High Court of KeralaDivision Bench2022-12-14Writ appeal allowed; impugned order set aside; ...

J Ramanathan v. State of Kerala and Others

Case / Petition Number:WA No. 1799 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Manikumar
Shaji P. Chaly
Judgment Date: 2022-12-14
Court Decision / Holding: The writ appeal is allowed. The impugned judgment dated 03.06.2022 in W.P.(Crl.) No.381 of 2022 is set aside in light of Sainaba v. State of Kerala (2022) and the decision in Sunderbhai Ambalal Desai. The appellant is liberty to approach the Special Court for release of the vehicle, with terms and conditions to be determined by that court. The appellant’s vehicle, Mahindra Xylo (2017 model, TN-37-CS-3142), is to be released to the petitioner in accordance with the terms as determined by the Special Court. The writ appeal is allowed with costs to the respondents.”,
Final Disposition: Writ appeal allowed; impugned order set aside; liberty to applicant to approach Special Court for release of vehicle; release to be on terms determined by Special Court; costs to be borne by the parties.

Parties to the Case

Appellants / Petitioners

J. Ramanathan

Respondents

State of Kerala represented by the Secretary to Government, Home Department, Thiruvananthapuram
Commissioner of Excise, Excise Commissionerate Thrissur
NDPS Drugs & Conveyances Disposal Committee Thrissur (represented by its Chairman, Deputy Commissioner of Excise)
Excise Inspector, Chalakudy Excise Range

Legal Representation & Advocates

Counsels for Petitioners

• Adv. M. Jayakrishnan

Counsels for Respondents

• Sri. K.P. Harish, Senior Government Pleader

Case Synopsis & Summary

The petitioner, J. Ramanathan, owner of a Mahindra Xylo (2017 model, TN-37-CS-3142), whose tourist cab was seized in Crime No. 7/2022 of Chalakudy Excise Range on allegations of ganja transport, seeks release of the vehicle under NDPS Act and interim custody with security. The writ petition before the Kerala High Court challenged two actions: Ext. P4 (the third respondent’s disposal/holding letter) and Ext. P5 (the department’s circular under Section 52A of the NDPS Act) and sought mandamus to dispose of the vehicle in his favor. The single judge dismissed the petition, following the Division Bench ruling in Shajahan v. Inspector of Excise (2019) that the court cannot erode Section 451 CrPC jurisdiction for interim release, and relying on the proposition that the vehicle could be retained/brought within the NDPS regime. During the WA, counsel for the respondents cited a Supreme Court decision in Sainaba v. State of Kerala (2022) to contend that the registered owner may approach a Special Court under CrPC Section 451 for release. The court, however, relied on Sainaba to set aside the impugned judgment and to allow release of the vehicle on terms to be determined by the Special Court, noting Sunderbhai Ambalal Desai’s rationale on prompt custody with conditions. The appeal culminates in an order allowing release to the owner following the Special Court’s terms, with costs to be borne by the parties.

Provisions of Law Cited

Section 52A of Narcotic Drugs and Psychotropic Substances Act, 1985Section 451 of the Code of Criminal ProcedureSection 36C read with Section 51 of the NDPS Act (cited in Sainaba)

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicant contends that the NDPS Act provisions (specifically Section 52A) and allied principles permit release of the seized vehicle when the owner is not involved in the offence; the vehicle should not be kept in interim custody indefinitely and the owner should be afforded an opportunity to secure release via a Special Court under CrPC Section 451. The petitioner asserts constitutional and substantive rights to property and urges the court to exercise jurisdiction to release in light of post- Shajahan decisions and evolving jurisprudence.

Contentions of Respondents

Respondents submit that the earlier single-judge reliance on Shajahan v. Inspector of Excise foreclosed automatic interim release under 451 CrPC; they rely on NDPS provisions and the need to maintain seizure and disposal discipline. They also place emphasis on the statutory remedies and the necessity of keeping the vehicle under NDPS dispositions, subject to hearing and conditions, as permitted by contemporary jurisprudence and the NDPS framework; in light of Sainaba, they acknowledge the Special Court route but argue that the original order and circular are within the proper interpretation of NDPS and CrPC.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shajahan v. Inspector of Excise and Others	2019 (4) KLT 507	Overruled	The High Court relied on Shajahan to hold that a court cannot erode Section 451 CrPC jurisdiction for interim release; however, the Supreme Court in Sainaba v. State of Kerala (2022) overruled this position and allowed release through the Special Court, leading to setting aside the Shajahan-based reasoning.
Sainaba v. State of Kerala	2022 (7) KHC 273	Positive	Supreme Court decision cited as the basis for permitting release of the vehicle to the owner and permitting approach to the Special Court under CrPC 451, leading to the impugned judgment being set aside.
Sunderbhai Ambalal Desai v. State of Gujarat	Sunderbhai Ambalal Desai v. State of Gujarat	Positive	Cited in support of expedient release and prompt action with appropriate conditions/guarantee; used to argue for immediate handling of seizure rather than prolonged retention.

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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 THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022/23RD AGRAHAYANA, 1944** **WA NO. 1799 OF 2022** **AGAINST THE JUDGMENT DATED 03.06.2022 IN W.P.(CRL.)NO.** **381/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **J. RAMANATHAN AGED 24 YEARS S/O M. JAGANATHAN, HOUSE NO.16, VISWANATHA LAYOUT, LAKSHMIPURAM, PEELAMEDU, COIMBATORE, PIN – 641 004, NOW RESIDING AT MALAYAM PALAYAM, PANJAIKALAMBADI, ERODE, PIN – 638 154** **BY ADV M.JAYAKRISHNAN** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANTHAPURAM, PIN – 695001** **2 COMMISSIONER OF EXCISE EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O., NANDAVANAM, THIRUVANANTHAPURAM, PIN – 695033** - **3 NDPS DRUGS & CONVEYANCES DISPOSAL COMMITTEE THRISSUR** W.A. No. 1799/2022 2 **REPRESENTED BY ITS CHAIRMAN, DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680601** **4 EXCISE INSPECTOR** **CHALAKUDY EXCISE RANGE, CHALAKUDY, THRISSUR DISTRICT, PIN – 680307** **BY SRI. K.P. HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 1799/2022 3 ## **JUDGMENT** ## S. Manikumar, C.J. Before the writ court, the petitioner has sought for the following reliefs:- _i) To issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibit-P4 order issued by the 3[rd] respondent;_ _ii) To issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibit-P5 Circular issued by the 2[nd] respondent;_ _iii) To issue a writ of mandamus or any other appropriate writ order or direction to the 3[rd] respondent to finally dispose of the vehicle Mahindra Xylo 2017 model Car bearing registration No TN-37-CS-3142 by releasing the same to the petitioner._ _iv) To issue a writ of mandamus or any other appropriate writ order or direction commanding the 2[nd] respondent to grant the interim custody of Mahindra Xylo 2017 model Car bearing registration No. TN-37-CS-3142 to the petitioner on his producing any other security which this Hon'ble Court may deem fit to direct._ _v) To issue a writ of mandamus or any other appropriate writ order or direction to the 4[th] respondent to forthwith produce the Mahindra_ W.A. No. 1799/2022 4 _Xylo 2017 model Car bearing registration No. TN-37-CS-3142 before the 3[rd] respondent; vi) Any other reliefs which this Hon'ble Court may deem fit and proper considering the facts and circumstances of the case In the interest of justice._ 2. Short facts leading to the filing of this writ appeal are as under:- 2.1 Appellant herein is the petitioner in W.P. (Crl.) No.381 of 2022 on the files of this Honourable Court and the respondents herein are the respondents in the said writ petition. The appellant being aggrieved by Ext. P5 circular issued by the 2[nd] respondent under section 52(A) of Narcotic Drugs and Psychotropic Substances Act, 1985 and Ext.P4 letter issued by the 3[rd] respondent rejecting his claim for release of his vehicle Mahindra Xylo 2017 model Car, bearing registration No. TN-37-CS-3142, a tourist cab which been seized by the 3[rd] respondent in C.R. No 7/2022 of the Excise Range Office, Chalakudy on allegation that the accused were found travelling in the said car carrying Ganja. The appellant herein was not made as an accused in the said Crime since W.A. No. 1799/2022 5 the 3[rd] respondent found that he is unaware of the contrabands seized from the accused persons. The petitioner submitted an application before the 3[rd] respondent Drug Disposal Committee, Thrissur under section 52A of NDPS Act for seeking to release the vehicle to the petitioner. His application been rejected by the 3[rd] respondent without hearing him and without considering the fact, whether the vehicle was liable for seizure Challenging the same the petitioner herein filed the above writ petition. 2.2 The learned single judge of this Court declined the prayer of the petitioner and had dismissed the above said writ petition holding that the position of law is settled in Shajahan v. Inspector of Excise [2019 (4) KLT 507] by the Division Bench of this Court and as per the dictum a court cannot erase jurisdiction under Section 451 of Criminal Procedure Code. 3. Having regard to the grievance of the petitioner and taking note of the Division Bench judgment of this Court in **Shajahan v. Inspector of Excise and Others** reported in **[2019(4) KLT 507]** , writ court, vide judgment dated W.A. No. 1799/2022 6 03.06.2022 in W.P.(Crl.) No. 381 of 2022, dismissed the writ petition. 4. Being aggrieved, instant writ appeal is filed. 5. When the matter came up for admission, by inviting attention of this Court to a judgment of the Hon'ble Supreme Court in **Sainaba v. State of Kerala** reported in **[2022 (7) KHC 273]** , Mr. K.P. Harish, learned Senior Government Pleader appearing for the respondents submitted that the registered owner, whose vehicle is involved in any of the offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 can approach the Special Court under Section 451 of the Code of Criminal Procedure for release of the vehicle alleged to have been involved in the offence. The relevant portion of the judgment in **Sainaba's** case (supra) 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.36C read with S.51 of the NDPS Act, Criminal Procedure Code would be applicable for proceedings by a_ W.A. No. 1799/2022 7 _Special Court under NDPS Act and S.451 has an inbuilt 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 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._ _9. The appeal is accordingly allowed leaving parties to bear their own costs.”_ 6. In the light of the recent pronouncement of the Hon'ble Supreme Court in **Sainaba v. State of Kerala** reported in **[2022 (7) KHC 273]** , the impugned judgment in W.P.(Crl.) No.381 of 2022, dated 03.06.2022 is set aside. Liberty is given to the appellant to approach the Special Court for release of vehicle, as stated supra. W.A. No. 1799/2022 8 The writ appeal is allowed accordingly. Sd/- **S. MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY JUDGE** DCS/14.12.2022