IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 Crl.MC.No. 82 of 2009() ----------------------- CRIME NO.36 OF 2008 OF EXCISE RANGE, MUVATTUPUZHA CMP.1631/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... PETITIONER(S): --------------- RAJESH.C.G., S/O.GOPALAN, 26 YEARS, CHEMMUNDACKEL HOUSE CHERUVATTOOR M.M.KAVALA KARA ERAMALLOR PO., KOTHAMANGALAM, ERNAKULAM. BY ADV. SRI.K.S.ARUN KUMAR SMT.MAYA ANTHARJANAM RESPONDENT(S): --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 82 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of January, 2009 O R D E R The petitioner is the first accused in a crime registered alleging offences punishable under the Kerala Abkari Act. The crux of the allegations is that 27 litres of IMFL were transported in a Maruti van belonging to the petitioner. He was arrested. The vehicle was seized. The petitioner has later been enlarged on bail. He applied before the learned Magistrate for release of the vehicle. That prayer was rejected noting that proceedings under Section 67B of the Kerala Abkari Act are contemplated. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. There is no scope for initiation of proceedings under Section 67B at all. The liquor that was transported was purchased validly from the outlet of the Beverages Corporation. It is not illicit liquor. At any rate, no proceedings under Section 67B has been initiated so far. The Crl.M.C.No. 82 of 2009 2 seizure was on 4.11.2008. The petition filed by the petitioner was dismissed on 26.11.2008. Even till this day not even a notice under Section 67B of the Act has been issued. The vehicle is exposed to sun and rain causing damage and deterioration. In these circumstances subject to appropriate conditions the vehicle may be ordered to be released to the petitioner, it is prayed. 3. I have considered all the relevant circumstances. Notice was given to the learned Prosecutor, who submits that action under Section 67B is contemplated. No notice has so far been served on the petitioner admittedly. I am, in these circumstances, satisfied that the prayer of the petitioner is absolutely justified and the vehicle, seizure of which has been reported to the Magistrate, can be directed to be released to the petitioner subject to appropriate terms and conditions. Appropriate safeguards can be insisted to secure the interests of the Excise officials, should they choose ultimately to direct confiscation under Section 67B of the Act. In coming to this conclusion, the concerns expressed by the Supreme Court in the decision in Crl.M.C.No. 82 of 2009 3 Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638) do weigh with me heavily. 5. In the result: a) This Crl.M.C. is allowed. b) The impugned order is set aside. c) The vehicle in question shall be released to the petitioner on the following terms and conditions. i) The petitioner shall produce all documents before the learned Magistrate to show that he is the person entitled to possession of the vehicle. ii) He shall execute a bond for Rs. 2 lakhs with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. The Magistrate shall insist that the sureties offered are sufficient and solvent. iii) In the bond to be executed by the petitioner, he shall undertake to produce the vehicle before the learned Magistrate as and when directed or before the appropriate authority under Section 67B Crl.M.C.No. 82 of 2009 4 of the Kerala Abkari Act after the final order is passed in proceedings under Section 67B, if any initiated. (R. BASANT) Judge tm