PRASAD Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) THE petitioner is the appellant. He approached this Court praying for the issue of a writ of mandamus directing the respondent to release his vehicle bearing registration No. KL-5-G-7108 on furnishing security in the form of immovable property to cover the market value of the vehicle pending the proceedings by the third respondent, the Assistant Excise Commissioner against the vehicle under the Abkari Act. THE petitioner is a transporter. His vehicle was seized and confiscation proceedings under S. 56 (b) of the Kerala Abkari Act were initiated against him. Even pending the confiscation proceedings the petitioner wanted his vehicle released. THE authority relying on R. 4 (2) (a) of the Kerala Abkari (Disposal of Confiscated articles ) Rules, 1996 directed the petitioner to deposit an amount equivalent to the market value of the vehicle for getting the release of the vehicle pending foe proceedings in terms Of that ms. THE petitioner seeks to challenge this order by submitting that his vehicle can be released even on his providing security by way of immovable property to the satisfaction of the concerned authority and the insistence of the deposit of value of the vehicle was nor justified. THE petitioner relied on a decision rendered by a. learned Single Judge in O. P, 8655 of 2000 in support of his contention by pointing out that in that case the vehicle allegedly involved in an abkari offence was permitted to be released on sufficient security in the form of immovable property for the value of the vehicle being furnished by the owner of the vehicle. THE learned Single Judge did not accept the contention of the petitioner. THE learned Single Judge relied on S. 4 (2) (a) of the Kerala abkari (Disposal of Confiscated articles) Rules, 1996 to find that the said rule has application in the present case and further found that in terms of that Rule security by way of immovable property was clearly not sufficient. But the learned Single Judge stretched a point in favour of the petitioner that there is no insistence of the deposit of the value of the vehicle in cash on a literal understanding of the Rule, but the vehicle can be released even on the petitioner furnishing bank guarantee for an amount equivalent to the value of the vehicle. For that the learned Single Judge relied on a decision in Aji kumar v. Asst. Excise Commissioner (1999 (1) KLT 132 ). Thus the petitioner was permitted to get the vehicle released temporarily on furnishing bank guarantee for the value of the vehicle in accordance with the provisions of R. 4 (2) (a) of the Kerala Abkari (Disposal of Confiscated articles ) Rules, 1996. It is feeling aggrieved by this judgment that this Writ Appeal is filed.

(2.) LEARNED counsel for the petitioner submitted that the learned judge ought to have followed the decision in O. P. 8655 of 2000, a copy of which is produced as Ext. P5 in the Original Petition, and ought to have ordered release of the vehicle temporarily on furnishing security by way of immovable property by the petitioner. But on a reference to the judgment in o. P. 8655 of 2000, we find that R. 4 (2) (a) was not brought to the notice of the learned judge who passed that order. Nor does the said decision deal with the scope of R. 4 (2) (a) of the Kerala Abkari (Disposal of Confiscated articles)Rules, 1996. Under such circumstances, in matters involving abkari offences and covered by R. 4 (2) (a) of the Kerala Abkari (Disposal of Confiscated articles )Rules, 1996 it has to be held that the decision in O. P. 8655 of 2000 cannot be considered to be an authority. Therefore we are of the view that the said decision has no relevance in understanding the scope of the rule with which we are concerned. If the learned judge has intended to lay down that, notwithstanding Rule 4 (2) (a) of the Kerala Abkari (Disposal of Confiscated articles ) Rules, 1996 the vehicle can be released temporarily by way of furnishing security by way of immovable property, with respect, we have to hold that the said view could 'not-be accepted since it is against the plain terms of the rule and hence the said decision must be overruled. But as we have noted, the attention of the learned judge was not drawn to the relevant rule and the said decision cannot be treated as an authority.