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2022 Supreme(Ker) 596
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MARY JOSEPH, J.
Jyothismon P.S., S/o. Sudhodaran - Petitioner
Versus
State of Kerala, Represented by the Secretary to Government, Taxes (Excise) Department, Government Secretariat & Ors. - Respondents
WP(Crl.) No. 393 of 2021
Decided On : 14-06-2022
For the Petitioner: Naveen T., Chithra Chandrasekharan.
For the Respondent: PP Sri V.S. Sreejith.
Headnote:
Constitution of India,1950 - Article 226 - Kerala Abkari Act - Sections 58B, 67B and Sub-section (10) of Section 3 - Kerala Spirituous Preparations (Control) Rules, 1969 - Rule 3(l) - Transportation of 54 liters of illicit ‘Arishtas’ - Seizure mahazar - True copy of the certificate of registration of the vehicle - True copy of the certificate of registration of the vehicle is produced alongwith petition on hand as Ext.P1. He is hailing from a traditional Ayurveda Physician’s family and family has been engaged in providing Ayurveda treatment for the past more than 70 years. Petitioner’s wife is also an Ayurveda Doctor seizing alleged ‘Arishta’ and car owned by the petitioner, true copy of which is produced alongwith the petition on hand was registered by Excise Range Office, Changanacherry alleging commission of offences punishable under Sections 58B and 67B of the Kerala Abkari Act,1077 - Alleged was transported in the vehicle solely for the purpose of giving it to the patients in his clinic. The vehicle used for transportation of now in the custody of 5th respondent and seeking its release - Allegedly the petitioner has transported Arishtas in the vehicle owned by him - Held, Allegations 4th respondent intercepted and seized the Omni Van belonging to the petitioner for transporting was registered by 4th the respondent against the son of the petitioner for offences under Rules 9 and 10 of Kerala Spirituous Preparations (Control) Rules, 1969 and also under Section 56(b) and 67B(a) of the Abkari Act. In the meantime, the seized vehicle was produced before the authorised officer, who after completing the legal formalities confiscated it under Section 67B of the Act - Accused earned a conviction through a judgment by pleading guilty - Trial judge imposed Section 56(b) of Act - Seized property was entrusted to the authority for disposal as per the Rules - Confiscation of the motorcycle, petitioner filed appeal but it was dismissed order was passed dismissing it. Impugning the order passed in revision filed by petitioner the above dictum was laid by the learned Single Judge - Settled position discussed above, the contraband seized being not a drug notified under the Act, the offence under Section 58B is unlikely to be attracted and, the vehicle is not liable to be confiscated - certificate of chemical analysis made available by the learned Public Prosecutor percentage of Ethyl Alcohol in the sample of the contraband forwarded to the chemical examiner’s laboratory is 9.95% in average - Note extracted and shall be deemed as spurious preparation only when the alcohol content in any such preparation exceeds 12% by volume unless otherwise declared by Expert Committee - Writ Petition allowed.
JUDGMENT :
This Writ Petition is filed under Article 226 of the Constitution of India seeking for the following reliefs :
“i. Issue a writ of mandamus or any other appropriate writ, direction or order directing the 4th respondent to release the car, bearing registration No.KL-33-M/3092 to the petitioner forthwith.
ii. Issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to get the car bearing registration No.KL-33-M/3092 released forthwith.
iii. Grant such other and further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.”
2. The averments of the writ petitioner are as follows:
He is the registered owner of a Hyundai Santro Car bearing registration No.KL-33-M/3092. True copy of the certificate of registration of the vehicle is produced alongwith the petition on hand as Ext.P1. He is hailing from a traditional Ayurveda Physician’s family and the family has been engaged in providing Ayurveda treatment for the past more than 70 years. Petitioner’s wife is also an Ayurveda Doctor. Medicines like ‘Arishtas’ and ‘Asavas’ of Kottakkal Arya Vydyasala and Thykkattu Moose are being used for treatment purposes in the clinic run by the petitioner and his family. A car owned by the petitioner was seized by the 5th respondent on 23.05.2020 alleging that it was used for transportation of 54 liters of illicit ‘Arishtas’. A seizure mahazar was prepared on 23.05.2020 by the Preventive Officer, Excise Range Office, Changanacherry while seizing the alleged ‘Arishta’ and the car owned by the petitioner, true copy of which is produced alongwith the petition on hand as Ext.P2. CR. No.57/2020 was registered by Excise Range Office, Changanacherry alleging commission of offences punishable under Sections 58B and 67B of the Kerala Abkari Act,1077 (for short ‘the Act’) by the writ petitioner, true copy of which is produced alongwith the petition on hand as Ext.P3.
3. One Mr. Sureshkumar, who allegedly brought the Arishta in the car was implicated as the sole accused in the crime. According to the petitioner the alleged Arishta was transported in the vehicle solely for the purpose of giving it to the patients in his clinic. The vehicle used for transportation of Arishta, is now in the custody of the 5th respondent and seeking its release, the Writ Petition is filed.
4. According to the learned counsel, allegedly the petitioner has transported Arishtas in the vehicle owned by him. According to him, as per the judgment of Single Bench of this Court reported in Priaymvada P.G. v. State of Kerala and Others [2015 (5) KHC 63], Ayurvedic medicines transported by the petitioner are, perhaps intoxicating drugs, but remain out of purview of the Act, as they have not been notified. Accordingly, as a natural corollary it was held that Ayurvedic medicines cannot be treated as liquor as has been defined in Sub-section (10) of Section 3 of the Act, or falling within the mischief of Section 56(b) or Section 67B(a) of the Act.
5. It is contended by the learned counsel on the basis of the certificate of chemical analysis in the case on hand that the average content of Ethyl Alcohol in the sample analysed is 9.95% and therefore, the contraband seized will not come within the purview of the ‘Note’ appended to the definition of ‘spurious preparations’ under Rule 3(l) of the Kerala Spirituous Preparations (Control) Rules, 1969 (for short ‘Rules, 1969’).
6. The learned counsel has also pointed out that the offence under Section 58B of the Act for which the petitioner stands chargesheeted, would be attracted only when the petitioner is engaged in manufacture of any preparations which in the opinion of the Commissioner can be used as a substitute for alcohol. Sub-Clause (2) of the said provision says that nothing contained in this Section shall apply in the case of any medicinal preparation which is generally used for or in the treatment, mitigation or prevention of disease in human being
