IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 Crl.MC.No. 4075 of 2009() ------------------------- CMP.5115/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... (CRIME NO.316/2009 OF VADAKKANCHERRY POLICE STATION) PETITIONER(S): ACCUSED: ---------------------------------------- AJAYAKUMAR, S/O.KESAVAN NAIR, AGED 40 YEARS, KAMALALAYAM, KALPATHY POST, SEKHARIPURAM, PALAKKAD. BY ADVS. MR.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. RESPONDENT(S): RESPONDENT: ------------------------------------------------- 1. STATE OF KERALA, - THROUGH THE CIRCLE INSPECTOR OF POLICE, VADAKKANCHERRY POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATION HOUSE OFFICER, NEMMARA POLICE STATION, PALAKKAD. R1 & R2 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.4075 OF 2009 ------------------------------------------ Dated 5th January 2010 O R D E R Taxi car KL-9V-5578 was seized in crime No.316/2009 of Vadakkancherry police station registered for the offences under Section 55(a) of Abkari Act. Prosecution case is that on 1/7/2009 the accused transported spirit illegally in 18 cans having a capacity of 30 liters each in car KL-7AS-6798 and KL-9V-5578 was escorting that car. Petitioner filed C.M.P.5115/2009 under Section 451 of Code of Criminal Procedure before the Magistrate for interim custody of the vehicle contending that the vehicle was not used for committing any offence under the Abkari Act and it was a taxi car and hence Crmc 4075/09 2 interim custody is to be granted to the petitioner, as he is its registered owner. By Annexure-A2 order learned Magistrate dismissed the petition finding that steps have already taken for confiscation as provided under Section 67 of Abkari Act and hence, vehicle cannot be granted on interim custody. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 order and to grant interim custody of the vehicle. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that though this court in Subair.K. v. Assistant Excise Commissioner (2008 (1) ILR Kerala 339) found that even a vehicle which is being used as a pilot or escort, could be Crmc 4075/09 3 confiscated under Section 67 of the Abkari Act, that was in a case where the owner of both the vehicles is one and the same person and that decision cannot be applied to the petitioner, when petitioner has nothing to do with the transportation of spirit or the other vehicle. Learned Public Prosecutor pointed out that investigation reveals that there were telephonic conversations between the two vehicles and in such circumstances, the vehicle is liable to be confiscated. It is also submitted that vehicle has already been produced before the authorised officer as provided under Section 67 of Abkari Act for confiscation. 4. Section 67 (B) enables the authorised officer to confiscate the vehicle, if it is involved in commission of the Abkari Crmc 4075/09 4 offence. Question whether the vehicle was used for escorting as claimed by the prosecution and whether it is liable to be confiscated are all matters to be decided by the authorised officer. Petitioner is entitled to raise all the contentions raised herein before the authorised officer. Section 67(C) provides for issuance of a notice to the owner of the vehicle, before passing any order of confiscation including opportunity to the owner to object the confiscation. In such circumstances, I find no reason to interfere with Annexure-A2 order. Learned counsel then submitted that there may be a direction to give interim custody of the vehicle to the petitioner. It is upto the petitioner to file an application before the authorised officer for interim custody. If an application is Crmc 4075/09 5 filed, it is for the authorised officer to consider whether the vehicle could be granted on interim custody or not and pass appropriate order in accordance with law without delay. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.