High Court of KeralaSingle Judge2016-10-18Petitions disposed of; impugned order set aside...

Crl.M.C. Nos. 6736 & 6738 of 2016

Case / Petition Number:Crl.M.C. Nos. 6736 & 6738 of 2016

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2016-10-18
Court Decision / Holding: The learned Magistrate’s order is set aside. The High Court directs the Magistrate to consider the matter afresh and to pass fresh orders in accordance with law, subject to any confiscation orders under the Abkari Act. Petitions are disposed of.
Final Disposition: Petitions disposed of; impugned order set aside; matter remanded for fresh, law‑compliant consideration.

Parties to the Case

Appellants / Petitioners

Anil Kumar
Owner of vehicle KL-45-B-1001 (car SX4)

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri Mansoor B.H.

Counsels for Respondents

• Public Prosecutor Sri T.R. Renjith

Case Synopsis & Summary

Two criminal miscellaneous petitions, Crl.M.C. Nos. 6736 and 6738 of 2016, were heard by a single judge of the Kerala High Court. The petitioners challenged an order of the Judicial First Class Magistrate, Irinjalakuda, which had refused interim release of two seized vehicles linked to a crime under the Abkari Act, alleging illicit liquor manufacture and transportation. Although no contraband was found inside the vehicles at the time of seizure, the prosecution argued that the vehicles were primarily used to transport contraband liquor and that substantial quantities of illicit Indian Made Foreign Liquor and spirit were seized from the rented premises. The petitioners relied on decisions including V.P. Paulson v. Assistant Excise Commissioner and Others (2006(4) KLT 965) and the Supreme Court’s decisions in Sunderbhai Ambalal Desai v. State of Gujarat and General Insurance Council v State of Andhra Pradesh to contend that the vehicles should be released provisionally under Section 53B of the Abkari Act with conditions, rather than kept in police custody. The court observed the hazards of long police storage—damage, weather exposure and theft—and emphasized that, subject to any confiscation orders under Section 67B, the Magistrate has power to release on bond and conditions. It set aside the impugned order and remanded for fresh, law‑consistent consideration. Ultimately, the judge concluded that immediate, conditional release would serve the ends of justice by preventing asset loss and ensuring timely disposal, while safeguarding the State's potential confiscation rights.

Provisions of Law Cited

Abkari Act, Section 12(C)Abkari Act, Section 55(a)Abkari Act, Section 55(b)Abkari Act, Section 55(f)Abkari Act, Section 55(g)Abkari Act, Section 55(h)Abkari Act, Section 55(i)Abkari Act, Section 55(C)Abkari Act, Section 55(D)Abkari Act, Section 55(E)Abkari Act, Section 58Abkari Act, Section 53BAbkari Act, Section 67B

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that no contraband substance was found inside the seized vehicles, and that mere historical use for contraband transport does not warrant permanent confiscation of the vehicles. Relying on V.P. Paulson v. Assistant Excise Commissioner and Others (2006(4) KLT 965), they submit that the seized vehicles are not ipso facto liable to confiscation and that the Magistrate has power under Section 53B of the Abkari Act to grant conditional interim release. They argue that long storage in police custody causes irreparable damage to the vehicles and defeats justice; thus, release with bonds and conditions is appropriate, particularly when ongoing investigation would still safeguard the State’s interests under Section 67B. The applicants also invoke the principle from Sunderbhai Ambalal Desai v. State of Gujarat and General Insurance Council v State of Andhra Pradesh to urge timely disposal and conditional release rather than permanent seizure, arguing that immediate action under Section 53B is justified to prevent deterioration and preserve vehicle value while protecting the State’s confiscation rights.

Contentions of Respondents

The State, represented by the Public Prosecutor, submits that a large quantity of illicit Indian Made Foreign Liquor and spirit was seized, and the vehicles were primarily used for transporting contraband. The Respondents urge that the petitions were rightly dismissed because the vehicles were connected with the offence and there is risk of evading confiscation. They contend that the court should not direct release, as the matter is still under investigation and any interim order would prejudice the confiscation process under the Abkari Act.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
V.P. Paulson v. The Assistant Excise Commissioner and Others	2006(4) KLT 965	Positive	Cited to support the proposition that seized vehicles are not ipso facto liable to confiscation and may be released under Section 53B with conditions.
Sunderbhai Ambalal Desai v. State of Gujarat	2003(2) KLT 1089	Positive	Cited as a controlling authority on avoiding unnecessary detention of seized vehicles and permitting release with safeguards.
General Insurance Council and Others v State of Andhra Pradesh and Others	2010(6) SCC 768	Positive	Cited for principles supporting interim release with conditions and timely disposal in such contexts.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Crl.M.C. Nos. 6736 & 6738 of 2016 and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938** **Crl.MC.No. 6736 of 2016 () --------------------------CRMP 6214/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA** **----------** **PETITIONER(S)/ACCUSED:-: -----------------------** **ANILKUMAR, AGED 39 YEARS, S/O.KUMARAN, CHITTEZHATH HOUSE, PALLINADA, SANTHIPURAM, KODUNGALLUR.** **BY ADV. SRI.MANSOOR.B.H.** ## **RESPONDENT(S)/COMPLAINANT/STATE:-:** **----------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, THROUGH STATION HOUSE OFFICER, IRINJALAKUDA POLICE STATION, THRISSUR DISTRICT.** **BY PUBLIC PROSECUTOR SRI.T.R. RENJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-10-2016, ALONG WITH CRMC. 6738/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** **Crl.MC.No. 6736 of 2016 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** |**ANNEXURE A: COPY OF THE APPLICATION SEEKING INTERIM**| |---| |**CUSTODY OF VEHICLE CRL.M.P NO.6214/2016**| |**JUDICIAL FIRST CLASS MAGISTRATE COURT,**| |**IRINJALAKUDA.**| |**ANNEXURE B: CERTIFIED COPY OF THE ORDER DATED 28.09.2016**| |**OF JUDICIAL FIRST CLASS MAGISTRATE COURT,**| |**IRINJALAKUDA IN CRL.M.P NO.6214/2016**| |**IN CRIME NO.1361/2016 OF IRINJALAKUDA POLICE**| |**STATION.**| |**RESPONDENT(S)' EXHIBITS**<br>**:**<br>**NIL.**| **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. Nos.6736 & 6738 of 2016** -----------------------------------------Dated this the 18[th] day of October, 2016 ## **O R D E R ~~~~~~~~** 1.The petitioner in Crl.M.C. No 6736 of 2016 is the 1[st] accused in Crime No.1361 of 2016 of Irinjalakuda Police Station. Though the petitioner in Crl.M.C.No.6738 of 2016 is not an accused in the aforesaid crime, his vehicle bearing Reg.No.KL-45-B-1001 was seized by the detecting officer. The aforesaid Crime has been registered alleging offences punishable under Sections 12(C), 55(a), (b), (f), (g), (h), (i), 55(C), 55(D), 55(E) and Section 58 of the Abkari Act. Since identical issues are involved, both these petitions are taken up and disposed of together. - 2.The prosecution allegation is that accused Nos. 1 to 6 were found engaged in the manufacture of illicit Indian **Crl.M.C. No.6736 & 6738 of 2016 -2-** Made Foreign Liquor in a rented house at Vellanalloor, Irinjalakkuda. The vehicle bearing Reg. No.KL-47-D-2700 (Etios Car) owner by the petitioner in Crl.M.C.6736 of 2016 and the vehicle bearing Reg. No.KL-45-B-1001 (SX4 Car) were found parked in the premises of the rented house. According to the prosecution, the said vehicles were being used for transportation of illicit liquor. - 3.The applications filed by the petitioners seeking interim release of the vehicles were dismissed by Annexure-B order. The same is under challenge. - 4.It is contended by the learned counsel appearing for the petitioners, that no contraband article was found inside the vehicle. Referring to the decision of this Court ## **V.P.Paulson v. The Assistant Excise Commissioner** - **and Others** [2006(4) KLT 965], it is argued that the seized vehicles were not liable to be confiscated. It is further urged that the learned Magistrate was well **Crl.M.C. No.6736 & 6738 of 2016 -3-** empowered under Section 53B of the Abkari Act 1 of 1077, to release temporarily the said vehicles by imposing appropriate conditions. It is also submitted that the vehicles were seized on 10.7.2016 and the same is lying exposed to the vagaries of nature. It is prayed that in view of the decision of the Apex Court in **Sunderbhai Ambalal Desai v. State of Gujarat** [2003(2) KLT 1089] and in **General Insurance Council and Others V State of Andhra Pradesh and Others [** 2010 (6) SCC 768 ] the learned Magistrate ought to have allowed the application by imposing appropriate conditions. - 5.The learned Public Prosecutor, on the other hand, countered the submissions and would contend that large quantity of illicit Indian Made Foreign Liquor and spirit was seized from the rented premises. Investigation revealed that the said vehicles were primarily used for transportation of the illicit liquor, though at the time of **Crl.M.C. No.6736 & 6738 of 2016 -4-** seizure no contraband was found inside the vehicles. According to the learned Public Prosecutor, no interference is warranted in the facts and circumstances. - 6.I have considered the rival submissions and have gone through the materials on record. The learned Magistrate has dismissed the applications on the ground that the investigation revealed that the vehicles had been earlier used for transportation of contraband liquor. This was sufficient enough reason to dismiss the applications, according to the court below. - 7.Gravity of allegations apart, the learned Magistrate ought to have considered whether any purpose would be served in retaining the vehicles in the precincts of the Police Station. Subject to the confiscation orders, if any, to be passed under Section 67 B of the Abkari Act , the learned Magistrate is well empowered to release the vehicles by imposing appropriate conditions as provided under Section ## **Crl.M.C. No.6736 & 6738 of 2016 -5-** 53 B of the Act. 8.As held by the Apex Court in the above decisions, it is a matter of common knowledge that when vehicles are seized and kept in various police stations, it would only enure to occupy substantial space of the police stations. In all cases, they are left in the open and the vehicles will get irretrievably damaged on account of weather conditions. Even a well maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that the parts get stolen causing further damage. The Apex Court has held that whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required ## **Crl.M.C. No.6736 & 6738 of 2016 -6-** at any point of time. 9.Having regard to the facts and circumstances, I set aside the impugned order and direct the learned Magistrate to consider the matter afresh and to pass fresh orders in accordance with law Petitions are disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/19/10/16