State of Kerala Vs.
C.A.Jabbar  INSC 872 (1 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (Crl. No. 4868 of 2007) State of Kerala ..Appellant Versus C.A.
Dr. ARIJIT PASAYAT,
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.
correctness of the order passed, learned counsel for the appellant submitted
that without availing the statutory remedy the respondent should not have
approached the High Court and in any event the High court should not have
67-B of the Act reads as follows:
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,
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 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.
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.
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.
appeal is disposed of accordingly.
(Dr. ARIJIT PASAYAT)