REPORTABLE

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. Jabbar ..Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge 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.

3. Questioning correctness of the order passed, learned counsel for the  

appellant  submitted  that  without  availing  the  statutory  remedy  the  

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respondent should not have approached the High Court and in any event the  

High court should not have interfered.

4. Section 67-B of the Act reads as follows:

“67B. 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.)    

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(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, be destroyed.”

5. Section 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  

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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.   

6. However, 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.

7. We 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.  

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8. The appeal is disposed of accordingly.

…………………………………...J. (Dr. ARIJIT PASAYAT)

………………………….………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, May 01, 2009

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