Midhun Thomas v. State of Kerala and Sub Inspector of Police, Vakathanam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **Crl.MC.No.2638 OF 2020(H)** **AGAINST THE PROCEEDINGS IN CMP 1908/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHANGANACHERRY** ## **PETITIONER/ACCUSED:** **MIDHUN THOMAS AGED 34 YEARS S/O. THOMAS MATHAI, VADAKKEKKUTTU HOUSE, THURUTHY P.O, NEAR PUNNAMOODU, CHANGANACHERY, KOTTAYAM DISTRICT PIN 686 535** **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENTS/STATE:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM. PIN 682 031**| |**2**|**SUB INSPECTOR OF POLICE,**| ||**VAKATHANAM POLICE STATION,**| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031**| ## **SRI SUMAN CHAKRAVARTHY-SR GP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.06.2020, THE COURT ON 25.06.2020 PASSED THE FOLLOWING:** Crl.M.C.No.2638/2020 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.2638 of 2020 -------------------------------------------Dated this the 25[th] day of June, 2020 ## **O R D E R** Does the dictum laid down by the Division Bench of this Court in the decision in **Shajahan v. Inspector of Excise [2019 (5) KHC 401: 2019 (4) KLT 507]** interdict a Magistrate from exercising the power under Section 451 Cr.P.C in respect of a mobile phone seized from the possession of a person in the course of a search conducted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act')? This is the question posed for consideration in this petition filed under Section 482 Cr.P.C. 2. The petitioner is the first accused in the case registered as Crime No.212/2020 of the Vakathanam police station under Section 20(b)(ii)A of the Act and also under Sections 269 and 188 I.P.C and the provisions of the Kerala Crl.M.C.No.2638/2020 3 ## Epidemic Diseases Ordinance, 2020. 3. The prosecution case is that, on 06.04.2020, at about 14.10 hours, when the petitioner and the second accused in the case were travelling on an unregistered motor cycle, the Sub Inspector of Vakathanam police station intercepted them and on conducting search of the body of the petitioner, three grams of ganja oil was found in his possession. Smoking paper and other articles were found in the possession of the second accused. 4. The Sub Inspector seized the contraband substance and the mobile phone found in the possession of the petitioner and produced the articles in the Court of the Judicial First Class Magistrate – I, Changanassery. 5. The petitioner filed an application as Crl.M.P.No.1908/2020 under Section 451 Cr.P.C in the Magistrate's Court for releasing the mobile phone which was seized by the police from his possession. 6. Learned Magistrate dismissed the aforesaid application filed by the petitioner holding that the application is not maintainable in view of the decision in **Shajahan** (supra). The Crl.M.C.No.2638/2020 4 legality and propriety of the aforesaid order are challenged in this petition. 7. Sri.M.P.Madhavan Kutty, learned counsel for the petitioner contended that a mobile phone is not an article which comes under Section 52A of the Act and therefore, the learned Magistrate has gone wrong in finding that the decision in **Shajahan** (supra) applies to the application filed by the petitioner. 8. Sri.Suman Chakravarthy, learned Senior Public Prosecutor has fairly conceded that the provision contained in Section 52A of the Act is applicable only to the four types of articles or things mentioned in that provision. 9. Section 52A(1) of the Act provides that, the Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or Crl.M.C.No.2638/2020 5 conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure specified. 10. A bare perusal of Section 52A(1) of the Act would reveal that the applicability of that provision is confined to four types of articles or things seized under the Act. They are: (1) narcotic drugs (2) psychotropic substances (3) controlled substances and (4) conveyances. Section 52A(1) of the Act has no application to any other thing or article seized under the Act. 11. True, in **Shajahan** (supra), after analysing the scope of the provision contained in Section 52A(1) of the Act in the light of the decision of the Supreme Court in **Union of India v. Mohanlal : (2016) 3 SCC 379** , the Division Bench has held that “going by the statutory provision under the Special Act, the power of the Magistrate to consider a claim under Section 451 of Cr.P.C stands denuded”. The dictum laid down by the Division Bench in **Shajahan** (supra) has to be understood in the light of Crl.M.C.No.2638/2020 6 the issue which arose for consideration before it. The issue for consideration before the Division Bench was regarding the power of the Magistrate under Section 451 Cr.P.C to release a conveyance or vehicle seized under the Act. It was in that context the Division Bench held that the Magistrate has no power to deal with a claim under Section 451 Cr.P.C. This is clear from the following passage in **Shajahan** (supra) which reads as follows: _“Section 63 gives the power to the Court to decide whether any article or thing seized under the Act is liable to be confiscated in terms of Section 60 or Section 61 or Section 62 of the Act. Before the amendment to Section 52A, conveyance was not included as an item which should be seized and disposed. The very fact that conveyance had been incorporated in the amendment itself indicates that the Government intended to provide a special procedure to deal with such conveyance, while taking into account the fact that most of the transportation are done in conveyances which itself is defined under Section 2(viii) as meaning "a conveyance of any description whatsoever including any aircraft, vehicle or vessel." Therefore, if any vehicle is_ Crl.M.C.No.2638/2020 7 _involved in transportation of narcotic drug, psychotropic substance or controlled substance, such vehicles also could be seized and disposed of in terms of Section 52A(1) of the Act. Section 63 was a special procedure available at the inception of the Act and when the statute had been amended giving the power of disposal of narcotic drugs, psychotropic substances, controlled substances or conveyances to a special officer, he will have to act in accordance with the procedure prescribed under the Act or the Rules framed thereunder”._ (emphasis supplied) 12. On a careful reading of the decision in **Shajahan** (supra), in the light of the decision of the Apex Court in **Mohanlal** (supra) and also the provision contained in Section 52A of the Act, it is crystal clear that the dictum laid down in **Shajahan** (supra) that “the power of the Magistrate to consider a claim under Section 451 of Cr.P.C stands denuded” does not apply to any article or thing other than narcotic drugs, psychotropic substances, controlled substances and conveyances seized under the Act. Crl.M.C.No.2638/2020 8 13. It follows that the impugned order passed by the learned Magistrate is not sustainable under law and it is liable to be set aside. The learned Magistrate has not considered the merits of the application filed by the petitioner since she found that the application was not maintainable. Necessarily, the application filed by the petitioner for interim custody of the mobile phone has to be decided afresh by the learned Magistrate after hearing the petitioner and the prosecution. 14. Consequently, the petition is allowed. The impugned order passed by the learned Magistrate is set aside. The application filed by the petitioner as Crl.M.P.No.1908/2020 is restored to file. The learned Magistrate shall dispose of the aforesaid application afresh after hearing the petitioner and the prosecution. 15. Learned counsel for the petitioner has prayed that the court below may be directed to dispose of the application filed by the petitioner within a time frame to be fixed by this Court. If the counsel for the petitioner, inspite of the public health emergency prevailing due to Covid-19, is ready and willing to Crl.M.C.No.2638/2020 9 appear in person before the court, the learned Magistrate shall dispose of the application within a period of two weeks from the date of producing a certified copy of this order. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.2638/2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1** **TRUE COPY OF THE INTERIM CUSTODY APPLICATION BEARING C.M.P NO. 1908/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY** ## **ANNEXURE II** **TRUE COPY OF THE COMMON ORDER DATED 1105-2020 BEARING C.M.P NO. 1908/2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY.** ## **ANNEXURE III** **TRUE COPY OF THE FIRST INFORMATION REPORT DATED 06.04.2020 IN CRIME NO.212 OF 2020 BEFORE THE VAKATHANAM POLICE STATION** ## **ANNEXURE IV** **TRUE COPY OF THE REPORT DATED NIL SUBMITTED BY THE SUB INSPECTOR OF POLICE, VAKATHANAM BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANACHERRY IN CRIME NO.212/2020** ## **RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE