The court affirmed that statutory conditions for vehicle release under the Kerala Abkari Act must be strictly adhered to, particularly regarding cash security.

ORDER

Dated this the 19th day of November, 2021 The petition on hand is filed challenging an order passed by Judicial First Class Magistrate Court I, Sulthan Bathery (for short ‘the court below’) on 17.09.2021 in Crime No.87/2021 of Sulthan Bathery Excise Range.

2. By the impugned order, the court below has allowed an application filed by the petitioner under Section 457 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking for interim custody of a Toyota Fortuner Car bearing Registration No.KA-41MA-7679, which was seized and taken into custody by the Excise Inspector of Sulthan Bathery Excise Range in Crime No.87/2021. The offence alleged in the crime is one punishable under Section 58 of the Kerala Abkari Act (for short ‘the Act’). The petitioner is the RC owner of the vehicle.

3. By the order assailed, the vehicle was ordered to be released to the petitioner on following conditions: “(i) The petitioner shall furnish a cash security for Rs.16,20,000/- for production of the vehicle in court as and when required by it.

(ii) The petitioner shall produce the original documents of the vehicle for verification and also produce the attested copies of the same.

(iii) The vehicle shall be produced before the court or the authorized officer, as the case may be, when directed by either of them.

(iv) The petitioner shall not alienate, transfer or alter the features of the vehicle in question till the final determination of this case.

(v) The petitioner shall get the vehicle photographed from different angels and get the photographs signed by the petitioner’s counsel and the Investigating Officer concerned. The CD/negative shall also be produced in court.

(v) The petitioner shall not use the vehicle for commission of any offence.”

By the first condition, the petitioner was directed to furnish a cash security of Rs.16,20,000/- for production of the vehicle in court as and when required by it.

4. The contention of the petitioner was that the petitioner is ready to furnish a bank guarantee equivalent to Rs.16,20,000/- and therefore, condition No.1 requires to be modified in that manner. The learned counsel has pointed out that bank guarantee is equivalent to cash security and the purpose would well be served evenif a bank guarantee is accepted.

5. This Court notices from Section 53 B which was inserted into the Act by Act 3 of 2010, with effect from 07.12.2009 that the direction specifically issued was to release the vehicle temporarily on execution of sufficient bond by way of cash security equivalent to the market value of such vehicle or conveyance, to be fixed by the Mechanical Engineer of the Excise Department or any Mechanical Engineer of or above the rank of an Assistant Executive Engineer of the State Public Works Department, for production of such vehicle or conveyance on demand before the court or the authorised officer and such order shall not prevent the authorised officer from taking or continuing action under section 67B of the Act.

(Emphasis supplied)

6. Section 67 B of the Act, empowers the Abkari Officers to confiscate the vehicle. It reads :

“ 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 covering 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 delay, produce the same before an officer authorised 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 authorised officer).” (Emphasis supplied)

Section 67 B starts with a non obstante clause. Therefore irrespective of any other provisions contained in