IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 Crl.MC.No. 3022 of 2009() -------------------------------------- CMP.NO.5281 OF 2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT V, KOZHIKODE. ............. (CRIME NO.192/2009 OF MARAD POLICE STATION) PETITIONER(S): ------------------------ P.P.ABDU RAHMAN,S/O.MOOSA KUTTY, 34/917,THAZHEKUNHOTH CIVIL STATION P.O. KOZHIKODE. BY ADV. MR.M.K.CHANDRA MOHANDAS RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SI OF POLICE, MARADU POLICE STATION, KOZHIKODE. R1 & R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3022 of 2009 -------------------------- ORDER On the allegation that accused consumed Indian Made Foreign Liquor from bus KL-11/T 7443, Crime No. 192/2009 of Marad Police Station was registered for the offence under Section 15C of Kerala Abkari Act under Annexure-II FIR and the bus was seized. Petitioner, claiming to the registered owner of the bus, filed C.M.P.No.5281/2009 under Section 451 of Code of Criminal Procedure, for interim custody of the vehicle. Under Annexure-IV order, petition was dismissed finding that under the Abkari Act, the vehicle is liable to be confiscated. This petition is filed under Section 482 of Code of Criminal Procedure to quash Anneuxre-IV order and to grant interim custody of the vehicle to the petitioner. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Section 67B of Abkari Act provides for confiscation by Abkari Officers in certain cases. Under CRMC 3022/09 2 sub-section (1), notwithstanding anything contained in the Act or in any other law for the time being in force, where, any liquor, intoxicating drug, material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart, vessel or other conveyance used in carrying the same is seized and detained under the provisions of the Act, the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer autorised by the Government in this behalf by notification in the Gazatte and under sub-section (2) the liquor, intoxicating drug, material, still utensil, implement or apparatus or any receptacle, package or covering is found or any animal, cart, vessel or other conveyance used in carrying the same is seized and detained, is liable to be confiscated. 4. If a vehicle is to be confiscated under Section 67B of Abkari Act, as is clear from sub-section (1) of Section 67B, the vehicle should be used in carrying the liquor, intoxicating drug, material or utensil. The CRMC 3022/09 3 only allegation is that accused consumed Indian Made Foreign Liquor from the bus and thereby committed the offence under Section 15C of the Abkari Act. In such a case, there is no question of confiscation as provided under Section 67B of the Abkari Act. Though Section 65 provides what things are liable to confiscation and by the said section, receptacles, packages and coverings in which any such liquor, intoxicating drug, material, still, utensil, implement or apparatus or animals, carts, vessels or other conveyances used in carrying the same are liable for confiscation, when, the only allegation is that accused consumed Indian Made Foreign Liquor from the bus, the bus is not liable to be confiscated. In such circumstances, learned Magistrate was not justified in dismissing the petition under Annexure-IV order. Petition is allowed. Annexure-IV order is quashed. Learned Magistrate is directed to grant interim custody of the vehicle to the petitioner on sufficient conditions. 22nd September, 2009 (M.Sasidharan Nambiar, Judge) tkv