Jyothismon P.S. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 ``` ``` WP(CRL.) NO. 393 OF 2021 ``` ## **`PETITIONER :`** ``` JYOTHISMON P.S., AGED 41 YEARS S/O.SUDHODARAN, POYKAYIL HOUSE, NEDUMKUNNAM P.O., KOTTAYAM DISTRICT-686 542. ``` ``` BY ADVS.NAVEEN.T ``` ``` CHITHRA CHANDRASEKHARAN ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES(EXCISE) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.` - `2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.` - `3 THE ASST.EXCISE COMMISSIONER, OFFICE OF THE ASSISTANT EXCISE COMMISSIONER, KOTTAYAM-686 002.` - `4 THE DEPUTY EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, KOTTAYAM-686 002.` - `5 THE EXCISE INSPECTOR, CHANGANASSERY EXCISE RANGE, CHANGANASSERY-686 101.` ## **`OTHER PRESENT:`** ``` PP SRI V S SREEJITH ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(Crl.) 393 of 2021 -:2:- ## JUDGMENT Dated this the 14[th] day of June, 2022 ## This Writ Petition is filed under Article 226 of the Constitution of India seeking for the following reliefs: “i. Issue a writ of mandamus or any other appropriate writ, direction or order directing the 4[th] respondent to release the car, bearing registration No.KL-33-M/3092 to the petitioner forthwith. ii. Issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to get the car bearing registration No.KL-33-M/3092 released forthwith. iii. Grant such other and further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” ## 2. The averments of the writ petitioner are as follows: He is the registered owner of a Hyundai Santro Car bearing registration No.KL-33-M/3092. True copy of the certificate of registration of the vehicle is produced alongwith the petition on hand as Ext.P1. He is hailing from a traditional Ayurveda Physician’s family and the family has been engaged in providing Ayurveda treatment for the past more than 70 years. Petitioner’s wife is also an Ayurveda Doctor. Medicines like ‘Arishtas’ and WP(Crl.) 393 of 2021 -:3:- ‘Asavas’ of Kottakkal Arya Vydyasala and Thykkattu Moose are being used for treatment purposes in the clinic run by the petitioner and his family. A car owned by the petitioner was seized by the 5[th] respondent on 23.05.2020 alleging that it was used for transportation of 54 liters of illicit ‘Arishtas’. A seizure mahazar was prepared on 23.05.2020 by the Preventive Officer, Excise Range Office, Changanacherry while seizing the alleged ‘Arishta’ and the car owned by the petitioner, true copy of which is produced alongwith the petition on hand as Ext.P2. CR. No.57/2020 was registered by Excise Range Office, Changanacherry alleging commission of offences punishable under Sections 58B and 67B of the Kerala Abkari Act,1077 (for short ‘the Act’) by the writ petitioner, true copy of which is produced alongwith the petition on hand as Ext.P3. 3. One Mr.Sureshkumar, who allegedly brought the Arishta in the car was implicated as the sole accused in the crime. According to the petitioner the alleged Arishta was transported in the vehicle solely for the purpose of giving it to the patients in his clinic. The vehicle used for transportation of Arishta, is now in WP(Crl.) 393 of 2021 -:4:- the custody of the 5[th] respondent and seeking its release, the Writ Petition is filed. 4. According to the learned counsel, allegedly the petitioner has transported Arishtas in the vehicle owned by him. According to him, as per the judgment of Single Bench of this Court reported in Priaymvada P.G. v. State of Kerala and Others [2015 (5) KHC 63], Ayurvedic medicines transported by the petitioner are, perhaps intoxicating drugs, but remain out of purview of the Act, as they have not been notified. Accordingly, as a natural corollary it was held that Ayurvedic medicines cannot be treated as liquor as has been defined in Sub-section (10) of Section 3 of the Act, or falling within the mischief of Section 56(b) or Section 67B(a) of the Act. 5. It is contended by the learned counsel on the basis of the certificate of chemical analysis in the case on hand that the average content of Ethyl Alcohol in the sample analysed is 9.95% and therefore, the contraband seized will not come within the purview of the ‘Note’ appended to the definition of ‘spurious preparations’ under Rule 3( `l` ) of the Kerala Spirituous Preparations (Control) Rules, 1969 (for short ‘Rules, 1969’). WP(Crl.) 393 of 2021 -:5:- 6. The learned counsel has also pointed out that the offence under Section 58B of the Act for which the petitioner stands chargesheeted, would be attracted only when the petitioner is engaged in manufacture of any preparations which in the opinion of the Commissioner can be used as a substitute for alcohol. Sub-Clause (2) of the said provision says that nothing contained in this Section shall apply in the case of any medicinal preparation which is generally used for or in the treatment, mitigation or prevention of disease in human beings or animals. The counsel has contended that when the case of the prosecution was that Arishta was being transported in the car and it stands held by the dictum supra as not a drug notified under the Act, the allegation that the petitioner has committed an offence under Section 58B of the Act will be defeated. 7. The learned counsel has also contended on the basis of Section 67B that while confiscating a vehicle involved in the Abkari offence, the authorised officer has to be satisfied that an offence under the Act has been committed in respect of or by means of that property and that such property is liable for confiscation under this Act. According to the learned counsel WP(Crl.) 393 of 2021 -:6:- when the offence alleged is unlikely to be attracted, the vehicle allegedly involved cannot be said to have used for transportation of a prohibited substance and thereby not liable for confiscation under Section 67B of the Act. 8. Learned Public Prosecutor was asked to obtain instructions regarding finality of the judgment of the Single Bench. The learned Public Prosecutor on instructions obtained copies of the judgment of Division Bench in WA No.546/2016 in WP(C) No.13743 of 2012 and also the judgment of the Apex Court in State of Kerala and Others v. P.G. Priyamvada . It is noticed from the judgment of the Division Bench in WA No.546/16 that the appeal stands dismissed confirming the judgment of the Single Bench in WP(C) No.13743 of 2012. It is noticed from the order passed by the Apex Court in a Special Leave Petition that the Special Leave Petition was also dismissed. 9. In the case supra, as the allegations of the prosecution stand, the 4[th] respondent intercepted and seized the Maruthi Omni Van belonging to the petitioner for transporting about 131.52 liters of ‘Arishta’ and 18 litres of Asavas (Ayurvedic preparations). Crime No.45/2009 was registered by the 4[th] WP(Crl.) 393 of 2021 -:7:- respondent against the son of the petitioner for offences under Rules 9 and 10 of the Kerala Spirituous Preparations (Control) Rules, 1969 (for short ‘Rules, 1969) and also under Section 56(b) and 67B(a) of the Abkari Act. In the meantime, the seized vehicle was produced before the authorised officer, who after completing the legal formalities confiscated it under Section 67B of the Act. Accused earned a conviction through a judgment by pleading guilty. The trial judge imposed a fine of Rs.2,000/under Section 56(b) of the Act. The seized property was entrusted to the authority for disposal as per the Rules. 10. Assailing the confiscation of the motorcycle, the petitioner filed appeal but it was dismissed. In the revision filed against, an order was passed dismissing it. Impugning the order passed in revision, W.P.(C) No.13743 of 2012 was filed by the petitioner, wherein the above dictum was laid by the learned Single Judge. 11. The dictum of the learned Single Judge referred to supra has become final in view of the dismissal of the proceedings challenging the same before the higher forums. WP(Crl.) 393 of 2021 -:8:- 12. In view of the settled position discussed above, the contraband seized being not a drug notified under the Act, the offence under Section 58B is unlikely to be attracted and therefore, the vehicle is not liable to be confiscated. ## 13. Note appended to Rule 3( `l` ) reads : “ Note :- Asavas and Arishtas or other preparations containing alcohol which is only self-generated shall be deemed as spurious preparations if the alcohol content of any such preparation exceeds 12% by volume, unless otherwise declared by the Expert Committee.” As per the certificate of chemical analysis made available by the learned Public Prosecutor the percentage of Ethyl Alcohol in the sample of the contraband forwarded to the chemical examiner’s laboratory is 9.95% in average. As per the Note extracted above, Asavas and Arishtas shall be deemed as spurious preparation only when the alcohol content in any such preparation exceeds 12% by volume unless otherwise declared by the Expert Committee. Therefore, the content of Ethyl Alcohol in the sample of the contraband being less than 12%, it would not come within the term spurious preparations. For the above reasons, Writ Petition is only to be allowed. WP(Crl.) 393 of 2021 -:9:- In the result, WP(Crl.) stands allowed. The 4[th] respondent is directed to release the car bearing registration No.KL-33-M/3092 to the petitioner forthwith. MARY JOSEPH, JUDGE. ttb WP(Crl.) 393 of 2021 -:10:- ## **`APPENDIX OF WP(CRL.) 393/2021`** ``` PETITIONER’S EXHIBITS : ``` - `Exhibit P1 TRUE COPY OF THE REGISTRATION CERTIFICATE IN RESPECT OF THE CAR BEARING NO.KL 33 M 3092.` - `Exhibit P2 TRUE COPY OF THE SEIZURE MAHASAR DATED 23.05.2020 PREPARED BY THE PREVENTIVE OFFICER OF THE CHANGANCHERRY EXCISE RANGE OFFICE.` - `Exhibit P3 TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN CR NO.57/2020 OF CHANGANACHERRY EXCISE RANGE DATED 23.05.2020.` - `Exhibit P4 TRUE COPY OF THE REQUEST DATED 23.06.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.` - `Exhibit P5 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 15.06.2020 ISSUED BY THE 4TH RESPONDENT.` - `Exhibit P6 TRUE COPY OF THE REQUEST DATED 27.06.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.` - `Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 16.04.2021 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.` - `Exhibit P8 TRUE COPY OF THE ORDER DATED 25.11.2020 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT 1, CHANGANASSERY IN CMP NO.2807/2020 IN CR.NO.57/2020 OF EXCISE RANGE OFFICE, CHANGANASSERY.` - `Exhibit P9 TRUE COPY OF THE ORDER DATED 08.04.2021 IN CRL.MC NO.1004/2021 OF THIS HON'BLE COURT.` ``` Exhibit P10TRUE COPY OF THE NOTICE DATED 28.09.2021 ISSUED BY THE 4TH RESPONDENT. ``` ``` Exhibit P11TRUE COPY OF THE STATEMENT SENT BY THE PETITIONER THROUGH E MAIL ON 12.10.2021 TO THE 4TH RESPONDENT. ```