PRADEEP v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934** **Crl.MC.No. 3525 of 2007 ( ) --------------------------CMP.9947/2007 of J.M.F.C.-I, KOLLAM** **-----------------** ## **PETITIONER(S)/ACCUSED NO.2:** **--------------------------** **PRADEEP, AGED 37 YEARS, S/O.GOPI, PUTHEZHATHU VEEDU, NEAR VEDIMARA DEVI TEMPLE THANNIPADAM, PARAVOOR, ERNAKULAM DISTRICT.** **BY ADV. SRI.C.C.THOMAS (SR.)** ## **RESPONDENT/COMPLAINANT & IST ACCUSED:** **-----------------------------------------** **1. STATE OF KERALA, REPRESENTED BY** - **SUB INSPECTOR OF POLICE, KILIKOLLOOR POLICE STATION** - **KOLLAM DISTRICT, REP. BY PUBLIC PROSECUTOR** - **HIGH COURT OF KERALA, ERNAKULAM.** **2. SUDHEESH, AGED 23 YEARS, S/O.ANANDAN, POTTASSERIL VEEDU, NEAR VALAVANA CHURCH THOPPIL ROAD, PARAVOOR, ERNAKULAM.** **PUBLIC PROSECUTOR SRI.ROY THOMAS R2 BY ADV. SRI.M.C.JOHN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** **CRL.M.C.No.3525 OF 2007** ## **APPENDIX** Petitioner's Exhibits :- Annexure A :- Copy of the report dated 26.10.2007 in CMP No.9947/2007 passed by the Judl. First Class Magistrate Court-I, Kollam. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.M.C. No.3525 of 2007 ------------------------------------Dated this the 17[th] day of December 2012** ## **O R D E R** Petitioner is the 2[nd] accused in crime No.96/2007 of Kilikolloor Police Station. He and the first accused were arrested by the police under section 41(1)(d) read with 102 of Cr.P.C. 2. On 11.07.2003 at about 3.00 A.M. they were found travelling in a Scorpio vehicle bearing registration No. KL-7-AN-581. It was reported that on inspection, the number plates seen on the front and rear side of the vehicle were fake and so subsequently, section 468 of IPC was added. It is further contended that the petitioner herein and the other accused (respondent No. 2 in this petition) were arrested and the vehicle as well as Rs.56,400/- which was in the dashboard were seized by the police. Later, a report was filed. On subsequent inspection of the vehicle, 3 Crl.M.C. No.3525 of 2007 -: 2 :- litres of spirit was seen concealed inside the back seat of that vehicle. The vehicle and the amount were produced before the learned Magistrate. According to the petitioner, the amount of Rs. 56,400/- belongs to him and it was used for their business purpose. 3. Crl.M.P. No.9947/2007 was filed by the petitioner before the learned Magistrate under section 451 of Cr.P.C. for getting interim release of the currency notes. The learned Magistrate as per interim order, (Annexure A1), dismissed the petition holding that the amount of Rs. 56,400 seized in this case was concealed in the vehicle and that it was the sale proceeds of illicit spirit. The learned counsel for the petitioner submits that allegation so made by the first respondent is incorrect. That apart, there is no provision in the Abkari Act which empowers the court or any authorized officer to confiscate the sale proceeds, it is further argued. 4. Section 34 of the Act deals with the power of the Crl.M.C. No.3525 of 2007 ## -: 3 :- ## Abkari Officer to: - “(a) seize and detain- - (i) any liquor or intoxicating drug: - (ii) any materials, still, utensil, implement or apparatus: - (iii) any receptacle or package or covering; and - (iv) any animal, cart, vessel or other conveyance, which he has reason to believe to be liable to confiscation under this Act.” ## It does not state anything about the sale proceeds. ## 5. Section 65 of the Act deals with the properties which are liable to confiscation, which reads : “In any case in which an offence has been committed under this Act, the liquor, drug, materials, still, utensil, implement or apparatus in respect or by means of which an offence has been committed shall be liable to confiscation. Any liquor or intoxicating drug lawfully imported, exported, transported, manufactured had in possession or sold or toddy lawfully drawn or tapped along with, or in addition to any liquor, intoxicating drug to toddy, liable to confiscation under this section, and Crl.M.C. No.3525 of 2007 -: 4 :- the receptacles, packages and coverings in which any such liquor, intoxicating drug, materials, still, utensil, implement or apparatus as aforesaid is or are found, and the other contents, if any, of the receptacles or packages in which the same is or are found, and the animals, carts, vessels or other conveyances used in carrying the same, shall likewise be liable to confiscation”. This section also does not empower confiscation of the sale proceeds. 6. Section 67B is the special provision which starts with a non obstante provision dealing with the procedure to be followed. It mandates that the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before the officer authorized by the Government in that behalf. It is stated that the Deputy Excise Commissioner is the officer authorized under section 67B. The amount in this case was not produced before the authorized officer as required under section 67B of the Act. That apart, section 67B of the Abkari Act does not say that any amount being sale proceeds of the licit or illicit liquor Crl.M.C. No.3525 of 2007 -: 5 :- should be dealt with under Sec.67B of the Abkari Act. Therefore, in none of these provisions there is any mention of the sale proceeds so as to support the contention advanced by the first respondent that the amount of Rs. 56,400/- being the sale proceeds is liable to confiscation. 7. The learned senior counsel appearing for the petitioner has relied upon a decision in **Gopakumar v. State of Kerala** [2011 (1) KLT 450] in support of his submission that the 'sale proceeds' is not liable to confiscation under the provisions of the Kerala Abkari Act. It was pointed out by this Court in the decision cited supra that unlike under the Customs Act where the sale proceeds thereof shall also be liable to confiscation, there is no such provision in the Abkari Act and so in the absence of such a provision, even if the case of the prosecution is accepted that the amount seized from the dash/box of the vehicle was the sale proceeds, it cannot be confiscated. The learned senior counsel submits that the amount in question is not Crl.M.C. No.3525 of 2007 -: 6 :- liable to be confiscated and as such the petitioner from whose possession it was seized is entitled to get release of the same. It was held by this Court in the decision cited supra : “As rightly argued by the learned senior counsel Kerala Abkari Act does not contain any provision for seizure or confiscation of the sale proceeds of any liquor, in violation of the conditions of the licence or the rules. S.121 of the Customs Act provides that where any smuggled goods are sold by a person, having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation. Such a provision is absent in the Abkari Act. In the absence of such provision, even if the case is that the cash seized from the cash counter was obtained by sale of liquor in violation of the conditions of the license, they cannot be seized or confiscated.” It is seen that in spite of the observations made by this Court in **Gopakumar's** case cited supra, the provision relating to confiscation has to be amended and as such the amount being the sale proceeds is only to be returned to the petitioner. The learned counsel for the 2[nd] respondent has Crl.M.C. No.3525 of 2007 -: 7 :- stated that he has no objection in ordering release of the amount to the petitioner. In the result, this Crl.M.C. is allowed. The amount of Rs.56,400/- seized in this case, which was the sale proceeds, shall be released to the petitioner. (It is made clear that this order would be the order passed under Sec.451 Cr.P.C.). The petition filed before the learned Magistrate was only under Sec.451 Cr.P.C. for interim release of the amount. The order passed under Sec.451 Cr.P.C. may be subject to the final order that may be passed by the learned Magistrate. Since that was the request made before the learned Magistrate, I find that the amount, being the sale proceeds, is to be released to the petitioner on his executing a personal bond for Rs.60,000/- (Rupees Sixty Thousand only). **N.K.BALAKRISHNAN, JUDGE.** Ds/Jvt