IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 WP(C).No. 4738 of 2008(L) ------------------------- CMP.9943/2007 of J.M.F.C.-II, KOLLAM CRIME NO.1310/2007 OF KOLLAM EAST POLICE STATION .................... PETITIONER: ------------ MADHUSOODHANAN PILLAI, VADAKKE KECHERYIL VEEDU, ULIYAKKOVIL P.O., KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO EXCISE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, KOLLAM. BY GOVERNMENT PLEADER, SRI. GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No. 4738 of 2008 ---------------------------------------- Dated this the 22nd day of February 2008 J U D G M E N T The petitioner claims to be the registered owner of a vehicle which was seized by the police on the allegation that it was used for transportation of illicit liquor. Thus, the F.I.R was registered and the seizure was effected on 11/12/2007. The vehicle was promptly produced before the learned Magistrate. The petitioner filed an application for release of the vehicle under Section 451/457 of the Code of Criminal Procedure. But, coming to know of that, the police filed an application for the return of the vehicle before the learned Magistrate. The vehicle was returned to the police. The police in turn produced it before the excise authorities for initiating action under Section 67B of the Abkari Act. The learned Magistrate thereupon dismissed the petitioner's application under Section 451/457 Cr.P.C. The petitioner claims to be aggrieved by the order of the Magistrate. 2. The learned counsel for the petitioner submits that no proceedings under Section 67B of the Abkari Act has till date been initiated. He has not received any notice. The vehicle is exposed to sun and rain. This results in great hardship and W.P.(C) No.6329/2008 2 prejudice to the petitioner. The petitioner is left with no other remedy, his application under Section 451 Cr.P.C having been dismissed by the learned Magistrate. He has therefore rushed to this Court. The learned counsel for the petitioner prays that as per the decision rendered in Sunderbhai Ambalal Desai v. State of Gujarat [SC 2003(2) KLT 1089] by the Supreme Court, an appropriate direction to secure the interests of the petitioner may be issued. 3. Notice was given to the learned Government Pleader. The learned Government Pleader after taking instructions only submits that steps shall forthwith be taken under Section 67B of the Abkari Act. The motor vehicle authorities have been addressed. The excise authorities are waiting for getting the reply. 4. I am satisfied in that in the facts and circumstances of this case, this Court has to intervene and invoke the powers under Article 226 of the Constitution of India to ensure justice in the matter. The grievance of the petitioner, that the vehicle is being exposed to sun and rain unnecessarily without any proceedings having been initiated against it already has to be W.P.(C) No.6329/2008 3 taken note of. His grievance has to be remedied. I am in these circumstances satisfied that appropriate directions can be issued for release of the vehicle to the petitioner invoking the jurisdiction under Article 226 of the Constitution of India. 5. In the result, this petition is allowed. The vehicle involved in Crime No.1310/2007 of Kollam East Police Station shall be released to the petitioner on the following terms and conditions:- i. The petitioner shall execute a bond for the value of the vehicle to be ascertained by the learned Magistrate along with two solvent sureties each for the like sum. ii. The petitioner shall produce before the learned Magistrate all documents to show that he is the owner of the vehicle entitled to possess the same. iii. The petitioner in such bond shall undertake to produce the vehicle before the learned Magistrate as and when directed. The petitioner shall also undertake that the vehicle shall be produced by him before any appropriate authority when a W.P.(C) No.6329/2008 4 demand is made to that effect by such authority after intimation to the learned Magistrate. iv. The petitioner shall undertake that the vehicle shall be retained by him in the same condition in which it is handed over to him by the Magistrate. 6. The learned Public Prosecutor vehemently presses that a bank guarantee may be insisted. I am not persuaded to accept the said request in the facts and circumstances referred above. (R.BASANT, JUDGE) ms