Confiscation under the Abkari Act cannot stand if the accused is acquitted of the underlying offence.

JUDGMENT :

KAUSER EDAPPAGATH, J.

1. This writ petition has been filed challenging the confiscation order passed u/s 67B(2) of the Kerala Abkari Act.

2. The petitioner was the sole accused in SC No.415/2020 on the files of the Assistant Sessions Court, Kasaragod (for short, the trial court). He faced trial for the offence punishable under Section 55(a) of the Kerala Abkari Act.

3. The prosecution case, in short, was that on 11/10/2019 at 11.50 p.m., the petitioner was found transporting 12 bottles of Indian Made Foreign Liquor, each having a capacity of 750 ml, in his Innova car bearing Regn.No.KL-13 S 1772 in contravention of the Abkari Act.

4. After a full-fledged trial, the petitioner was acquitted as per Ext.P4 judgment.

5. The car that belongs to the petitioner involved in the crime was seized during the investigation. It was released on interim custody to him. Subsequently, the 4^th respondent initiated confiscation proceedings under Section 67B of the Abkari Act. As per Ext.P1 order, the car was ordered to be confiscated, which was confirmed in appeal as per Ext.P3 order of the 3^rd respondent. The petitioner challenged Exts.P1 and P3 before this court in WP(Crl) No.314/2022. It was disposed of as per Ext.P5 judgment directing the 2^nd respondent to reconsider the matter in the light of Ext.P4 judgment of acquittal. The 2^nd respondent thereafter passed Ext.P6 order confirming Ext.P3 order. This writ petition has been filed to quash Exts.P1, P3 and P6.

6. I have heard Sri.Arun Kumar A., the learned counsel for the petitioner and Sri.Sangeetha Raj N.R, the learned Public Prosecutor.

7. The learned counsel for the petitioner submitted that in a proceeding u/s 67B of the Abkari Act, it is obligatory on the part of the competent authority to satisfy that an offence under the Act has been committed in respect of or by means of the property sought to be confiscated before ordering confiscation and in this case, such a satisfaction has not been arrived at. The learned counsel further submitted that in view of the acquittal of the petitioner, the confiscation order is liable to be set aside. The learned Public Prosecutor, on the other hand, submitted that the power conferred on the authorised officer to order confiscation of property is irrespective of the launching of prosecution for the commission of the offence alleged. The learned Prosecutor further submitted that the authorised officer cannot be found fault with for having ordered the confiscation of the vehicle on the facts disclosed in the case.

8. Sections 65 and 67B of the Abkari Act deals with the confiscation of the property in respect of or by means of which an offence punishable under the Abkari Act has been committed. A reading of Sections 65 and 67B would show that it does not empower the authorised officer to confiscate the property in all cases where an offence is committed in respect of or by means of the property. Before ordering the confiscation of property, the authorised officer must be satisfied that an offence under the Act has been committed in respect of or by means of that property and that the said property is liable for confiscation. The word “may” used in Section 67B (2) would indicate that the power conferred on the authorised officer to order confiscation of property is discretionary since he is not obliged to order confiscation, even if he is satisfied that an offence has been committed under the Act in respect of or by means of that property. The authorised officer, by applying an objective test, must conclude that the property is liable for confiscation (See State of Kerala and Others v. Navaru Swapna Reddy, 2022 (1) KHC 563). There is nothing in Exts.P1, P3 and P6 orders to show that the aut