IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 Crl.MC.No. 398 of 2008() ------------------------ CMP.32/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... PETITIONER: ------------ SANTHOSH,S/O.THANKAPPAN AGED 34, KIZHAKKATHILVEEDU KAIPPOLIL, THEKKUMURI, ADINAD VILLAGE KARUNAGAPPILLY TALUK. BY ADV. SRI.K.R.SUNIL RESPONDENTS: ------------- THE EXCISE INSPECTOR, EXCISE RANGE CHIRAYANKEEZH REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.M.K.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ========================= CRL.M.C.NO.398 OF 2008 ========================= Dated this the 8th day of February 2008 ORDER The petitioner, who claims to be the registered owner of a Tata 407 Mini Lorry bearing Reg.No.KL-23/9974, moved the JFCM I, Attingal by filing CMP 32/2008 for interim custody of the vehicle. The vehicle was seized by the Excise Inspector, Chirayinkeezhu in connection with CR No.56/2007 registered for offences punishable under Sections 58 and 65 of the Abkari Act. The learned Magistrate dismissed the application on the ground that since the vehicle was liable to confiscation and was produced before the Assistant Excise Commissioner on 28.11.2007, the Magistrate cannot entertain the petition. 2. Actually, the offence which is prima facie made out against the accused in the case is only one punishable under Section 56(a) of the Abkari Act for the failure to produce the permit for transporting toddy. The permit entitling the accused to transport toddy was subsequently produced also. There is no case for the prosecution that the toddy transported in the lorry CRL.M.C.223/2008 2 was illicit, contraband liquor attracting the offences punishable under Sections 58 to 65 of the Abkari act. Hence it cannot be said that an offence has been committed in respect of or by means of the mini lorry, so as to attract Section 65 of the Act to warrant initiation of the confiscation proceedings. If so, the Magistrate should have entertained the application for interim custody. Accordingly, Annexure-A5 order dated 5.1.2008 in CMP 32/2008 passed by the JFCM I, Attingal is set aside. The said application will stand allowed on appropriate conditions including the execution of a bond to be ordered by the Magistrate. Crl.M.C. is allowed as above. V.RAMKUMAR, JUDGE css/