JAYADEVANK.K v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944 ``` ``` WP(CRL.) NO. 557 OF 2022 ``` ## **`PETITIONER:`** ``` JAYADEVANK.K, S/O.KARTHIKAYAN, AGED 35 YEARS, KIZHAKKEPURACKAL HOUSE, ANCHERY.P.O., THRISSUR - 680 006. ``` ``` BY ADV. SRI.SUMAN CHAKRAVARTHY ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2THE COMMISSIONER OF EXCISE (KERALA), EXCISE COMMISSIONER'S OFFICE, NANDAVANAM, THIRUVANANTHAPURAM – 695 033. 3THE DISTRICT LEVEL COMMITTEE (EXCISE) FOR THE DISPOSAL OF NARCOTIC DRUGS, PSYCHOTROPIC SUBSTANCES AND CONVEYANCES, ERNAKULAM, REPRESENTED BY DEPUTY EXCISE COMMISSIONER (EXCISE), ERNAKULAM, EXCISE ZONAL COMPLEX, KACHERIPADY, ERNAKULAM - 682 018. ``` ``` BY SRI.V.S.SREEJITH, PUBLIC PROSECUTOR ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(Crl.) No.557 of 2022 2 ## **`JUDGMENT`** ## **`Dated this the 02[nd ] day of August, 2022`** The writ petition is filed under Article 226 of the Constitution of India seeking for the following reliefs: “i) A writ of mandamus or any other appropriate writ, order or direction calling for Ext.P4 and to set aside the same and further direct the 3[rd] respondent to release the vehicle bearing Reg.No.KL-8-BU-9158 to the petitioner. ii) To declare that the Maruti Swift Car of the petitioner bearing Reg.No.KL-8-BU-9158 is not a conveyance for the purpose of Sec 52 A of the NDPS Act. iii) To issue such other reliefs that this Hon’ble Court may deem fit and proper consider the nature and circumstances of this case.” 2. The writ petitioner is the registered owner of a Maruti Swift Car bearing Registration No.KL-8-BU-9158 which was purchased after selling his previous car and making a payment of Rs.3,00,000/- by availing a hire purchase loan of Rs.4,80,000/from South Malabar Gramin Bank, Kuttanalloor Branch in the year 2020. Petitioner is working with a furniture dealer at Thrissur as it’s Marketing Executive. The vehicle has been used by him for his domestic purposes. The petitioner is regularly paying the EMI for W.P(Crl.) No.557 of 2022 3 the loan amount at the rate of Rs.7,500/- per month. The true copy of the R.C Book of the vehicle is produced alongwith the petition on hand as Ext.P1. Mr.Austin, one of the friends of the petitioner approached him on 27.11.2020 demanding the car for transporting one of his relatives to the hospital. The petitioner handed over the car to him. He promised to return it soon after meeting the purpose for which it was taken. Mr.Austin who obtained the car from him gave it to another person named Mr.Abhijit, who in turn gave the same to Mr.Marvin. The petitioner has no acquaintance with Abhijit or Marvin, to whom the vehicle was given by Mr.Austin. 3. When the vehicle was not returned, the petitioner made necessary enquiries and he obtained information about seizure of the vehicle by Excise Circle Inspector, Aluva in connection with Crime No.12/2020 on 28.11.2020. The petitioner then came to know that the crime was registered against Pranav, Marvin and Kasthoori for offences punishable under Sections 22(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). The specific case of the petitioner was that he had taken all reasonable care and caution against improper use of W.P(Crl.) No.557 of 2022 4 the vehicle. Accordingly he approached the 3[rd] respondent seeking for release of the vehicle by filing a representation on 07.01.2021. The said representation was rejected by order No.E6-9479/2020 dated 11.01.2021 stating that the 3[rd] respondent does not have the authority to release the same, true copy of which is produced alongwith the petition on hand as Ext.P2. The petitioner approached this Court again for a consideration of his representation by the 3[rd] respondent in tune with the direction issued in **Smart Logistics (M/s.) Kozhikode v. State of Kerala and others** [2020 (5) KHC 139]. By Ext.P4 order, the 3[rd] respondent dismissed the representation, after hearing the petitioner. 4. Thereafter the trial in the case was concluded and it ended in acquittal of the accused. The true copy of the judgment of Additional District and Sessions Court, North Paravur (for short ‘the trial court’) is produced alongwith the petition on hand as Ext.P5. By the judgment the mobile phones of the accused seized in the case on hand were directed to be returned to the respective accused. But, nothing was mentioned about the fate of vehicle seized in the case. In that context, the writ petition on hand is filed seeking for release of the Maruti Swift Car of the petitioner or W.P(Crl.) No.557 of 2022 5 else for issuance of a direction to the 3[rd] respondent to release the vehicle in his favour. 5. It is noticed from the averments in the writ petition that the trial court failed to pass an order with respect to the vehicle seized in the case. 6. Section 63 of the NDPS Act reads: ## **“63. Procedure in making confiscations.-** (1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the Court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the Court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: W.P(Crl.) No.557 of 2022 6 Provided further that if any such article or thing other than a narcotic drug, psychotropic substance, or controlled substance, the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the Court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.” ## 7. Sub-section (3) of Section 60 of the NDPS Act reads: “(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable to confiscation under sub-section (1) or subsection (2) shall be liable to confiscations, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.” A combined reading of the above provisions gives an indication that the registered owner of the vehicle must be heard by the trial court and an order must be passed on its’ liability for confiscation. > **Obj** 6. Since it is found that the trial court failed to mention about the vehicle in the judgment on hand, but only about the mobile phones seized, this Court finds its expedient in the interest **Obj** W.P(Crl.) No.557 of 2022 7 of justice to direct the petitioner to approach the trial court by filing an application under Section 63 of the NDPS Act. When such an application is preferred by the petitioner, the trial court shall hear the petitioner who is the registered owner of the vehicle on the three grounds envisaged under Sub-section (3) of Section 60 of the NDPS Act and pass appropriate orders in respect of the vehicle. The trial court shall pass necessary orders within one month from the date on which the application mentioned above is filed by the writ petitioner. The 3[rd] respondent shall abstain from proceeding against the vehicle until an order is passed by the trial court in the case on hand. With the above directions, this writ petition is disposed of. Sd/- **MARY JOSEPH JUDGE** NAB W.P(Crl.) No.557 of 2022 8 ## **`APPENDIX OF WP(CRL.) 557/2022`** ``` PETITIONER’S EXHIBITS: ``` - `EXHIBIT P-1` - `A TRUE COPY TRUE COPY OF THE RC BOOK PERTAINING TO VEHICLE NO. KL-8-BU-9158.` - `EXHIBIT P-2 A TRUE COPY OF THE ORDER NO. E6-9479/2020 DATED 11.01.2021 BY THE THE 3RD RESPONDENT.` - `EXHIBIT P-3 A TRUE COPY OF THE JUDGMENT DATED 03.02.2021 IN CRL.M.C NO.258/2021 BY THIS HON'BLE COURT.` - `EXHIBIT P-4 A TRUE COPY OF THE ORDER NO.E6-9479/2020 DATED 05.03.2021 BY THE 3RD RESPONDENT.` - `EXHIBIT P-5 A TRUE COPY OF THE JUDGMENT DATED 24.05.2022 IN S.C NO.436/20221 BY THE ADDL.DISTRICT AND SESSIONS JUDGE, NORTH PARAVUR.` - `EXHIBIT P-6 A TRUE COPY OF THE PHOTOGRAPH OF THE CAR KEPT IN THE PREMISE OF ALUVA CIRCLE OFFICE.` - `EXHIBIT P-7 A TRUE COPY OF THE COVERING LETTER DATED 18.06.2021.` ``` RESPONDENT’S ANNEXURES: NIL ``` ``` //TRUE COPY// ``` ``` P A TO JUDGE ```