OMMEN MATHEW Vs. EXCISE COMMISSIONER TVM

JUDGEMENT

(1.) Learned Government Pleader prays time. File a statement within 2 months.

(2.) Learned counsel appearing for the petitioners submitted that confiscation proceedings cannot be initiated in respect of the vehicle seized in this case as no offence under the Abkari Act, 1077 (Kerala) is attracted. S.67B provides for confiscation by abkari officers and S.65 provides what things are liable for confiscation. Under S.65 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 is liable for confiscation or 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 or toddy is also liable for confiscation. Similarly, the receptacles, packages and coverings in which any such liquor, intoxicating drug, materials, still, utensil, implement or apparatus as seen earlier are found and other contents, if any, of the receptacles or packages and coverings in which the same is or are found, including animals, carts, vessels or other conveyance used in carrying the same also be confiscated. Under sub-S.1 of S.67B notwithstanding anything contained in this Act or in any other law for the time being in force where any liquor, intoxicating drug, materials, still, utensil, implement or apparatus or any receptacle or package or covering in which such liquor, intoxicating drug, materials, 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 provision of the Act, the officer seizing the same shall without unreasonable delay produce the same before an officer authorised by the Government in that behalf by notification in the Gazette may confiscate the same. Therefore, to confiscate the vehicle seized in this case, the articles seized from the vehicle should either be liquor, intoxicating drug. The articles seized in this case from the vehicle KL - 2C - 6384 are the ayurvedic preparations. It is not disputed that the first petitioner is having licence to prepare those ayurvedic medicines.

(3.) In such circumstances, for the reason that those ayurvedic medicines were transported in the vehicle KL - 2C - 6384 and that too on the basis that there is violation of R.10(1)(c)(i) of the Kerala Spirituous Preparations (Control) Rules, 1969, the vehicle is liable for confiscation is to be decided. Learned Government Pleader pointed out that the samples collected from ayurvedic preparations were sent for examination and if the percentage of ethyl alcohol exceeds the permissible limits, then the petitioners are liable to be prosecuted under the Abkari Act and in that case, the vehicle is also liable for confiscation. Necessarily these are aspects to be considered by the Deputy Excise Commissioner, who has initiated the proceedings for confiscation. But the Deputy Excise Commissioner is entitled to grant interim custody of the vehicle on conditions till the decision is taken. The Deputy Excise Commissioner is directed to grant interim custody of the vehicle to the third petitioner on sufficient conditions as sought for in Ext. P3 petition, without insisting for making cash deposit.