Rahul Santhosh vs State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942** ## **WP(C).No.5904 OF 2020(K)** ## **PETITIONER:** **RAHUL SANTHOSH AGED 19 YEARS S/O.SANTHOSH, KUNNAMPALLI HOUSE, VECHOOR P.O., VAIKOM, KOTTAYAM-686144.** **BY ADVS. SRI.C.Y.VINOD KUMAR SRI.C.ANILKUMAR (KALLESSERIL) SRI.P.M.MANASH SHRI.JAIN VARGHESE SHRI.NADEEM AHAMED RESHEED** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 THE DEPUTY EXCISE COMMISSIONER, DIVISION OFFICE, COLLECTORATE P.O., KOTTAYAM686002. 3 EXCISE INSPECTOR, VAIKOM RANGE, VAIKOM, KOTTAYAM-686141.** **R1-3 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-07-2020, THE COURT ON 30-07-2020 DELIVERED THE FOLLOWING:** W.P.(C) No.5904/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ ## W.P.(C) No.5904 of 2020 ------------------------------------------Dated this the 30[th] day of July, 2020 ## **J U D G M E N T** This writ petition is filed seeking the following reliefs: _i. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 3[rd] respondent to give interim custody of the Motor Cycle bearing temporary registration No.KL/36/TEM/2019/4551 to the petitioner._ _ii. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2[nd] respondent to accept and pass orders on Ext.P2 petition._ _iii. Grant such other and further relief as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of this case.”_ 2. The material averments in the writ petition can be stated as follows. The petitioner is the registered owner of the motorcycle bearing temporary registration No.KL/36/TEM/2019/ W.P.(C) No.5904/2020 3 4551. The aforesaid motorcycle was seized by the Excise Inspector, Vaikom Excise Range in Crime No.35/2019. One P.K.Achu, who is the son of the maternal aunt of the petitioner, is the accused in the aforesaid case. It is understood that the allegation in that case is that eight grams of ganja was seized from the possession of the accused and that the accused committed an offence punishable under Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). The motorcycle was seized by the excise party on 12.12.2019 and it is kept in the premises of the office of the Vaikom Excise Range, exposed to weather conditions. The petitioner is the sole owner of the aforesaid motorcycle. No other person has got any right over it. The petitioner filed an application as Crl.M.P.No.10183/2019 before the Judicial First Class Magistrate-I, Vaikom under Section 451 Cr.P.C seeking interim custody of the motorcycle. The aforesaid petition was dismissed by the learned Magistrate on 31.12.2019 as per Ext.P1 order. Thereafter, the petitioner approached the second respondent, the Excise Deputy Commissioner, Kottayam with Ext.P2 petition seeking interim W.P.(C) No.5904/2020 4 custody of the motorcycle. But, the second respondent did not receive the petition on the ground that he had not received any official communication permitting him to consider any petition seeking interim custody of vehicles. Hence, the writ petition seeking the above reliefs. 3. Heard learned counsel for the writ petitioner and also the learned Senior Government Pleader. 4. Before considering the merits of the writ petition, it is to be noted that, when the writ petition came up for admission on 12.03.2020, it was admitted and a direction was made by this Court that counter affidavit/statement of the respondents shall be filed within a period of two weeks. Meanwhile, lockdown was declared due to the pandemic Covid-19 and the summer vacation of the court also ensued. In such circumstances, the respondents have not filed any counter statement/affidavit. However, learned counsel for the petitioner insisted for hearing of the writ petition and therefore, it was heard on 09.07.2000 and on 14.07.2000. 5. In the circumstances mentioned above, this Court has to dispose of the writ petition only on the basis of the documents W.P.(C) No.5904/2020 5 produced by the petitioner, which unfortunately, are quite insufficient to prove or establish his contentions. 6. Ext.P1 is the copy of the order passed by the Judicial First Class Magistrate-I, Vaikom in the application filed by the petitioner before that court under Section 451 Cr.P.C, seeking interim custody of the vehicle allegedly owned by him. Ext.P1 order reads as follows: _“Petitioner is the registered owner of vehicle bearing Registration No.KL-36/G/TMP/2019/4551 which has been seized by the Excise Inspector, Vaikom Range in Crime No.35/2019. The said property has been produced before this court and the same is entered as T.563/19 in the property register. Petitioner submits that the property is being exposed to the vagaries of nature lying at the premises of police station. Hence he seeks interim custody under Section 451 Cr.P.C._ _2. Report has been called for from the investigating officer who has objected the release of the vehicle as the accused himself is the petitioner involved in NDPS crime._ _3. Heard both sides. Perused records._ _4. In J.J.Shajahan v. Inspector of Excise and Others 2019(5) KHC 401, it was held that the_ W.P.(C) No.5904/2020 6 _Magistrate cannot exercise powers u/s.451 Cr.P.C to order interim custody in the context of S.52A of Narcotic Drugs and Psychotropic Substances Act. Hence this court does not have the power to confer interim custody of the vehicle upon the petitioner. Hence application dismissed.”_ 7. 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 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. 8. Section 2(viii) of the Act states that ''conveyance'' means a conveyance of any description whatsoever including any aircraft, vehicle or vessel. W.P.(C) No.5904/2020 7 9. Section 52A(2) of the Act provides that, the officer empowered under Section 53 of the Act, to whom the seized narcotic drugs, psychotropic substances and conveyances are forwarded, shall prepare an inventory of them and make an application to the Magistrate for the purpose of certifying the correctness of the inventory so prepared or taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true or allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. Section 52A(3) of the Act states that, where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. 10. It is pertinent here to note that, after amendment by Act 16 of 2014 with effect from 01.05.2014, Section 52A of the Act provides for disposal of not only the contraband substances but also conveyances which are seized under the Act. 11. The Central Government has issued Notification dated 16th January, 2015 (hereinafter referred to as 'the Notification') W.P.(C) No.5904/2020 8 prescribing the procedure for disposal of the seized contraband substances and conveyances. Paragraph 3 of the Notification provides that any officer-in-charge of the police station or the officer empowered under Section 53 of the Act shall initiate action for disposal of the seized contraband substances and conveyances under Section 52A of the Act. 12. Paragraph 4 of the Notification deals with the manner of disposal of the seized substances and the conveyances. Clause (1) of Paragraph 4 of the Notification provides for making application by such officer as provided under Section 52A(2) of the Act. Clause (2) of Paragraph 4 of the Notification provides that, after the Magistrate allows the application under subsection (3) of Section 52A, such officer shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of seized items to the Chairman of the Drug Disposal Committee for a decision by the Committee on the question of disposal. W.P.(C) No.5904/2020 9 13. Paragraph 5 of the Notification provides for constitution of the Drug Disposal Committee and paragraph 6 specifies the functions of the Committee which includes passing orders for disposal of the seized items. Paragraph 7 of the Notification deals with the procedure to be followed by the Drug Disposal Committee with regard to disposal of the seized items. 14. It is pertinent to note that, item No.8 in Paragraph 8 of the Notification includes conveyances upto the value of twenty lakhs rupees. The Committee can order disposal of a vehicle which has got value upto twenty lakhs rupees. 15. Paragraph 9 of the Notification prescribes the mode of disposal of the drugs. It is pertinent here to note that sub-clause (e) of Clause 5 of paragraph 9 of the Notification provides that seized conveyances shall be sold off by way of tender or auction as determined by the Drug Disposal Committee. 16. In **Union of India v. Mohanlal : (2016) 3 SCC 379** , the Apex Court has considered the provisions contained in Section 52A of the Act and the Notification and given directions with regard to the procedure to be followed in respect of the W.P.(C) No.5904/2020 10 drugs and conveyances seized under the Act. The Apex Court has directed that, no sooner the seizure of any narcotic drug and psychotropic and controlled substance and conveyance is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act and such officer shall then approach the Magistrate with an application under Section 52A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under Section 52A(3). The Apex Court has not made any direction that any separate procedure shall be followed for disposal of the conveyances seized under the Act. 17. In **Shajahan v. Inspector of Excise : 2019 (5) KHC** **401: 2019 (4) KLT 507** , a Division Bench of this Court has taken note of the decision in **Mohanlal** (supra) and held that any conveyance seized under the Act has to be disposed of in the manner provided under Section 52A(1) of the Act and that the Magistrate has no jurisdiction to consider an application filed under Section 451 Cr.P.C for interim custody of a vehicle seized under the Act. W.P.(C) No.5904/2020 11 18. Section 63 of the Act provides for the procedure in making confiscation of the articles seized under the Act. Section 63(1) of the Act provides that, in the trial of offences under the Act, if the accused is convicted, acquitted or discharged, the court shall decide whether any article or thing seized under the 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. 19. In **Shajahan** (supra), a specific contention was raised before the Division Bench that that the conveyances involved in transportation of narcotic drugs or psychotropic substances may not belong to the actual transporter, in which event, confiscation and disposal by the competent officer without any enquiry in that regard may affect the rights of the owner of such vehicle. This contention was negatived by the Division Bench, holding as follows: _“In fact, Section 63 of the Act had provided for a procedure in making confiscations. Section 63 gives the power to the Court to decide whether any article or thing seized under the Act is liable to be_ W.P.(C) No.5904/2020 12 _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 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). W.P.(C) No.5904/2020 13 20. The discussion above leads to the following conclusions: The power to dispose of a conveyance seized under the Act is vested with the Drug Disposal Committee constituted under the Notification dated 16th January, 2015. The mode of disposal of conveyance, which is envisaged as per sub-clause (e) of Clause 5 of paragraph 9 of the Notification, is sale by way of tender or auction as determined by the Drug Disposal Committee. 21. The relief sought in the writ petition is for issuing a writ of mandamus. Mandamus literally means a command. A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the authority or the officer concerned and there is a failure on the part of that authority or officer to discharge the statutory obligation. A mandamus can be issued by the Court only when the applicant establishes that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought. Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive and specific duty presently existing and imposed by law upon officers and others who refuse W.P.(C) No.5904/2020 14 or neglect to perform such duty, when there is no other adequate and specific legal remedy available and without which there would be a failure of justice. The chief function of the writ of mandamus is to compel the performance of public duties prescribed by statute. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a statute or by rules or orders having the force of law. 22. In the instant case, the reliefs sought in the writ petition are for issuing a writ of mandamus directing the third respondent to release the vehicle to the interim custody of the petitioner and also for directing the second respondent to accept and pass orders on Ext.P2 petition. The second respondent is the Deputy Excise Commissioner, Kottayam and the third respondent is the Excise Inspector of Vaikom Excise Range. This Court had made a specific query to the learned counsel for the petitioner as to the power or authority or legal obligation of the second or the third respondent to release the vehicle to the interim custody of the petitioner. But, learned counsel could not point out any specific provision under any statute in that regard. W.P.(C) No.5904/2020 15 23. Learned counsel for the petitioner has also not pointed out any provision under which the Drug Disposal Committee has got obligation to release any vehicle to the interim custody of any person. Further, the Drug Disposal Committee is not made a party to the writ petition. 24. Moreover, as noticed earlier, the petitioner has not produced sufficient materials before the court in support of the averments in the writ petition. He has not produced any document to show that he is the owner of the vehicle which was seized by the excise party. He has also not produced copy of the relevant documents which would show the circumstances under which the excise party had seized the motorcycle. Copy of the crime and occurrence report or the seizure mahazar in the case is not produced. It is stated in Ext.P1 order passed by the learned Magistrate that the investigating officer had objected to the release of the vehicle on the ground that the petitioner is the accused in the case. According to the petitioner, he is not an accused in the case registered by the Excise Officer. There is no document produced by the petitioner enabling this Court to verify W.P.(C) No.5904/2020 16 and ascertain whether he is an accused or not in the case registered with regard to transporting or possession of ganja. 25. In the aforesaid circumstances, the petitioner has not made out any case for issuing a writ of mandamus, as prayed for in the petition. He is not entitled to get any relief in the writ petition. 26. The question whether the Drug Disposal Committee has got any power or authority to finally dispose of a conveyance seized under the Act by releasing the same to any person, instead of selling it by tender or auction, does not arise for consideration in this writ petition and that question is left open. Consequently, the writ petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(C) No.5904/2020 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 31.12.2019 IN CRL.M.P.NO.10183/2019 IN CRIME NO.35/2019 OF VAIKOM EXCISE RANGE ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, VAIKOM, KOTTAYAM DISTRICT.** **EXHIBIT P2 TRUE COPY OF THE CLAIM PETITION DATED 06.02.2020 PREFERRED BY THE PETITIONER.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS to Judge