IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.MC.No. 3897 of 2009(F) ------------------------------------- CR.M.P.NO.9139/2009 OF JUDL. MAGISTRATE OF FIRST CLASS COURT,CHALAKUDY. .................... PETITIONER/CLAIM PETITIONER: ------------------------------------------------ SANKARAN .K, AGED 42 YEARS, AI, SEC-19/2 KARAVALLY VILLAGE, BHIVAND BYE PASS THANE, PERMANENTLY RESIDING AT DOOR NO 31/2127 KAROLLIL HOUSE, KAROLLIL LANE, THAMMANAM P.O, ERNAKULAM. BY ADVS. MR.C.N.PRABHAKARAN, MR.C.R.VINOD KUMAR. RESPONDENT/ RESPONDENT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO. 3897 OF 2009 ------------------------------------------ Dated 14th December 2009 O R D E R Rectified spirit being transported from Maharashtra to Southern Union Pharmaceuticals at Elamthuruthy, Thrissur was seized by the police on 31/10/2009, at about 4.30 a.m as it was found that rectified spirit was siphoned of from the van in 8 cans and crime No.796/2009 of Koratty police station was registered under Section 55(a) of Abkari Act. Petitioner filed C.M.P.9139/2009 before the Judicial First Class Magistrate, Chalakudy under Section 451 of Code of Criminal Procedure for releasing the vehicle on interim custody. By Annexure-A3 order, learned Magistrate dismissed the petition for the reason that when the vehicle was produced before the authorised officer for confiscation proceedings under Section 67(B) of Abkari Act, interim custody cannot be granted. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A3 order and grant interim custody of the vehicle. Crmc 3897/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel pointed out that even by Annexure-A2 FIR, case is that rectified spirit was being transported in the vehicle and on the way rectified spirit was being siphoned of by the driver and others in connivance with each other and in such circumstances, it would not attract an offence under Section 55(a) of Abkari Act and may only amount to the offence of theft under Indian Penal Code. It is submitted that petitioner is prepared to abide by any condition and interim custody of the vehicle be granted. 4. Learned Public Prosecutor submitted that vehicle has been entrusted for confiscation proceedings under section 67(B) of Abkari Act as it found involved in Abkari offence. Question whether vehicle is liable to be confiscated or not, is to be decided by the authority, as provided under Section 67 (B) of the Act. Therefore, learned Magistrate was justified in dismissing C.M.P.9139/2009. The question whether offence under Section 55(a) is attracted or not, cannot be decided in this petition. If vehicle is Crmc 3897/09 3 not liable for confiscation, petitioner is definitely entitled to get interim custody provided, he is the registered owner of the vehicle and is entitled to be in possession of the same. When vehicle was entrusted to the authority as provided under Section 67(B) of Abkari Act, it is for the said authority to decide whether vehicle is liable to be confiscated or not. Petitioner is at liberty to raise all the contentions before the authority. Authority competent to confiscate, as provided under Section 67(B), is definitely entitled to give interim custody of the vehicle to the petitioner. Petitioner is also at liberty to approach the authority for interim custody. If application for interim custody is filed by the petitioner, before the authority, it should be disposed in accordance with law, within three weeks from the date of filing of the said petition. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.