The Kerala Abkari Act and its associated rules provide for the temporary release of confiscated vehicles upon depositing an amount equivalent to the market value of the vehicle, with the legislative intent to safeguard the state's interests and ensure speedy recovery of amounts upon confiscation.

K.S. Radhakrishnan, J.

Petitioner is the registered owner of an autorickshaw. It was involved in Crime No. 21 of 1998. Vehicle was seized by the Excise Preventive Officer on 20.4.1998 after having found that the said vehicle was used for transport of illicit spirit. Driver and two other persons were arrested, and the vehicle was taken into custody. Crime was registered against the passenger and the driver for offences punishable under S.55(a) of the Act.

2. Petitioner submitted an application for release of the vehicle. Since no action has been taken, he filed O.P. No. 10178 of 1998 which was disposed of by this Court directing the excise authorities to take a decision on the petitioner's application. Accordingly, the excise authorities assessed the value of the vehicle through a Mechanical Engineer (Excise) and value was fixed at Rs. 34,500/-. Petition was directed to deposit the said amount for release of the vehicle. Petitioner is aggrieved by the said order, and has approached this Court.

3. Main contention raised by counsel for the petitioner is that the Excise Department ought to have released the vehicle, without insisting cash deposit. Counsel submitted that petitioner is willing to furnish security by way of immovable property. According to counsel insistence of cash deposit is illegal and irregular. Counsel submitted that the vehicle is under hypothecation. The income derived from the authorikshaw is his sole livelihood. Therefore, if the vehicle is not released, he will be put to considerable prejudice. He has got a further contention that the owner of the vehicle is in no way involved in the offence, and no charge has been laid against him under S.55 of the Kerala Abkari Act.

4. Learned Government Pleader opposed the request for release of the vehicle by accepting security by way of immovable property. Considering the fact that large number of cases are coming before the excise authorities, it will not be possible to release the vehicle accepting security by way of immovable property. It was pointed out that Department by past experience found that if vehicle is released on furnishing security by way of immovable property, it will be difficult to realise the amount, if the vehicle is ultimately confiscated. It is also his contention that even if the vehicle is repossessed, the same will be valued less, and the State's interest would be adversely affected. It is also stated that the recovery of the amount by proceeding against the property is cumbersome, and time-consuming and in very many cases it may not be possible to realise the amount. It is under the above mentioned circumstances that the rule making authority introduced R.4(2)(a) under the Kerala Abkari (Disposal of Confiscated articles) Rules, 1996, insisting cash deposit.

5. In order to examine the rival contentions, it is necessary to refer to some of the provisions of the Abkari Act. S.67B of the Abkari Act enables the authorised officer to seize a vehicle after having found the same used for abkari offences. On seizure of the vehicle and before finalisation of confiscation proceedings, the authorised officer has to issue a show cause notice under S.67C of the Act to the person concerned and also to give a reasonable opportunity of being heard to that person. Pending finalisation of the proceedings, the authorised officer could release the vehicle, if an application is made to that effect. There is no specific provision in the Act to make an application for release of the vehicle temporarily. Since the authorities have got power to confiscate the vehicles, they have also got power to release the vehicles temporarily, after imposing various conditions.

6. State Government in exercise of powers conferred under sub-s.(1) and clause (q) of sub-s.(2) of S.29 of the Abkari Act enacted the Kerala Abkari (Disposal of Confiscated articles ) Rules, 1996. A contention has been raised that the said Rules are only applicable after confiscation proceedings are ov