Prasad K.R. v. Assistant Commissioner of Excise, Excise Enforcement and Anti Narcotic Special Squad, Palakkad; District Drug Disposal Committee; P.C. Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 WP(CRL.) NO. 905 OF 2022** ## **PETITIONER/S:** PRASAD K.R AGED 60 YEARS S/O.RAMAKRISHNAN NAIR, PARVANAM, ERAVUKADU, VADAKKAL P.O., SANTHANAPURAM, ALAPPUZHA DISTRICT-688003. BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA M.V.VIPINDAS ANJALY T.A V.R.SANJEEV KUMAR ## **RESPONDENT/S:** 1 ASSISTANT COMMISSIONER OF EXCISE EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, OFFICE OF THE ASSISTANT EXCISE COMMISSIONER, EXCISE TOWER, PALAKKAD-678001. 2 DISTRICT DRUG DISPOSAL COMMITTEE, (NDPS AND CONVEYANCE DISPOSAL COMMITTEE), PALAKKAD-678001, REPRESENTED BY THE DEPUTY EXCISE COMMISSIONER (CHAIRMAN). 3 P.C.THOMAS, S/O. CHAKKUNNI, AIRPORT JUNCTION, THOOKKUPARAMBU, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT-683572. BY ADV ADVOCATE GENERAL OFFICE KERALA ## **OTHER PRESENT:** PP M.C.ASHI **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.) No.905 of 2022 -2- ## **JUDGMENT** Dated this the 2[nd] day of February, 2023 Petitioner is the owner of an Ashok Leyland passenger bus bearing registration No.KL-40H0452. The third respondent is permitted to use the vehicle as a contract carriage based on Ext.P3 agreement. In the course of such user, the third respondent had brought down some labourers from West Bengal to Kerala. During that journey, the vehicle was intercepted and huge quantity of ganja recovered from the passengers. This resulted in Crime No.47 of 2021 being registered by the Palakkad Excise Enforcement and Anti Narcotic Special Squad and the petitioner's vehicle being seized. The vehicle was later produced before the jurisdictional court and sent over to the Drug Disposal Committee for initiating proceedings for confiscation. ## W.P.(Crl.) No.905 of 2022 -3- Thereupon, the petitioner moved an application seeking release of his vehicle contending that he is not an accused and the vehicle cannot be termed as a 'conveyance' used in transportation of contraband. The application having been rejected by Ext.P9, this writ petition is filed. 2. Learned Counsel for the petitioner relied on the decision of this Court in _**M/s.Smart Logistics v. State of Kerala [2020 (5) KLT 298]**_ to contend that even in the absence of a specific provision for hearing the owner of the vehicle, the Drug Disposal Committee is bound to hear the owner since the _principles of natural justice_ are deemed to be inbuilt to any proceeding which entails civil consequences on citizens. 3. I heard the learned Public Prosecutor also. 4. In _**M/s.Smart Logistics,**_ after elaborate consideration of the relevant statutory W.P.(Crl.) No.905 of 2022 -4- provisions, the learned Single Judge held as under; _“50. True, the applicability of the principals of natural justice can be excluded by necessary implication. But, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences relating to infraction of property. The principle holds good irrespective of whether the power conferred on a statutory body is administrative or quasi-judicial. When the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature and where no mechanism is provided for review or appeal on merits against the decision, it cannot be found that the statute has excluded the applicability of principles of natural justice. 51. In view of the above mentioned principles, it cannot be found that the Drug Disposal_ W.P.(Crl.) No.905 of 2022 -5- _Committee has no power or necessity to hear a person who would be affected by its order on disposal of a conveyance. The requirement of giving reasonable opportunity of being heard to the person affected has to be read into the provisions of the Notification, atleast when such a person seeks such an opportunity._ _52. At this juncture, it is to be noted that, when seizure is illegal, normally, the property illegally seized, shall be returned (See Commissioner of Commercial Taxes v. Ramkrishan (1968 KLT OnLine 1146 (SC) = AIR 1968 SC 59). Of course, if the property seized is contraband substance, it shall not be returned._ _53. The discussion above leads to the conclusion that the petitioner is not entitled to get a writ of mandamus to be issued in his favour for releasing the lorry seized under the Act on interim custody. The petitioner has not challenged the constitutional validity of any of the provisions in the Notification. The petitioner has also not sought any declaration that the seizure of the lorry owned by it was_ W.P.(Crl.) No.905 of 2022 -6- _illegal and void. The petitioner has not sought any relief for issuing any direction to the Drug Disposal Committee to finally dispose of the vehicle by releasing it to the firm. In such circumstances, in the instant case, it is not necessary for this Court to decide the question whether the seizure of the lorry owned by it was illegal or not. However, it is only proper to grant an opportunity to the petitioner to make a representation to the Drug Disposal Committee raising its claim over the vehicle._ _54. Consequently, the Writ Petition is disposed of as follows: The prayer for issuing a writ of mandamus to the respondents is rejected. The petitioner is at liberty to make a representation to the third respondent Drug Disposal Committee, within a period of fifteen days from today, raising its claim over the lorry owned by it which was seized under the Act. If any such representation is made by the petitioner, the third respondent Drug Disposal Committee, before taking a decision on the disposal of the vehicle, shall grant an opportunity of hearing to_ ## W.P.(Crl.) No.905 of 2022 -7- _the petitioner and pass appropriate orders on the representation made by the petitioner. If the value of the vehicle is over twenty lakhs rupees and if the third respondent Drug Disposal Committee only sends its recommendation to the Head of the Department for the matter to be considered by the State Level Drug Disposal Committee, the representation made by the petitioner shall be considered and appropriate orders shall be passed thereon by the State Level Drug Disposal Committee after granting an opportunity of hearing to the petitioner. Copy of the order passed on the representation made by the petitioner shall be communicated to it by the Drug Disposal Committee concerned and till such communication is made, the vehicle shall not be disposed of by the respondents and it shall be kept in the safe custody of the District Police Chief, Kozhikode pursuant to the interim order dated 19.03.2020 passed by this Court in the Writ Petition.”_ I am in respectful agreement with the above findings. The impact of the impugned order is to deprive the petitioner of his vehicle without ## W.P.(Crl.) No.905 of 2022 -8- affording a reasonable opportunity to put forth his case. It is to be noted that the petitioner has a specific case that he had entrusted the vehicle to the third respondent on the strength of Ext.P3 agreement. Ext.P9 order passed without considering these relevant aspects therefore militates against the guarantee under Article 300 A of the Constitution of India that no citizen shall be deprived of his property except in accordance with law. 5. As pointed out by the learned Public Prosecutor, the quantity of contraband involved is 145.5 kg ganja. No doubt, that is also an aspect which the Drug Disposal Committee should consider while deciding whether to confiscate and sell the vehicle. In the result, the writ petition is allowed. Ext.P9 order is set aside and the second respondent is directed to consider Ext.P5 representation before taking a decision whether W.P.(Crl.) No.905 of 2022 -9- to confiscate the petitioner's vehicle or not. Considering that the petitioner's vehicle is a contract carriage which, if left idle, will cause substantial loss to the owner, the Drug Disposal Committee is directed to take a decision in the matter within two months of receipt of a copy of this judgment, after affording an opportunity of hearing to the petitioner. Sd/- **V.G.ARUN JUDGE** Scl/ -10- ## W.P.(Crl.) No.905 of 2022 ## **APPENDIX OF WP(CRL.) 905/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE REGISTRATION| |---|---| ||CERTIFICATE OF VEHICLE BEARING| ||REGISTRATION NO. KL 40 H 0452.| |Exhibit P2|TRUE COPY OF THE CONTRACT CARRIAGE| ||PERMIT ISSUED BY THE RTA, ALAPPUZHA| ||RELATING TO THE BUS NO. KL 40 H 0452| ||WHICH IS VALID UPTO 14.02.2021.| |Exhibit P3|TRUE COPY OF THE AGREEMENT DATED| ||26.05.2021 EXECUTED BETWEEN THE| ||PETITIONER AND THE 3RD RESPONDENT.| |Exhibit P4|TRUE COPY STATEMENT DATED| ||25.10.2021OBTAINED BY THE 2ND| ||RESPONDENT FROM THE PETITIONER IN| ||CONNECTION WITH CRIME NO.47/2021 OF| ||PALAKKAD EXCISE ENFORCEMENT & ANTI-| ||NARCOTIC SPECIAL SQUAD.| |Exhibit P5|TRUE COPY OF THE APPLICATION DATED| ||30.03.2022 FILED BEFORE THE 3RD| ||RESPONDENT FOR INTERIM RELEASE OF THE| ||VEHICLE MENTIONED IN ANNEXURE-I AND| ||SEIZED IN CONNECTION WITH CRIME| ||NO.47/2021.| |Exhibit P6|TRUE COPY OF THE ORDER MADE IN| ||CRL.M.C.NO.1430/2021 ISSUED BY THIS| ||HON'BLE COURT ON 18.03.2021.| |Exhibit P7|TRUE COPY OF THE NOTICE DATED| ||04.05.2022 AGAINST THE PETITIONER BY| ||THE FINANCIERS M/S. CHOLAMANDALAM| ||INVESTMENT AND FINANCE COMPANY LIMITED| |Exhibit P8|TRUE COPY OF THE JUDGMENT MADE BY THIS| ||HON'BLE COURT IN CRL.M.C. NO.| ||3985/2022. DATED 1.8.2022| |Exhibit P9|TRUE COPY OF THE ORDER DATED| ||19.08.2022 PASSED BY THE 2ND| ||RESPONDENT.| |Exhibit P10|TRUE COPY OF THE JUDGMENT MADE IN| ||CONNECTION WITH SMART LOGISTICS,| ||KOZHIKODE VS. STATE OF KERALA & OTHERS| ||REPORTED IN 2020 (5) KHC 139.| W.P.(Crl.) No.905 of 2022 -11-