Rineesh K. v. State of Kerala & Others

OP(CRL.) NO. 899 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 OP(CRL.) NO. 899 OF 2023** **CRIME NO.442/2023 OF Mavoor Police Station, Kozhikode CMP 7367/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **,KUNNAMANGALAM** ## **PETITIONER/S:** RINEESH K. AGED 40 YEARS S/O BABU, KAYALOTT, AMBALAPARAMBIL, OLAVANNA, KOZHIKODE DISTRICT, PIN - 673019 BY ADVS. ADITHYA RAJEEV S.PARVATHI ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE NARCOTICE DRUGS AND PSYCHOTROPIC SUBSTANCES AND CONVEYANCE DISPOSAL COMMITTEE, KOZHIKODE DISTRICT REPRESENTED BY DISTRICT POLICE CHEIF, KOZHIKODE DISTRICT, PIN - 673001 3 SUB INSPECTOR OF POLICE MAVOOR POLICE STATION, MAVOOR, KOZHIKODE DISTRICT., PIN - 673661 OP(CRL.) NO. 899 OF 2023 2 ## **OTHER PRESENT:** SMT SREEJA V, PP **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(CRL.) NO. 899 OF 2023 3 ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------O.P.(Crl.) No.899 of 2023 ---------------------------------------------Dated this the 21[st] day of November, 2023** ## **JUDGMENT** Petitioner is the owner of the motor vehicle bearing Registration No. KL-85/A-9114. The vehicle was seized by the 3[rd] Respondent on 23.07.2023 in connection with Crime No.442/2023 of the Mavoor Police Station. The crime was registered against one Abdul Fatah K., alleging commission of offence under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The prosecution case is that, on 23.07.2023 at about 11.30 am, while the Sub Inspector of Police, Mavoor Police Station was on patrol duty, he had noticed the accused sitting suspiciously in a motor vehicle bearing Registration No. KL85/A-9114 parked on the Puthenkulam - Mecherikkunnu Road. It is alleged that police party had apprehended the accused, OP(CRL.) NO. 899 OF 2023 4 who had attempted to flee on their arrival and that the Police party had seized 1.070 grams of MDMA from the back pocket of the accused. It is an admitted fact that a thorough search was conducted in the motor vehicle, no other contraband is seized from the vehicle. The accused was arrested from the spot and the Police Party had also seized the motor vehicle. 3. The petitioner filed a petition under 457 Cr.P.C. seeking interim custody of the vehicle before the Special Judge (NDPS Act Cases), Vatakara. The learned Special Judge, after perusing the records, found that contraband seized was identified as methamphetamine and since only small quantity of the substance was involved, the Court had no jurisdiction to entertain the petition. The Court transferred the case to the Magistrate Court as per Ext.P2 order. 4. Thereafter the petitioner filed an application before the Court of the Judicial Magistrate of First Class, Kunnamangalam, under Section 457 Cr.P.C. seeking release of the petitioner’s motor vehicle. The learned Magistrate, as per Ext.P3 order, released the vehicle to the petitioner, after imposing certain conditions. Even though Ext.P3 order was OP(CRL.) NO. 899 OF 2023 5 passed, the vehicle was not released based on an instruction submitted by the Assistant Public Prosecutor that since confiscation proceedings in relation to the vehicle had been initiated, court has no jurisdiction to release the vehicle. Hence the learned Magistrate did not permit the petitioner to execute the bond even though Ext.P3 order is passed. 5. Then the petitioner preferred Crl.M.P. No.7367/2023 before the Court of the Judicial Magistrate of First Class, Kunnamangalam under Section 457 Cr.P.C. seeking release of the Registration certificate and Insurance Policy of the vehicle.The learned Magistrate had found that the vehicle had been produced before the Drug Disposal Committee and that confiscation proceedings had been initiated. Hence, the learned Magistrate concluded that the court lacks jurisdiction and the petition was dismissed as per Ext.P4. Aggrieved by the same, this O.P.(Crl.) is filed. 6. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 7. It is an admitted fact that the vehicle was released to the petitioner as per Ext.P3 order and that order became OP(CRL.) NO. 899 OF 2023 6 final. It is not challenged by the prosecution. Moreover, it is also an admitted fact that the contraband is seized from the pocket of the accused and not from the vehicle. This Court in **Wilson C.C. v. State of Kerala** [2022 (2) KHC 452] observed that if the contraband is recovered on body search from a person, who was driving a vehicle, it has to be held that the contraband was kept in secrecy by the accused in his body, though he had travelled in a vehicle and in such cases, it cannot be said that the vehicle has been used as conveyance and the vehicle is a subject matter of confiscation. 8. Similary in **Shanil v. State of Kerala** [2023 (2) KLT 430], this Court observed that when a vehicle is produced before a criminal court in connection with an NDPS Act, whether the same is used for the conveyance of the contraband can be decided by the court while deciding a petition under Sec. 451 or 457 Cr.P.C. The relevant portion of the judgment is extracted hereunder : 12. Having found the jurisdictional courts to be having the power to grant interim custody, the ancillary question is whether such power is to be exercised under S.451 or 457 of the Code. S.451 OP(CRL.) NO. 899 OF 2023 7 will be applicable when a property, which includes seized vehicles, is produced before a criminal court during inquiry or trial. As regards conveyances seized in connection with offences under the NDPS Act, S.52A only provides for preparation of inventory containing details of the conveyance relevant for its identification and the making of an application to the Magistrate for certifying the correctness of the inventory. The seized vehicles are not produced before the Magistrate, upon which alone an order for interim custody under S.451 can be issued. On the other hand, the power under S.457 can be exercised with respect to a property, which is not produced before the court, but the seizure of which is reported. The above discussion leads me to the conclusion that the jurisdictional courts have the power to grant interim custody under S.457 Cr.P.C, irrespective of the procedure for disposal stipulated in S.52A of the Act.” 9. In the light of the above discussion, I think the order passed by the learned Magistrate as evident by Ext.P3 is confirmed and Ext.P4 is to be set aside for reconsideration. Therefore, this original petition (crl.) is disposed of with the following directions : - 1) The Judicial First Class Magistrate Court, Kunnamangalam is directed to release the vehicle as ordered in Ext.P3 forthwith. - 2) Ext.P4 is set aside and the Judicial First Class OP(CRL.) NO. 899 OF 2023 8 Magistrate Court, Kunnamangalam is directed to reconsider the matter in the light of the observation in this judgment. **Sd/P.V.KUNHIKRISHNAN JUDGE** JV SKS OP(CRL.) NO. 899 OF 2023 9 ## **APPENDIX OF OP(CRL.) 899/2023** PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF THE FIRST INFORMATION REPORT DATED 23-07-2023 IN CRIME NO. 443 OF 2023 OF THE MAVOOR POLICE STATION, KOZHIKODE DISTRICT Exhibit-P2 A TRUE COPY OF THE ORDER DATED 23-09-2023 IN CRL.M.P NO. 792/2023 OF THE COURT OF SPECIAL JUDGE (NDPS ACT CASES), VATAKARA Exhibit-P3 CERTIFIED COPY OF THE ORDER DATED 21-102023 IN CRL.M.P NO. 6719/2023 OF THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM Exhibit-P4 FREE COPY OF THE ORDER DATED 14-11-2023 IN CRL.M.P NO. 7367 OF 2023 OF THE OF THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM