act on the allegation that coloured arrack is being manufactured in the soda factory for sale as Indian Made Foreign Liquor. The soda factory is adjacent to the residential building of the petitioner. Petitioner filed CMP No.5702/2009 under Section 451 of Code of Criminal Procedure to release the building by Annexure-A order. The learned Magistrate refused to release the sealed premises. An anticipatory bail application is pending. 2 2. Learned Senior Counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. As rightly argued by the learned senior counsel appearing for the petitioner, though confiscation is provided under the Abkari Act, the Act does not authorise an Abakri Officer to seal a building, on the ground that the building is used either for manufacturing arrack or Indian Made Foreign Liquor. The Abakri Officer could seize any machinery or articles used for preparing arrack or Indian Made Foreign Liquor. But that does not enable the Abakri Officer to seal the building and deny the right of the owner to use the building. In such circumstances, learned Magistrate should have release the building to the petitioner when an 3 application under Section 451 of the Cr.P.C. is filed. 4. Petition is allowed. Annexure-A order is quashed. The Circle Inspector of Police, Kaduthuruthy who is now investigating the case is directed to release the building to the petitioner. M.SASIDHARAN NAMBIAR, JUDGE cms