NIRMALA Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) The petitioner, a woman, is the owner of a vehicle. That vehicle was seized by the excise officials on the allegation that it was used for the commission of offences punishable under the Kerala Abkari Act. The seizure was reported to the learned Magistrate. The petitioner filed an application for release of the vehicle to her. Her application was opposed. The prayer was rejected on the short ground that proceedings under Section 67 B of the Kerala Abkari Act are liable to be initiated against her and her vehicle. The petitioner has come to this Court complaining that the learned Magistrate, notwithstanding the right of the excise officials to initiate proceedings under Section 67 B of the Kerala Abkari Act, must have issued directions for release of the vehicle. The petitioner contends that no notice under Section 67 B of the Kerala Abkari Act has been received by the petitioner at all.

(2.) The learned Public Prosecutor took notice on behalf of the respondents. The learned Public Prosecutor was requested to specifically explain to the Court whether any proceedings under Section 67 B of the Kerala Abkari Act has been initiated against the petitioner or her vehicle. There is no specific assertion that any specific act has been performed in exercise of the powers under Section 67 B of the Kerala Abkari Act.

(3.) I am satisfied, in these circumstances, that the petitioner's prayer for release of the vehicle deserves to be considered favourably, subject of course to her liability to produce the vehicle before the officials of the Excise Department in pursuance of orders if any passed in proceedings under Section 67 B of the Kerala Abkari Act. The decision in Sunder Bhai Ambalal Desai v. State of Gujarat [A.I.R 2003 S.C 638] makes it very clear that the unfortunate event of the vehicle being exposed to sun and rain in courts and before the other functionaries must be avoided. I am, in these circumstances, satisfied that a direction can be issued for the release of the vehicle to the petitioner on appropriate terms by the learned Magistrate on condition that he proves that he is entitled to the possession of the vehicle. Inter alia, the learned Magistrate must impose the condition that the vehicle must be produced before the Excise Officials as and when directed in pursuance of orders passed under Section 67 B of the Kerala Abkari Act.