Eashy V.J. @ Dasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 11TH DAY OF MARCH 2014/20TH PHALGUNA, 1935** **Crl.MC.No. 1211 of 2014 ()** **--------------------------AGAINST THE ORDER IN CRMP 243/2014 of SESSIONS COURT, ERNAKULAM DATED 03-02-2014** **-------** ## **PETITIONER/PETITIONER/ACCUSED :** **-----------------------------** **EASHY V.J. @ DASAN, AGED 49 YEARS, S/O. JOSEPH @ JOSEY, CC 14/217, VAMIKATTIL HOUSE, ST.ANTONY'S ROAD, MOTHER TERESA JUNCTION, CHULLICKAL DESOM, KOCHI-5.** **BY ADV. SRI.P.P.GENSON** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **---------------------------------** **STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, MATTANCHERRY POLICE STATION, MATTANCHERRY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI. SAREENA GEORGE P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 1211 of 2014 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **ANNEXURE A1 : CERTIFIED COPY OF THE ORDER DTD.3.2.2014 IN CRL.MP NO.243/2014 ON THE FILES OF THE SESSIONS COURT, ERNAKULAM. ANNEXURE A2 : COPY OF THE ORDER IN CRL.MP NO.2681/13 OF THE HON'BLE SESSIONS COURT, ERNAKULAM. ANNEXURE A3 : COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER'S AUTORICKSHAW BEARING REGISTRATION NO.KL-43/C 1277. ANNEXURE A4 : COPY OF THE CONTRACT CARRIAGE PERMIT OF THE PETITIONER'S AUTORICKSHAW BEARING REGISTRATION NO.KL-43/C 1277. RESPONDENT(S)' EXHIBITS : NIL. -----------------------** **//TRUE COPY//** **P.A. TO JUDGE** **BP** K.RAMAKRISHNAN, J. ----------------------Crl.M.C 1211 of 2014 -------------------------Dated this the 11[th] day of March, 2014 ## O R D E R This is an application filed by the accused in Crime No. 871/2013 of Mattanchery Police Station challenging the order in CMP 243/20104 on the files of the Sessions Court, Ernakulam under Section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was implicated as accused in Crime No.871/2014 of Mattanachery Police Station, alleging offences under Section 20 (b) (II) (B) of the Narcotic Drugs and Psychotropic Substance Act(hereinafter refered as NDPS Act). This vehicle was also seized and he filed CMP 243/2014 before the Sessions Court, Ernakulam for the interim custody of his Autorikshaw bearing Registration No.KL-43-C-1277 under Section 451 of the Code of Criminal Procedure. But that petition was dismissed by the court below by Annexure A1 order. That is being challenged by the petitioner before this Court. 3. Heard the counsel for the petitioner and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that the prosecution has no case that he is a habitual offender and he is the first offender and no proceedings under Section 60 of the NDPS Act has been initiated so far. It will take some time to dispose of the case as well. If the vehicle is kept open to sun and rain then it will Crl.M.C 1211 of 2014 2 be damaged and it will not be useful for the petitioner even if it is later released to him. So the court below was not justified in dismissing the application. He has relied on the decision reported in _**Sunderbhai Ambalal Desai v. State of Gujarat [2002 (1) SCC 283]**_ and also the decision reported in _**Tridip Mitra v State of West Bengal [2006 (2) CHN 198]**_ in support of his case. 5. On the other hand, the application was opposed by the learned Public Prosecutor on the ground that the vehicle is liable to be forfeited under Section 60 of the NDPS Act and in such circumstances the interim custody of the vehicle cannot be granted. Further, if the vehicle is given, he is likely to use the same for committing similar offences as well. 6. It is an admitted fact that the Circle Inspector of Mattanchery Police had arrested the petitioner and also seized the vehicle for alleged to be in possession of 2.755 of Ganja with the petitioner and that was being transported by using the Autorikshaw with No. KL-43-C-1277 which belonged to the petitioner. 7. It is also an admitted fact that the vehicle was produced before the court and now in the custody of the Police and it is kept in the Mattanchery Police Station. The learned Sessions Judge dismissed the application vide A1 order which reads as follows: _“Heard. In this petition filed u/s 451 of Cr.P.C. the petitioner who is the accused in crime No.871/2013 of_ Crl.M.C 1211 of 2014 3 _Mattancherry Police Station prays to release auto rickshaw bearing registration No.KL-43-C-1277 of which he is the R.C.Owner._ _In the report filed by Sub Inspector of Police, Mattanchery, it is stated that this auto rikshaw was used by the accused for sale of 2.755 Kg. of Ganja and steps have already been taken for forfeiture of that vehicle._ _In view of the allegation against the accused/petitioner and also considering the steps taken for forfeiture of the vehicle, I do not find any merits in the prayer of the petitioner. Hence petition stands dismissed.”_ 8. I have called for a report from the Sessions Judge as to whether any steps have been taken for forfeiture of the vehicle for which the learned Sessions Judge has sent a report which reads as follows: “ _With reference to the above, I may submit that the vehicle, bearing No. KL 43-C 1277 involved in Crime No.871/2013 of Mattanchery P.S. has not been produced in this court along with other items of properties. The vehicle was permitted to be kept in the safe custody of the S.H.O., Mattanchery as requested by the investigating officer in the crime. The accused later filed application U/s 451 Cr.P.C (Crl.M.P. 243/14) praying to release the vehicle to petitioner who is the R.C.owner. That application was dismissed by this Court as per order dated 03.02.2014 in the light of the report submitted by the S.H.O, Mattanchery stating that the vehicle was used by the accused for the sale of ganja and that steps have already been taken by him for forfeiture of_ Crl.M.C 1211 of 2014 4 _the vehicle._ _I may submit further that no step U/s 60 of the NDPS Act has so far been taken in the matter before this court.”_ 9. The learned Public Prosecutor also submitted that except this case, the petitioner has not involved any other case earlier. So he is a first offender. 10. It is true that under Section 60 of the NDPS Act, the court has got power to forfeit and confiscate the vehicle and proceedings can be initiated separately for that purpose as well. It has to be done by the same court, which tries the case as well. In this case, such steps have not been taken by the Sessions Judge so far. Further the decision reported in _**Sunderlal Ambalal's Case**_ (supra), the Honourable Supreme Court has held that in cases where vehicles have involved and the trial of the case will take time, then it is not proper to keep the vehicle for long time as that will not serve any purpose. In such circumstances, the application for the interim custody of the vehicle has to be disposed of and the vehicle can be released under Section 451 of Criminal Procedure Code. 11. In the same decision, it has been held even under NDPS Act cases also, the same procedure can be followed. In paragraph 7 of judgment, the procedure to be followed has also been mentioned, which reads as follows: _“ In our view, the powers under Section 451 CrPC should be_ Crl.M.C 1211 of 2014 5 _exercised expeditiously and judiciously. It would serve various purposes, namely:_ _i Owner of the article would not suffer because of its remaining unused or by its misappropriation;_ _ii. Court or the police would not be required to keep the article in safe custody.”_ 12. So considering the circumstances, I feel that no purpose will be served by keeping the vehicle exposed to sun and rain, which only ruin the vehicle and ultimately it will be no use when confiscation has been ordered by the court later. The same view has been reiterated in the decision reported in _**Tridip Mitra v State of West Bengal** (supra)_ by the Calcutta High Court as well. So, considering the circumstances, I feel that the interim custody of the vehicle can be given to the petitioner with some stringent conditions. So the order passed by the court below in CMP 243/2014 dismissing the application of interim custody of the vehicle is set aside and the same is allowed with the following conditions: i) The petitioner shall produce the documents showing his ownership in respect of the vehicle and satisfy the Sessions Court that he is the owner of the vehicle and he is entitled to get interim custody of the vehicle during the pendency of the proceedings. ii) If the Sessions Court is satisfied that, the petitioner is the owner of the vehicle, then the Sessions Judge is directed to grant Crl.M.C 1211 of 2014 6 Interim custody of the vehicle to the petitioner after getting the vehicle valued by the Regional Transport Officer, Mattanchery and on getting the valuation, directing the petitioner to execute a bond for the value assessed by the RTO Mattanchery for the vehicle with two solvent sureties for the like sum to the satisfaction of the Sessions Judge, Ernakulam. iii) The Sessions Judge is directed to get photographs of the vehicle taken by the Investigating Officer showing the identity of the vehicle to be used in evidence later at the time of trial and direct the Investigating Officer to prepare an inventory or mahazar in respect of the same showing it as is where is condition in the presence of the accused, his counsel and witnesses and produce the photographs with the inventory/mahazar so prepared, before the Sessions Court before the vehicle is released to the petitioner. iv) The petitioner shall not change the character of the vehicle or alienate or encumber of the vehicle till the disposal of the case. - v) The petitioner shall produce the vehicle before the court as and when required by the court till the disposal of the case. Crl.M.C 1211 of 2014 **==> picture [9 x 10] intentionally omitted <==** vi) The petitioner shall not use the vehicle for committing similar offence during the pendency of the case. vii) The petitioner shall file an undertaking in the form of an affidavit stating that he will abide by the conditions imposed by this court for getting the interim custody of the vehicle. With the above direction and observation, this petition is disposed of. Office is directed to communicate this order to the Sessions Court, immediately. K.RAMAKRISHNAN, JUDGE jm/