Arunkumar K. v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mary Joseph
Judgment Date: 2019-09-05
Court Decision / Holding: Condition No.2 imposed in Annexure 1 is upheld; the petition under Section 482 Cr.P.C is dismissed. The interim release of the auto-rickshaw remains subject to the bank guarantee equivalent to the vehicle’s value and to the Mechanical Engineer’s valuation within the specified period, with the vehicle to be produced as required during proceedings.
Final Disposition: Petition dismissed; interim release conditions maintained.

Parties to the Case

Appellants / Petitioners

Arunkumar K., S/o Kumar, the accused and registered owner of autorickshaw KL01-CK-7347

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Vishnu Bhuvanendran (Adv.)

Counsels for Respondents

• Public Prosecutor, Kerala (C.K. Prasad)

Case Synopsis & Summary

This is a Kerala High Court Criminal Miscellaneous case under Section 482 Cr.P.C., challenging Condition No.2 of Annexure 1 in an order that directed interim release of autorickshaw KL-01-CK-7347 in Crime No.6/2019 (NDPS Act, Section 22B) before the conclusion of trial. The petitioner, Arunkumar K., who owns the vehicle and is an accused in the crime, seeks to lift the condition requiring the petitioner to furnish a bank guarantee equal to the vehicle’s value and to have its value assessed by the Mechanical Engineer of PWD within ten days. The challenge hinges on the contention that NDPS cases should not be governed by such stringent interim-release conditions, and that a bank-guarantee requirement is inappropriate or impracticable. The Public Prosecutor counters that NDPS offenses justify strict conditions and that Section 451 Cr.P.C. cannot govern such releases; the court below relied on Hassainar Azeez B v. State of Kerala (2017) to justify the condition, applying a dictum that vehicle releases in similar contexts may require bonds, sureties, and bank guarantees, with value assessment. The High Court observes that the words “shall” in the directions are mandatory and, in view of Hassainar’s dictum, finds Condition No.2 appropriate. Consequently, the petition is dismissed and the interim-release condition remains in force.

Provisions of Law Cited

Section 482 Cr.P.CSection 451 Cr.P.CNarcotic Drugs and Psychotropic Substances Act, 1985 – Section 22B

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Condition No.2 is not mandatory for NDPS cases and that directing the petitioner to furnish a bank guarantee equivalent to vehicle value—plus a mandatory valuation by the PWD—unduly burdens the accused and is impracticable. He relies on principles from forest-offence cases and argues for a more restrained interim-release regime where NDPS cases are concerned, suggesting that Section 451 Cr.P.C. should not govern such releases.

Contentions of Respondents

The State contends that NDPS offenses justify stringent interim-release conditions. It argues that the court below rightly imposed a bank guarantee and vehicle-valuation requirement to safeguard potential confiscation, and that the “shall” directions in the Hassainar decision are mandatory. It submits that the law is settled on imposing strict conditions in NDPS interim releases and that lifting Condition No.2 would undermine the process and seizure proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Hassainar Azeez B v. State of Kerala	2017 (2) KHC 987	Positive	The court relied on the Hassainar dictum to justify mandatory conditions (bond/sureties, bank guarantee) and vehicle valuation in interim custody under NDPS context.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** **Crl.MC.No.5675 OF 2019(H)** **AGAINST THE ORDER/JUDGMENT IN CRMP 1426/2019 DATED 23-07-2019 OF ADDITIONAL SESSIONS COURT - IV, THIRUVANANTHAPURAM** **CRIME NO.6/2019 OF Kazhakuttom Excise Range Office , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **ARUNKUMAR K. AGED 24 YEARS S/O.KUMAR, T.C.73/2281, SARASWATHI BHAVAN, VIDHYADHIRAJA LANE, MANACADU, THIRUVANANTHAPURAM(SREE RUDRA, SREEVARAHAM, MANACAUD VILLAGE, THIRUVANANTHAPURAM)** **BY ADV. SRI.VISHNU BHUVANENDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **PP C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.5675 OF 2019(H)** **2** ## O R D E R Dated this the 5[th] day of September 2019 This petition is filed under Section 482 Cr.P.C seeking to lift condition No.2 imposed while ordering interim release of an autorickshaw bearing No.KL.01-CK-7347, involved in a case registered for an offence punishable under Section 22B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS Act'). The petitioner is not only the registered owner of the vehicle but also an accused in Crime No.6/2019 of Kazhakuttom Excise Range. 2. Crl.M.P. No.1426/2019 was filed before the Court of Additional Sessions Judge-VI in charge of Additional Sessions Judge-IV, Thiruvananthapuram (for short 'the court below') seeking for interim release of the vehicle under Section 451 Cr.P.C. The application was considered by the court below and an order directing release of the vehicle in interim custody of the petitioner was passed subject to some conditions, copy of which **Crl.MC.No.5675 OF 2019(H)** **3** order is produced with the petition on hand as Annexure 1. Condition No.2 thereunder is under challenge in this petition, which reads as follows : “ii. The petitioner shall produce bank guarantee equivalent to the value of the Auto Rickshaw for securing production of the Auto Rickshaw for confiscation if any. The Mechanical Engineer of PWD is directed to assess the value of the vehicle at any rate within ten days.” 3. It is contended by Sri.Vishnu Bhuvanendran, the learned counsel for the petitioner that condition No.2 in the order under challenge is not a mandatory one as far as the cases involving NDPS Act are concerned. According to him, the Apex Court has passed an order directing to furnish bank guarantee equivalent to the value of the vehicle while ordering release of a vehicle involved in a Forest offence. It is submitted by the learned counsel that in view of condition No.2 imposed by the court below in the impugned order, the petitioner is prevented from enjoying the benefit of the said order. According to him, it is impractiable for him to furnish the bank guarantee as directed **Crl.MC.No.5675 OF 2019(H)** **4** by Annexure 1 order and therefore the condition directing the same needs to be set aside. 4. According to the learned Public Prosecutor, since an offence under the NDPS Act is involved in the crime, the court below ought not to have passed an order of the nature under Section 451 Cr.P.C. According to him, when the release of the vehicle involved in a crime registered for an offence under the NDPS Act, the invocation of Section 451 Cr.P.C itself is forbidden, and therefore an application seeking to lift condition No.2 from the order under challenge itself is unsustainable. The learned Public Prosecutor has also submitted that law is settled in the matter and requires imposition of stringent conditions when an order granting interim release of the vehicle is passed. 5. It is pertinent to note that the order directing release of the vehicle in interim custody was not challenged by the prosecution. Rather it raised a challenge against the legality of the order in the proceedings on hand only during the course of **Crl.MC.No.5675 OF 2019(H)** **5** argument. In the absence of a proper challenge, the issue now raised requires no consideration. 6. Condition No.2 imposed by the Court in Annexure 1 order is sought to be set aside by the petitioner. It is pertinent to note from the impugned order that the court below has relied on **Hassainar Azeez B v. State of Kerala** [2017 (2) KHC 987] while passing the order directing interim custody of the vehicle to the petitioner. 7. It is disclosed that the petitioner is not only the registered owner of the vehicle but also accused in the crime. Therefore the dictum in **Hassainar** 's case (supra) is applicable to the case on hand also. The dictum laid down by this Court in **Hassainar** 's case (supra) reads : “18. Admittedly, the petitioner in Crl.M.C.No.2142 of 2017 is not the accused in the case. However, the petitioner in Crl.M.C.No.2138 of 2017 is the accused. For the reasons stated above, both the petitioners are entitled to get the respective vehicle released from the Court concerned on condition of each of the petitioners executing a bond for a sum equivalent to the **Crl.MC.No.5675 OF 2019(H)** **6** value of the vehicle concerned, with two solvent sureties each, each for the like sum to the satisfaction of the Court concerned and on undertaking that the vehicle concerned shall be produced before the Court during the course of enquiry, trial or confiscation proceedings as and when required by the Court. The petitioners shall not sell or otherwise transfer the vehicle concerned in favour of any 3[rd] party without the prior permission of the Court. The petitioners shall not make any change to be made in the vehicle cornered so as to make it unidentifiable. The Court shall also get an undertaking from the petitioners that the vehicles will not be used for any similar offence. The appropriate photographs of the said vehicles should be taken before releasing the vehicle. In addition to the above conditions, the petitioner in Crl.M.C.No.2138 of 2017, being the accused in the case concerned, shall furnish bank guarantee equivalent to the value of the vehicle. The Court concerned shall ensure that the value of the above said vehicles will be assessed by the Mechanical Engineer of PWD within five days from the date of production of a copy of this order before the Court by the petitioner concerned, if not already assessed.” 8. It is revealed from the extract above that the court has directed assessment of value of the vehicle by the Mechanical Engineer of PWD within five days from the date of production of a copy of this order before the Court by the petitioner concerned, if not already assessed. The court has also directed **Crl.MC.No.5675 OF 2019(H)** **7** the petitioner being also an accused to furnish bank guarantee equivalent to the value of the vehicle. The words in usage in the directions issued being 'shall', undoubtedly it is mandatory in nature. In the above circumstances, condition No.2 imposed by the court below vide Annexure 1 order is found appropriate by this Court in the context on hand and therefore is declined to interfere with. Crl.M.C. Fails and therefore it is dismissed. ## **Sd/-** **MARY JOSEPH** **JUDGE** ttb **Crl.MC.No.5675 OF 2019(H)** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1** **CERTIFIED COPY OF THE ORDER DATED 23.07.2019 IN CRL.M.P.1426/2019 PASSED BY ADDL.SESSIONS JUDGE-VI, THIRUVANANTHAPURAM** /TRUE COPY/ P.S. TO JUDGE