IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.MC.No. 4131 of 2008() ------------------------- CRMP.3451/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM in CRIME NO.1947/08 OF CENTRAL POLICE STATION, ERNAKULAM .................... PETITIONER(S): --------------- SREEKUMAR, S/O.PANKAJAKSHAN NAIR, DOOR NO. 38/1057,GANDHI NAGAR, KADAVANTHARA P.O., ERNAKULAM, KOCHI. BY ADV. SMT.P.K.RADHIKA RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4131 of 2008 ------------------------------------- Dated this the 6th day of November, 2008 ORDER A vehicle belonging to the petitioner is seized by the police on the allegation that it is involved in the commission of an offence under the Kerala Abkari Act. The vehicle was produced before the learned Magistrate. The petitioner applied for release of the vehicle. The learned Magistrate, by the impugned order, which I extract below, has dismissed the application: “Heard the A.P.P and the petition is dismissed since the subject matter is liable to be confiscated u/s 67 B of the Abkari Act. The remedy of the petitioner is to approach before the Asst.Excise Commissioner concerned.” 2. The petitioner Is hence constrained to come before this Court. The learned counsel for the petitioner submits that to the knowledge of the petitioner, no proceedings under Section 67 B of the Kerala Abkari Act has at all been initiated. It is not even know whether there is any such proceedings contemplated by the exercise officials under Section 67 B of the Kerala Abkari Crl.M.C. No.4131 of 2008 2 Act. Without proper application of mind, the application has been dismissed, submits the learned counsel for the petitioner. 3. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor submits that so far no decision has been taken to proceed under Section 67 B of the Kerala Abkari Act. Subject to appropriate conditions the vehicle can be released to the petitioner, submits the learned Public Prosecutor. 4. I am disappointed that proper application of mind has not been made to the issues involved. Every court must imbibe the concerns which are adverted to by the Supreme Court in Sunder bhai Ambalal Desai v. State of Gujarat [A.I.R 2003 S.C 638]. In the instant case, I fail to understand how it was assumed that the proceedings under Section 67 B of the Kerala Abkari Act are on or even contemplated. I am satisfied that this petition deserves to be allowed. 5. In the result: a) This Crl.M.C is, in these circumstances, allowed; b) The impugned order is set aside; c) The vehicle shall be released to the petitioner on the following terms and conditions: i) The petitioner shall produce all documents to prove that he is the owner of the vehicle entitled for possession; Crl.M.C. No.4131 of 2008 3 ii) The petitioner shall execute a bond for an amount equal to the value of the vehicle to be assessed and determined by the learned Magistrate provisionally with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate; iii) In such bond, the petitioner shall undertake that the vehicle shall be produced before the learned Magistrate or before the authority under Section 67 B of the Kerala Abkari Act after such proceedings are completed and if an order directing confiscation is passed. (R.BASANT, JUDGE) rtr/-