Adarsh.K.M v. State of Kerala and The Excise Inspector, Thrithala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945** **CRL.MC NO. 4360 OF 2023** **AGAINST THE ORDER/JUDGMENT CRMP 524/2023 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,PALAKKAD** ## **PETITIONER/APPLICANT/RC OWNER:** ADARSH.K.M, AGED 27 YEARS S/O. MOHANAN.K.B, KALARIKKAL HOUSE, PORKULAM.P.O, PAZHANJI, PORKULAM, THRISSUR, PIN - 680542 BY ADV K.M.MUHAMMED HUSSAIN ## **RESPONDENTS/STATE:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE EXCISE INSPECTOR, EXCISE RANGE, THRITHALA, PALAKKAD, PIN - 679521 BY ADVS. SRI.SEENA C, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.4360 of 2023 2 **P.V.KUNHIKRISHNAN, J. -----------------------------Crl.M.C.No.4360 of 2023 ---------------------------------------------Dated this the 07[th] day of September, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed challenging the order dated 20.02.2023 in Crl.M.P.No.524 of 2023 in Crime No.10/2022 of Thrithala Excise Range, passed by the First Additional Sessions judge, Palakkad. The above Crl.M.P was filed under Section 451 Cr.P.C. to release the vehicle bearing Registration No.KL-46-W-1154 which was seized in Crime No.10/2022 of Thrithala Excise Range. The above case was registered under Section 22(b) and Section 25 of the NDPS Act. 2. According to the petitioner, he is the registered owner of the Royal Enfield Motor cycle Crl.M.C.No.4360 of 2023 3 bearing Registration No.KL-46-W-1154. It is stated that the motor vehicle was seized and is now exposed to the sun and rain. It is submitted that the vehicle may be released after imposing any conditions. The learned Sessions judge dismissed the case mainly for the reason that the court has no jurisdiction to entertain a petition under Section 451 Cr.P.C. to release the vehicle involved in NDPS Act, relying on the judgment of Apex Court in **Shajahan v. Inspector of Excise** [2019 (4) KLT 507]. Aggrieved by that order, this Crl.M.C. is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. After considering the dictum laid down in **Sainaba v. State of Kerala** [2022 KHC 917], **Sainaba v. State of Kerala** [2022 (7) KHC 273] and in **Shajahan v. Inspector of Excise and others** [2019 (4) KLT 507], this Court in **Shanil v. State of** Crl.M.C.No.4360 of 2023 4 ## **Kerala** [2023 (2) KHC 88], made certain directions. It will be better to extract the relevant portion of **Shanil** 's case (supra): _“11. Although, in Shajahan (supra), this Court held the Magistrates to be denuded of the power to grant interim custody under S.451 Cr.P.C, that decision is impliedly reversed by the Supreme Court in Sainaba v. State of Kerala, 2022 (7) KHC 273. To summarise, in Sainaba v. State of Kerala and Another, 2022 KHC 917, a learned Single Judge of this Court held that the Special Court is not empowered to exercise jurisdiction under S.451 to release a vehicle involved in an offence under the NDPS Act on interim custody. That order was reversed by the Supreme Court in Sainaba v. State of Kerala, 2022 (7) KHC 273. Being contextually relevant, paragraphs 5 to 8 of the judgment is extracted hereunder; “5. It has been opined by the High Court that the Court is not empowered to exercise the jurisdiction under S.451 of the Code of Criminal Procedure to release a vehicle involved under NDPS Act in interim custody. 6. The appellant has urged inter alia that as per S.36 - C read with S.51 of the NDPS Act, Criminal Procedure Code would be applicable for proceedings by a Special Court under NDPS Act and S.451 has an in - built_ Crl.M.C.No.4360 of 2023 5 _provision to impose any specific condition on the appellant while releasing the vehicle. The appellant is undoubtedly the registered owner of the vehicle but had not participated in the offence as alleged by the prosecution nor had knowledge of the alleged transaction. 7. Learned counsel seeks to rely on the judgment of this Court in Sunderbhai Ambalal Desai v. State of Gujarat, 2003 (2) KLT 1089 (SC) : 2002 (10) SCC 283 opining that it is no use to keep such seized vehicles at police station for a long period and it is open to the Magistrate to pass appropriate orders immediately by taking a bond and a guarantee as well as security for return of the said vehicle, if required at any point of time. 8. On hearing learned counsel for parties and in the conspectus of the facts and circumstances of the case, and the legal provisions referred aforesaid, we are of the view that this is an appropriate case for release of the vehicle on terms and conditions to be determined by the Special Court.” A careful reading of the above paragraphs makes it clear that the appeal was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz., S.36C r/w 51 of the NDPS Act and S.451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Art.141 of the Constitution of India. I also take note of the judgment in Pradeep B. v. District Drug Disposal_ Crl.M.C.No.4360 of 2023 6 _Committee and Others 2022 KHC 1116 (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted._ _12. Having found the jurisdictional courts to be having the power to grant interim custody, the ancillary question is whether such power is to be exercised under S.451 or 457 of the Code. S.451 will be applicable when a property, which includes seized vehicles, is produced before a criminal court during inquiry or trial. As regards conveyances seized in connection with offences under the NDPS Act, S.52A only provides for preparation of inventory containing details of the conveyance relevant for its identification and the making of an application to the Magistrate for certifying the correctness of the inventory. The seized vehicles are not produced before the Magistrate, upon which alone an order for interim custody under S.451 can be issued. On the other hand, the power under S.457 can be exercised with respect to a property, which is not produced before the court, but the seizure of which is reported. The above discussion leads me to the conclusion that the jurisdictional courts have the power to grant interim custody under S.457 Cr.P.C, irrespective of the procedure for disposal stipulated in S.52A of the_ Crl.M.C.No.4360 of 2023 7 _Act._ _13. I refrain from delving into the question whether the seized vehicles could be termed as 'conveyance' used in carrying contraband, as it is for the jurisdictional court to decide that aspect depending on the facts of each case. As rightly pointed out by the learned Public Prosecutor, the complicity or otherwise of the owner, stipulated in S.60(3), is also an aspect which the jurisdictional court can consider._ _In the result, the Crl.M.Cs and writ petitions, except W.P.(Crl) No.1189 of 2022, are disposed of permitting the petitioners to submit applications under S.457 Cr.P.C, seeking interim custody of the vehicles. On such applications being filed, the Special Courts and jurisdictional Magistrate courts, as the case may be, shall consider the applications on merits and pass reasoned orders thereon, de hors dismissal of earlier applications. ”_ 5. In the light of the above dictum, I am of the considered opinion that the trial court has to reconsider the matter once again. I make it clear that, I have not considered the matter on merit and the lower court is free to pass appropriate orders in Crl.M.C.No.4360 of 2023 8 accordance with law in the light of the principle laid down by this Court in **Shanil** 's case (supra). Therefore, this Crl.M.C. is disposed of in the following manner: i. Annexure A5 order is set aside. ii. The First Additional Sessions judge, Palakkad is directed to reconsider Crl.M.P.No.524/2023 in the light of the principle laid down by this Court in **Shanil v. State of Kerala** [2023 (2) KHC 88]. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.4360 of 2023 9 ## **APPENDIX OF CRL.MC 4360/2023** ## PETITIONER ANNEXURES ANNEXURE A1 THE TRUE COPY OF THE R.C.BOOK OF THE VEHICLE BEARING REGISTRATION NO KL46-W-1154 ANNEXURE A2 THE TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN CRIME NO. 10/2022 OF THRITHALA EXCISE RANGE ANNEXURE A3 THE TRUE COPY OF THE ORDER OF THE DRUG DISPOSAL COMMITTEE PALAKKAD DATED 19.08.2022 ANNEXURE A4 THE TRUE COPY OF THE CRL. M.P. NO.524 OF 2023 ON THE FILES OF ADDITIONAL SESSIONS COURT -I PALAKKAD ANNEXURE A5 THE TRUE COPY OF THE ORDER IN CRL.M.P. NO.524 OF 2023 ON THE FILES OF ADDITIONAL SESSIONS COURT -I PALAKKAD OF DATED 20.02.2023 RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE