ADDITIONAL EXCISE COMMISSIONER (ENFORCEMENT) THIRUVANANTHAPURAM Vs. RAJESH KUMAR

JUDGEMENT

(1.) The impugned judgment set aside an order of confiscation on the strength of a Division Bench judgment in Priyamvada v. State of Kerala, (2015) 4 KLT 103. The learned Counsel appearing for the respondent submits that Priyamvada was challenged before the Hon'ble Supreme Court in an SLP, which was rejected. The learned Government Pleader on the basis of Kunhayammed v. State of Kerala, (2000) 6 SCC 359 submits that on the rejection of an SLP there is no precedent of the Hon'ble Supreme Court which binds this Court. The learned Government Pleader persuades us to have a re-look of the law as laid down in Priyamvada.

(2.) Priyamvada was a case in which a vehicle carrying Ayurveda preparations was detained and later confiscated. Ayurveda preparations were carried in the vehicle owned by the said Priyamvada who was an Ayurvedic physician practicing along with her son, who also was a qualified Ayurvedic Physician. In the criminal case charged against them, they pleaded guilty and were convicted and sentenced to a fine. The learned Magistrate after passing the order of conviction and sentence directed the Authoroised Officer under the Abkari Act (1 of 1077), to deal with the vehicle as provided under Section 67B of the Abkari Act. The Officer confiscated the vehicle which was interfered with by a learned Single Judge of this Court. The State challenged the judgment of the learned Single Judge before a Division Bench which concluded in Priyamvada.

(3.) The Division Bench of this Court considered Rule 9 and 10 of Kerala Spirituous Preparation Control Rules 1969 (hereinafter "Control Rules") and Sections 3(10), 56 (b) and 67 B(2) of the Abkari Act. The Division Bench found that transport was with a licence; wherein a certain amount of spirituous preparations were allowed to be possessed by the licencee. Rule 9 relating to transport under the Control Rules was extracted to find that a transport permit is required only when there is movement of spirituous preparation in excess of the quantity permitted to be possessed under Rule 10. Section 56 (b) and Section 67B were also extracted. It was noticed that the provisions apply only where the Authorised Officer is satisfied that an offence under the Act has been committed in respect of or by means of the property seized. It was categorically held that the facts in the said case did not indicate an offence having been made out under the Control Rules or the Abkari Act.