IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 Crl.MC.No. 222 of 2008() ------------------------ CMP.298/2008 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... PETITIONER: CLAIMPETITIONER: ---------------------------- KABEER, S/O.ABDU, KUTHIRAPARAMBU HOUSE, KEEZHMADU KARA, ALUVA TALUK. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KUNNATHUNADU POLICE STATION. 3. THE EXCISE COMMISSIONER, O/O,THE EXCISE COMMISSIONER, KACHERIPPADY, ERNAKULAM. 4. EXCISE RANGE OFFICER, EXCISE RANGE OFFICE, MAMALA, ERNAKULAM DISTRICT. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. M.C. No. 222 of 2008 * * * * * * * * * * * * * * * * * * Dated : 28-01-2008 ORDER Petitioner who claims to be the registered owner of an autorickshaw bearing Reg. No. KL. 7 AP 3124 seeks to quash Annexure V revised order passed by the J.F.C.M., Kolencherry refusing to review Annexure II order dated 8-1-2008 passed by the said Magistrate granting interim custody of the vehicle to the petitioner. 2. The facts leading to the passing of Annexure V order are as follows: The Kunnathunadu police registered Crime No. 90 of 2007 against one Anoop and two others for offences punishable under Sections 323, 324 and 294 (b) read with Sec. 34 I.P.C. with regard to an occurrence which took place on 21-3-2007. The said Anoop could not be arrested on the date of registration of the crime or immediately thereafter. Subsequently, the Kunnathunadu Police registered Crime No. 198 of 2007 against the very same Anoop under Sec. 55(a) of the Abkari Act for allegedly vending IMFL from a rubber plantation on 26-5.2007. On that day also Anoop was not Crl. M.C. No. 222 of 2008 -:2:- arrested. Subsequently, on 12-11-2007 the police arrested Anoop who was travelling in the aforesaid autorickshaw of which the petitioner herein is the registered owner. Except for the allegation in Crime No. 90 of 2007 that the three accused persons came in the said autorickshaw and left the place also in the very same autorickshaw after committing the offences, the autorickshaw was not involved either in Crime No. 90 of 2007 or in Crime No. 198 of 2007. In any view of the matter, since the autorickshaw was not involved in the commission of the abkari offence, the Kunnathunadu Police was not at all justified in producing the autorickshaw before the authorised officer , the Assistnat Excise Commissioner, Ernakulam for initiating confiscation proceedings. The petitioner approached the J.F.C.M. , Kolencherry by filing C.M.P. 80 of 2008 for interim custody of the vehicle in Crime No. 198 of 2007. As per Annexure II order dated 8-1- 2008, the said petition was allowed on his executing a bond for Rs. 75,000/- with two solvent sureties with a direction to produce the same as and when required. But the Station House Officer of Kunnathunadu Police Station did not handover custody of the vehicle to the petitioner on the ground that the vehicle was already produced before the authorised officer namely the Assistant Excise Commissioner in Crime No. 198 of 2007. It was under these Crl. M.C. No. 222 of 2008 -:3:- circumstances, that the petitioner moved the Magistrate again resulting in Annexure V order as per which the Magistrate dismissed his application as unnecessary in the light of Annexure II order. Actually, the production of the autorickshaw before the Assistant Excise Commissioner was totally unwarranted and the Magistrate ought to have directed the Assistant Excise Commissioner, Ernakulam to release the vehicle subject to Annexure A2 conditions. The Assistant Excise Commissioner, Ernakulam shall, therefore, release the vehicle to the Station House Officer, Kunnathunadu who in turn shall comply with Annexure A2 order dated 8-1-2008. The release shall be subject to the following further conditions:- i) The petitioner shall not transfer the vehicle wholly or in part to any person. ii) The petitioner shall keep the vehicle in the same condition in which it is released to him. iii) The petitioner shall not allow the vehicle to be used for any illicit purpose. This Crl.M.C. is disposed of as above. Sd/-V. RAMKUMAR, (JUDGE) Crl. M.C. No. 222 of 2008 -:4:- ani.