State Of Kerala vs C.A.Jabbar

State of Kerala ..Appellant

Versus

C.A. Jabbar ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single

Judge of the Kerala High Court. Respondent had filed an application for

release of Maruti Omni Van of which he claimed to be the owner. Learned

Judicial First Class Magistrate rejected the prayer for release in terms of Section 457 of the Code of Criminal Procedure, 1973 (in short the `Code').

The vehicle was seized in terms of Section 55(a) of the Abkari Act. The

appellant took the stand that the vehicle was stolen and the matter was

reported to the police and on the same day the vehicle was detected by the

police. A case was registered under Section 55(a) of the Act against four

accused persons. The application for release was rejected on the ground that

the vehicle has been entrusted to the Assistant Excise Commissioner for the

purpose of confiscation. The respondent approached the Assistant Excise

Commissioner and he was directed to furnish bank guarantee equal to the

value of the vehicle as fixed by a Mechanical Engineer before the High

Court. Appellant had questioned the order taking the stand that he was

unable to raise the amount required for the bank guarantee and, therefore,

the vehicle should be released without any condition. The High Court held

that in view of the factual scenario the Assistant Excise Commissioner,

Idukki was to release the vehicle to the respondent after ascertaining the

ownership on executing a bond of Rs.50,000/- with two solvent sureties for

the like sum.

3. Questioning correctness of the order passed, learned counsel for the

appellant submitted that without availing the statutory remedy the

2 respondent should not have approached the High Court and in any event the

High court should not have interfered.

4. Section 67-B of the Act reads as follows:

"67B. Confiscation by Abkari Officers in certain cases.-

(1) Notwithstanding anything contained in this

Act or in any other law for the time being in force, where

any liquor, intoxicating drug material, still, utensil,

implement or apparatus or any receptacle, package or

recovering in which such liquor, intoxicating drug,

material, still, utensil, implement or apparatus is found or

any animal, cart, vessel, or other conveyance used in

carrying the same is seized and detained under the

provisions of this Act; the officer seizing and detaining

such property shall, without any unreasonable, produce

the same before an officer authorized by the Government

in this behalf by notification in the Gazette, not being

below the rank of an Assistant Excise Commissioner

(hereinafter referred to as the authorized officer.)

3 (2) Where an authorized officer seizes and

detains any property specified in sub-section (1) or where

any such property is produced before an authorized

officer under that sub-section and he is satisfied that an

offence under this Act has been committed in respect of

or by means of that property and that such property is

liable to confiscation under this Act, such authorized

officer may, whether or not a prosecution is instituted for

the commission of such offence, order confiscation of

such property and where such property consists of any

receptacle or package, the authorized officer may also

order confiscation of all contents thereof.

(3) When making an order of confiscation under

sub-section (2), the authorized officer may also order that

such of the properties to which the order of confiscation

relates, which in his opinion cannot be preserved or are

not fit for human consumption, be destroyed."

5. Section 67E of the Act deals with the appeal in respect of an order

passed under Section 67B of the Act while Section 67F refers to the power

4 of revision in respect of an order under Section 67B and 67E and can be

exercised on his own motion by the Commissioner. Admittedly, the statutory

remedies have not been availed. The High Court ought not to have

interfered in a matter when statutory remedies are provided. In the instant

case it is submitted by the respondent that pursuant to the High Court's order

dated 26th October, 2006 the vehicle has been released.

6. However, the direction for release or executing a bond seems to be

without any justification when Assistant Excise Commissioner had directed

furnishing of the bank guarantee equal to the value of the vehicle. The High

Court had not indicated any reason as to why that part of the order was

interfered with.

7. We dispose of the appeal with the direction that in addition to the

personal bond executed for securing release of the vehicle, the respondent

shall within a period of six weeks from today furnish bank guarantee for the

sum of Rs.25,000/- to the satisfaction of the Assistant Excise Commissioner

concerned. If the bank guarantee is not furnished, the concerned official

shall be free to cancel the bond and to take possession of the vehicle in

question.

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8. The appeal is disposed of accordingly.

..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, May 01, 2009

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