High Court of KeralaSingle Judge2022-11-15Disposed of (W.P. (Crl.) No.952 of 2022)

George Kurian v. State of Kerala and Drug Disposal Committee

Case / Petition Number:W.P.(Crl.) No.952 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2022-11-15
Court Decision / Holding: The writ petition is disposed of with directions that the second respondent, Drugs Disposal Committee, shall consider the Ext.P3 representation filed by the petitioner within three weeks from today, after affording the petitioner a hearing. The Court holds that the vehicle cannot be released at this stage due to the NDPS seizure in Crime No.61/2022, which makes the matter subject to confiscation, but leaves the door open for a reasoned, timely decision on Ext.P3.
Final Disposition: Disposed of (W.P. (Crl.) No.952 of 2022)

Parties to the Case

Appellants / Petitioners

George Kurian

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam-682031
The Drug Disposal Committee, Kottayam represented by the District Police Chief, Kumily Road, Kottayam, Kottayam District, PIN - 686002

Legal Representation & Advocates

Counsels for Petitioners

• Adv P.A. Salim

Counsels for Respondents

• Sri Renjit George, Sr. Public Prosecutor

Case Synopsis & Summary

George Kurian v. State of Kerala and Drug Disposal Committee concerns a petition under Article 226 of the Constitution challenging the denial of release of a motor vehicle allegedly connected to NDPS offences. The petitioner sought a writ of mandamus and directions to the first respondent to release the vehicle in compliance with Ext.P7, and for expedited consideration of Ext.P3 before the second respondent, the Drug Disposal Committee, after affording him a hearing. The Court had earlier, in a related proceeding (Crl.M.C.No.2778/2022, 22.06.2022), directed the jurisdictional Magistrate to examine release of the vehicle under Section 451 Cr.P.C. and noted that the decision in Shajahan v. Inspector of Police (2019(4) KLT 507) had no application to the case on hand. Subsequently, it was argued that another crime (Crime No.61 of 2022) involved seizure of the same vehicle, and that Ext.P5 release order and Ext.P6 CMP were countermanded by the prosecution’s position and the NDPS seizure. The Public Prosecutor later conceded that the vehicle was seized in Crime No.61/2022 on 20.01.2022, and the seizure was claimed to be in NDPS proceedings, raising issues of confiscation. Ultimately, the Court held that because of the NDPS seizure, the vehicle cannot be released, but directed the Drug Disposal Committee to consider Ext.P3 within three weeks after giving an opportunity to be heard, disposing the petition accordingly. The petition is thus disposed of with these directions.

Provisions of Law Cited

Article 226 of the Constitution of IndiaSection 451 of the Code of Criminal Procedure (Cr.P.C.)Sections 341, 354, 323, 294(b) and 427 of the Indian Penal Code (IPC)Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)Section 52A of the NDPS Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P5 order releasing the vehicle under Section 451 Cr.P.C. was in force, and Ext.P6 CMP released the vehicle subject to conditions. He asserts that Crime No.60/2022 concerns the 451 release, while Crime No.61/2022 involves a seizure in NDPS proceedings; he argues that there was no seizure of the vehicle in Crime No.61 and that Ext.P5 should stand. He questions the necessity of investigating the seizure format (Annexure-A1) and seeks early disposal of Ext.P3 before the Drugs Disposal Committee with a hearing, and requests to dispense with translation to English for documents in Malayalam.

Contentions of Respondents

The Public Prosecutor contends that the vehicle was seized in Crime No.61 of 2022 on 20.01.2022 and is therefore subject to confiscation under the NDPS Act. He submits that Ext.P5 release order did not finally resolve the matter since the NDPS seizure triggers confiscation, and Annexure-A1 format confirms seizure. He argues that Ext.P3 should be considered after due process and hearing within a reasonable time, and that the petition should reflect the NDPS seizure's effect on release. He maintains that Shajahan v. Inspector of Police (Supra) has limited applicability and that the court should respect the seized status of the vehicle under NDPS, guiding the Drugs Disposal Committee’s decision.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shajahan v. Inspector of Police	2019(4) KLT 507	Partly Overruled / Limited	The Court initially stated that the decision in Shajahan had no application to the present case, but later referred to the ratio to deny release, indicating a partial or conditional application of the precedent.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA,** **1944** **WP(CRL.) NO. 952 OF 2022** ## **PETITIONER :** **GEORGE KURIAN, AGED 59 YEARS, S/O. KURIAN P.C., PUTHENPARAMBIL HOUSE, KARIMPANAKKULAM, KARIKKATTOOR P.O., MANIMALA VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, KERALA, INDIA, PIN -686544, REPRESENTED BY POWER OF ATTORNEY HOLDER GEORGE P. KURIAN, AGED 30, S/O.GEORGE KURIAN, PUTHENPARAMBIL HOUSE, KARIMPANAKKULAM, KARIKKATTOOR P.O., MANIMALA VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, KERALA, INDIA, PIN - 686544 BY ADV P.A.SALIM** ## **RESPONDENTS :** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 2 THE DRUG DISPOSAL COMMITTEE, KOTTAYAM, REPRESENTED BY THE DISTRICT POLICE CHIEF, KUMILY ROAD, KOTTAYAM, KOTTAYAM DISTRICT, PIN - 686002** **BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08.11.2022, THE COURT ON 15.11.2022 DELIVERED THE FOLLOWING:** W.P.(Crl.)No.952 of 2022 -:2:- ## **A.BADHARUDEEN, J.** **--------------------------------------------------------** **W.P.(Crl.)No.952 of 2022** **-------------------------------------------------------Dated this the 15[th] day of November, 2022** ## **J U D G M E N T** This writ petition has been filed under Article 226 of the Constitution of India and the prayers herein are as under: a) issue a writ of mandamus or any appropriate writ or direction directing the 1[st] respondent to release the vehicle to the petitioner in compliance of Exhibit.P-7 without any further delay. b) issue direction directing the 2[nd] respondent to consider Exhibit P-3 application pending before the 2[nd] respondent in accordance with law within a time frame to be stipulated by this Hon'ble Court, after affording an opportunity to the petitioner being heard. c) pleased to dispense with filing of English translation of the documents which are in vernacular Malayalam languages. d) issue any other orders as this Hon'ble Court deems fit and proper in the facts and circumstances W.P.(Crl.)No.952 of 2022 -:3:- of the case and also those are prayed during the pendency of the Writ Petition. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. It is submitted by the learned counsel for the petitioner that as per order in Crl.M.C.No.2778 of 2022 dated 22.06.2022, this Court considered an application filed by the petitioner under Section 451 of Code of Criminal Procedure in Crime No.60 of 2022 of Manimala Police Station alleging commission of offences punishable under Sections 341, 354, 323, 294(b) and 427 of the Indian penal Code. In the said crime, release of the car belonging to the petitioner bearing registration No.KL-34-F/5187 was sought for before the trial court and the trial court dismissed the said plea. 4. When this Court considered the dismissal of this petition in Crl.M.C.No.2778 of 2022, as per order dated 22.06.2022, this Court directed W.P.(Crl.)No.952 of 2022 -:4:- the jurisdictional Magistrate to consider the release of the vehicle, after finding that the decision reported in [2019(4) KLT 507], **Shajahan v. Inspector of Police** dealing with contrabands in NDPS cases had no application to the case on hand. 5. It was observed by this Court further that though another Crime No.61 of 2022 also was registered, the vehicle was not seized in the said crime. Accordingly, the learned Magistrate was directed to pass an order releasing the vehicle to the petitioner under Section 451 of Code of Criminal Procedure. The copy of the order is produced as Ext.P5. Thereafter, in obedience to Ext.P5 order, the learned Magistrate passed order in CMP No.496 of 2022 dated 15.04.2022 and ordered to release the vehicle on conditions, as per Ext.P6 order. After issuance of Ext.P6 order also, the Station House Officer hesitated to release the vehicle on the W.P.(Crl.)No.952 of 2022 -:5:- assertion that the vehicle also was seized in Crime No.61 of 2022, alleging commission of offence punishable under Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985. It is at this juncture, the petitioner has approached this Court. 6. According to the learned counsel for the petitioner, the prosecution never seized the vehicle in Crime No.61 of 2022 and that is the reason why as per Ext.P5 order, this Court ordered to release the vehicle, which led to Ext.P6 order. 7. Repelling this contention, the learned Public Prosecutor vehemently argued that the vehicle was seized in Crime No.61 of 2022 on 20.01.2022 itself but, the said fact was omitted to be submitted before this Court, while passing Ext.P5 order and he has placed copy of mahazar showing the recovery on 20.01.2022. W.P.(Crl.)No.952 of 2022 -:6:- 8. At this juncture, the learned counsel for the petitioner submitted that the seizure mahazar is not in conformity with Annexure-A1 appended to the notification dated 16.01.2015 issued by the Department of Revenue, Government of India under Section 52A of the NDPS Act and the same provides the format of seizure which is Annexure-A1 attached along with the notification. 9. Later, the learned Public Prosecutor produced the seizure recorded in Annexure-A1 format also. Therefore, it is discernible that the vehicle was seized in Crime No.61 of 2022 also on 20.01.2022. It is true that this Court considered release of the vehicle under Section 451 of Cr.P.C. in Crime No.60 of 2022 and not considered release of the vehicle in Crime No.61 of 2022, as per Ext.P5 order. 10. As things stands now, as per the seizure mahazar produced in the prescribed format in W.P.(Crl.)No.952 of 2022 -:7:- Crime No.61 of 2022, the vehicle was seized as on 20.01.2022 itself in NDPS crime and therefore, the same is subject matter of confiscation and as such, the vehicle cannot be released following the ratio in **Shajahan** 's case (Supra). 11. Therefore, the vehicle cannot be released and accordingly, it is ordered that the second respondent herein shall consider Ext.P3 representation filed by the petitioner before the second respondent, the Drugs Disposal Committee, within a period of three weeks from today, after giving ample opportunity of hearing to the petitioner. In the result, this writ petition is disposed of as indicated above. Sd/- **A. BADHARUDEEN JUDGE** rkj W.P.(Crl.)No.952 of 2022 -:8:- ## **APPENDIX OF WP(CRL.) 952/2022** **PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE COMPUTER PRINTOUT OF THE FIR IN CRIME NO. 60/2022 Exhibit P2 A TRUE COPY OF THE COMPUTER PRINT OUT OF FIR IN CRIME 61/2022 Exhibit P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 10-02-2022 Exhibit P4 THE TRUE COPY OF THE ORDER IN CMP NO.496/2022 Exhibit P5 A TRUE COPY OF THE ORDER OF THIS HONORABLE COURT DATED 22.6.2022 IN CRL.M.C.NO.2778/2022 Exhibit P6 A TRUE COPY OF THE ORDER IN C.M.P.NO.496/2022 DATED 15.7.2022 Exhibit P7 A TRUE PHOTOCOPY OF THE OFFICIAL MEMORANDUM DATED 19.7.2022**