Pareed Musaliyar v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 1[ST]DAY OF MARCH 2023 / 10TH PHALGUNA,1944 WP(C) NO. 22135 OF 2020 ``` ## **`PETITIONER/S:`** ``` PAREED MUSALIYAR AGED 59 YEARS S/O KHADER, METTOLIL, KOTTAPPURAM, ALANGADU, ERNAKULAM DISTRICT BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REP. BY THE SECRETARY, EXCISE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT), THIRUVANANTHAPURAM-695 001. 3DEPUTY EXCISE COMMISSIONER, OFFICE OF THE DEPUTY EXCISE COMMISSIONER, DIVISION OFFICE B2 BLOCK, CIVIL STATION , MALAPPURAM-676 505. ``` ``` SMT. MABLE C KURIAN, SR. GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON01.03.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C) No. 22135 of 2020 2 ## **JUDGMENT** The petitioner herein is the registered owner of a Tempo Traveler bearing Registration No.KL-7-BC-4141. On the premise that the vehicle of the petitioner was used in connection with Crime No.361/2010 on the file of the Wandoor Police Station registered for offenses inter alia under Section 302 of the IPC and Section 57A of the Abkari Act, the vehicle was seized. The Deputy Excise Commissioner thereafter invoked his powers under 67B of the Abkari Act and ordered the confiscation of the vehicle. Though an appeal was preferred before the Additional Excise Commissioner (Enforcement), the same was also confirmed. 2. Challenging the said order, the petitioner approached this Court and filed W.P.(C) No.33648 of 2011. By judgment dated 16.10.2015, a copy of which is produced as Ext.P1, the learned Single Judge quashed Ext.P7 order issued by the Additional Excise Commissioner, Enforcement, and directed the respondents therein to release forthwith the cash security lying with them on account of the interim release of the vehicle. The judgment of the learned Single Judge was challenged by the State by preferring Writ Appeal No.267/2016. By Ext.P2 judgment dated 25.01.2018, the Division Bench of this Court, after considering the W.P.(C) No. 22135 of 2020 3 materials on record, affirmed the finding of the learned Single Judge and dismissed the appeal. However, liberty was granted to the prosecution to take appropriate contentions before the criminal court. It was also ordered that such proceedings would stand unaffected by the judgment rendered by the Division Bench. It is also ordered that if the accused is found guilty ultimately and the use of the vehicle is also proved, then, in such an event, the prosecution could insist on such confiscation by the court. 3. The grievance of the petitioner is that despite the judgment rendered by this Court, the respondents have not released the amount of Rs.3 lakhs which was deposited by the petitioner at the time of the grant of interim custody. The petitioner states that seeking enforcement of the directions issued by this Court, he has submitted Ext.P3 representation and thereafter issued a lawyer's notice on 25.06.2020. Complaining of inaction, this writ petition is filed seeking the following reliefs: i) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 2 & 3 to immediately disburse the amount of Rs.3,00,000/with 9% interest from 12.03.2018 till realisation deposited vide TSA No.4062 at District treasury Malappuram. ii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 2 & 3 to pay an amount of Rs.30,000/- as costs for the physical and mental stress and difficulties caused to the petitioner by the respondents by disobeying the Judgments of this Hon’ble Court. W.P.(C) No. 22135 of 2020 4 4. A counter affidavit has been filed by the 3rd respondent. After narrating the sequence of events, it is stated that the case against the accused is still pending on the files of the Additional District & Sessions Court II, Manjeri. It is stated that the respondents are entitled to retain the amount till a final decision is taken by the Sessions Judge. It is also stated that the 3rd respondent had granted the vehicle to the petitioner in interim custody in terms of the provisions of Rule 4(2)(a) of the Kerala Abkari (Disposal of Confiscated Article) Rules, 1996, as the vehicle was liable to be confiscated. 5. I have heard Sri. Vinay V., the learned counsel appearing for the petitioner and the learned Senior Government Pleader and has considered the submissions advanced. 6. Admittedly, the petitioner has not been made an accused in the crime. The learned Single Judge, after elaborately considering the facts and circumstances, took note of the fact that the vehicle was seized at a later point of time based on the confession of the accused. It is also observed that it cannot be said with certainty that it was the same vehicle that has been used for any illegal purposes. Relying on the law laid down in **Circle Inspector (Excise) Neyyanttinkara v. Mukundan** [1975 KHC 129], it was held that there could not be any confiscation of a third party's vehicle W.P.(C) No. 22135 of 2020 5 based on the confession of an accused. It was after analyzing the entire facts that Ext.P7 order of confiscation was set aside, and directions were issued to the respondents to forthwith release the cash security lying with them on account of the interim release of the vehicle. The judgment rendered by the learned Single Judge stands confirmed on all accounts by the Division Bench judgment. It appears that the amount remitted by the petitioner towards interim custody is not being released in view of the observation of the Division Bench that if the accused is ultimately found guilty by the Court, the prosecution could insist on such confiscation. It appears that the directions issued by the Division Bench have been misinterpreted by the respondents. Section 66 of the Abkari Act provides for confiscation by the Court. The said provision reads as under : ## Section 66: Confiscation how ordered. When the offender is convicted or when the person charged with an offence under this Act is acquitted but the Magistrate decides that anything is liable to confiscation, such confiscation may be ordered by the Magistrate. Whenever confiscation is authorised by this Act, the Magistrate ordering it may give the owner of the thing liable to be confiscated an option to pay in lieu of confiscation, such fine as the officer thinks fit. When an offence under this act has been committed, but the offender is not known or cannot be found or when anything liable to confiscation under this Act and not in the possession of any person cannot be satisfactorily accounted for, the case shall be inquired into and determined by the Commissioner or by any other W.P.(C) No. 22135 of 2020 6 officer authorised by the Government in that behalf, who may order such confiscation: Provided that no such order shall be made until the expiration of one month from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims: Provided further that if the thing in question is liable to speedy and natural decay, or if the Commissioner or any other officer authorised by the Government in that behalf is of opinion that the sale would be for the benefit of its owner, he may at any time direct it to be sold, and the provisions of this section shall, as nearly as may be practicable, apply to the net proceeds of such sale. 7. In the case on hand, the confiscation order was issued by the Abkari Officer under Section 67B of the Act. The said order has been overturned by this Court. All that was observed by this Court is the confiscation order to be passed by the Court after the conclusion of the trial. That stage has not yet been reached. Of course, the Court trying the offense can order confiscation, as observed by the Division bench of this Court but only by invoking the relevant provision under the Abkari Act. 8. In that view of the matter, I am of the considered opinion that the petitioner is entitled to succeed. This writ petition will stand allowed. There will be a direction to respondents 2 and 3 to forthwith release the amount of Rs.3 Lakhs, which has been deposited vide TSA No.4062 at W.P.(C) No. 22135 of 2020 7 District Treasury, Malappuram. If the amount is not disbursed within a period of eight weeks from today, it shall carry 12% interest. It is made clear that if the prosecution is able to successfully prove the involvement of the vehicle in the pending criminal proceedings, this order shall not stand in the way of the Trial Court in initiating appropriate proceedings to confiscate the vehicle in accordance with law. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** ``` NS ``` W.P.(C) No. 22135 of 2020 8 ## **`APPENDIX OF WP(C) 22135/2020`** ``` PETITIONER(S) EXHIBITS : ``` ``` EXHIBIT P1TRUE COPY OF THE JUDGMENT DATED 16.10.2015 IN WPC NO 33648/2011 EXHIBIT P2TRUE COPY OF THE JUDGMENT DATED 25.1.2018 IN WA NO.267/2016 EXHIBIT P3TRUE COPY OF THE REPRESENTATION DATED 12.3.2018 EXHIBIT P4TRUE COPY OF THE LAWYERS NOTICE DATED 25.6.2020 ``` ``` RESPONDENT(S) EXHIBITS : NIL ```