The first petitioner is the son of the second and third petitioners. 11 liters of foreign made foreign liquor were seized on 10.9.2006 from the house of the petitioners. Crime No.181 of 2006 was registered by the Sub Inspector of Police, Thiruvallam for an offence under section 55 (a) of the Abkari Act against the first petitioner. The first petitioner filed Crl.M.C.No.418 of 2007 for quashing the proceedings initiated pursuant to Crime No.181 of 2006 registered as stated above. The second and third petitioners along with another son who is working in the Gulf Countries filed W.P.(C) No.30487 of 2006 for release of the liquor and for a direction to the Sub Inspector of Police to take back the liquor from the concerned Magistrate's Court and for a further direction to the first respondent to release the liquor by passing an order under section 67B of the Act. Both the cases were finally disposed of by this Court as per Ext.P4 judgment. Crl.M.C.No.418 of 2007 was allowed and the proceedings in Crime No.181 of 2006 of Thiruvallam Police Station registered against the first petitioner was quashed. With respect to the liquor that was seized, the Sub Inspector of Police was directed to get back the seized liquor from the Magistrate's Court and to produce the same before the first respondent who was in turn directed to dispose of the matter on the merits within one month of production of the seized liquor. Accordingly, Ext.P7 order has been passed, confiscating the liquor that was seized. Aggrieved by the order, the petitioners challenged the same in Ext.P8 appeal before the second respondent. By Ext.P9, the appeal has also been dismissed. The petitioners have filed this writ petition challenging Exts.P7 and P9. 2. According to the learned Senior counsel, Sri.C.C.Thomas, who appears for the petitioners, this Court has in Ext.P4 quashed the entire proceedings initiated against the petitioners, finding that, no offence under the Abkari Act has been committed by them. It was only with respect to the question as to how the seized liquor had to be disposed, that, the first respondent was directed to take a decision, either under section 53A or section 67B of the Abkari Act. However, according to the counsel, the impugned order has been passed entirely relying on an opinion expressed by the Advocate General in the matter. Inasmuch as no offence under the Abkari Act has been committed by the petitioners, the quantity of liquor seized is not liable to be confiscated. The petitioners are entitled to release of the said liquor, in view of the circulars Exts.P2 and P3 that fully govern the situation.
3. A counter affidavit has been filed on behalf of the first respondent. According to the first respondent, though a notice had been issued to the petitioners to appear and put forward their case in the proceedings initiated under section 67B of the Act, they had not chosen to enter appearance or produce any evidence to show that the quantity of liquor that was seized from their possession had been legitimately imported into the country. The liquor being foreign made foreign liquor, it is contended that it was incumbent on the petitioners to have explained how they had come into the possession of the said quantity of liquor. In the absence of any evidence to conclude that their possession was legal and permissible, it is contended that the impugned orders are absolutely justified and supported by law.
4. Heard. The facts in this case are not in dispute. The first petitioner is the son of petitioners 2 and 3. The liquor was seized from their residential house. Since the quantity was 11 litres, as already noticed above, a crime had been registered. However, this Court has quashed the entire criminal proceedings initiated against the petitioners, by allowing a petition filed under section 482 of the Code of Criminal Procedure. In paragraph 8 of Ext.P4 judgment, this Court has clearly held as follows:
“8. Crl.M.C.No.418/2007 is filed by the accused in the crime, raising almost the same contentions, I find that there is no material to hold that he was possessing liquor against the provisions of the Abkari Act. It is an admitted case that the house belongs to the petitioners in the writ petition, wherein the accused and other members are residing. Therefore, I find that both the petitions will have to be allowed in the following terms.
In the result, writ petition is allowed. The first respondent shall take steps to get 11 bottles of foreign made foreign liquor, involved in Crime No.181/2006 of Thiruvallam Police Station be taken from the concerned Magistrate Court and produce it before the Deputy Excise Commissioner, Thiruvananthapuram, within a period of one month for taking steps for disposal of the property under Section 53 A or 67B, as the case may be of the Abkari Act. The Deputy Excise Commissioner, Thiruvananthapuram shall dispose of the matter on merit within one month of production of the seized liquor before him.”
5. It is clear from the above finding that has become final and binding inter parties that, there is absolutely no material or evidence to conclude that any offence under the Abkari Act had been committed by the petitioners. Section 65 of the Abkari Act, provides that, wherever an offence has been committed under the Act, liquor, drug materials etc. shall be liable to confiscation. In the above case, in view of the finding in Ext.P4, it cannot be said that any offence under the Abkari Act was committed. Section 67 B that confers the power of confiscation 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 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 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 authorised officer)
2. Where an authorised officer seizes and detains any property specified in sub section (1) or where any such property is produced before an authorised 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 authorised 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 authorised officer may also order confiscation of all contents thereof.
(3) When making an order of confiscation under sub- section (2), the authorised 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.”
6. It is clear from the above provision that, in the absence of evidence to show that an offence has been committed under the Abkari Act, as in the present case, the quantity of liquor seized is not liable to be confiscated. Of course, if the quantity found in possession was in excess of the quantity permitted to be possessed under the Act, the excess liquor could be seized. However Ext.P2 circular permits an individual to possess 4.5 liters of foreign made foreign liquor. The said circular has been further clarified by Ext.P3 circular dated 31.8.1998. Ext.P3 circular has issued instructions to the Officers involved in searching houses, which read as follows:
“1. Section 31 of Abkari Act states as follows:- “Power to certain abkari and police officers to search houses etc. without warrant:- Whenever the Commissioner of Excise or any Abkari Officer has reason to believe that an offence under this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief, enter and search any place ”
Therefore searching of dwelling houses for excess foreign liquor has to be made only on receipt of reliable information regarding sale of foreign liquor and commission of an offence. Foreign Liquor stored for sale and kept for own consumption (and not for sale), has to be viewed differently especially because of the large number of NRIs residing in Kerala, who may have brought foreign made foreign liquor for own consumption.
2. Rule 1.A, of the Foreign Liquor Rules makes no distinction between Indian Made Foreign Liquor and Foreign Made Foreign Liquor. The searching officers some time take cases on the impression that a person can possess one litre of Foreign Made Foreign Liquor only. This is not correct. In view of SRO. No.225/98 dated 5.3.1998 a person can possess 4.5 litres of Foreign Liquor including Foreign Made Foreign Liquor. Case to be charged only in cases where the quantity exceeds 4.5 litres in total that too only if it is found to be kept for sale.
3. While conducting search, if it is found that there are adult persons other than the house owner and they set up claim that a portion of the liquor belongs to them, credit be given to such claim and Mahazar prepared noting this claim also.
The guiding principle is whether an offence is committed or not and not mere possession.”
7. The above instructions clearly provide that seizure of liquor is permissible only in cases were the above guidelines are satisfied. In the present case, the said guidelines are not satisfied at all.
8. Coming to the contention of the learned Government Pleader that, the petitioners had not produced any evidence to show that the foreign made foreign liquor had been legally brought into India, it will be worth noticing that they had submitted Ext.P5 explanation to the first respondent on 31.3.2014 claiming that, each of them were entitled to possess a quantity of 4.5 liters of foreign made foreign liquor. The above contention has not been considered in Ext.P7. In Ext.P8 appeal also, the above contentions have been reiterated. The said contention has not been considered in Ext.P9 also. Exts.P7 and P9 have been passed without taking into consideration the relevant materials that were available before respondents 1 and 2. Therefore, Exts.P7 and P9 are unsustainable.
In view of the above, this writ petition is allowed. Exts.P7 and P9 are set aside. The first respondent is directed to release the quantity of liquor seized from the petitioners, as expeditiously as possible and at any rate within a period of two weeks of the date of receipt of a copy of this judgment.
Sd/-
K.SURENDRA MOHAN, JUDGE.
rkc.