Sameesh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 5[TH] DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945 CRL.MC NO. 6236 OF 2023 ``` ## **`PETITIONER/S:`** ``` SAMEESH AGED 34 YEARS S/O.VIJAYAN, ARACKAPARAMBIL, VALLAARPADAM, ERNAKULAM, PIN - 682504 BY ADVS. CHITHRA R.SHENOY T.R.HARIKRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` RENJITH T.R , PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -2- Crl.M.C No. 6236 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No. 6236 of 2023 ============================================================= Dated this the 5[th] day of September, 2023 ## **ORDER** The petitioner is an autorickshaw driver who is arrayed as accused in Crime No.1033 of 2023 of Mulavukad Police Station. The above case is registered alleging offences punishable under Section 20(b)(ii)A of Narcotics and Psychotropic Substances Act. The prosecution case is that on 28.06.2023, the Sub Inspector of Police, Mulavukad Police Station found the auto rickshaw driven by the petitioner through the container road and on inspection of the said vehicle, found 5 grms of ganja kept inside the dash board of the said vehicle. The petitioner was arrested with the contraband and the vehicle was seized. Thereafter, the petitioner filed CMP No.5387 of 2023 before the Judicial First Class Magistrate Court – I, Ernakulam. The said petition was dismissed on the ground that the Court is not empowered to release the vehicle on interim custody based on the dictum laid down by this Court in **Wilson V. State of Kerala [2022 (7) KHC 450]** . -3- Crl.M.C No. 6236 of 2023 2. Heard the counsel for the petitioner and the Public Prosecutor. 3. After hearing both sides, I am of the considered opinion that the impugned order is to be set aside in the light of the dictum laid down by this Court in **Shanil v. State of Kerala [2023 (2) KHC 88]** . After considering all the earlier decisions, this Court passed a detailed order in the above case. It will be better to extract the relevant portion of the above judgment here: 11. Although, in Shajahan(supra), this Court held the Magistrates to be denuded of the power to grant interim custody under Section 451 Cr.P.C, that decision is impliedly reversed by the Supreme Court in Sainaba v State of Kerala [2022 (7) KHC 273]. To summarise, in Sainaba v State of Kerala and another [2022 KHC 917], a learned Single Judge of this Court held that the Special Court is not empowered to exercise jurisdiction under Section 451 to release a vehicle involved in an offence under the NDPS Act on interim custody. That order was reversed by the Supreme Court in Sainaba v State of Kerala [2022 (7) KHC 273]. Being contextually relevant, paragraphs 5 to 8 of the judgment is extracted hereunder; “5. It has been opined by the High Court that the Court is not empowered to exercise the jurisdiction under Section 451 of the Code of -4- Crl.M.C No. 6236 of 2023 Criminal Procedure to release a vehicle involved under NDPS Act in interim custody. 6. The appellant has urged inter alia that as per Section 36-C read with Section 51 of the NDPS Act, Criminal Procedure Code would be applicable for proceedings by a Special Court under NDPS Act and Section 451 has an inbuilt provision to impose any specific condition on the appellant while releasing the vehicle. The appellant is undoubtedly the registered owner of the vehicle but had not participated in the offence as alleged by the prosecution nor had knowledge of the alleged transaction. 7. Learned counsel seeks to rely on the judgment of this Court in Sunderbhai Ambalal Desai v. State of Gujarat – 2003 (2) KLT 1089 (SC) = (2002) 10 SCC 283 opining that it is no use to keep such seized vehicles at police station for a long period and it is open to the Magistrate to pass appropriate orders immediately by taking a bond and a guarantee as well as security for return of the said vehicle, if required at any point of time. 8. On hearing learned counsel for parties and in the conspectus of the facts and circumstances of the case, and the legal provisions referred aforesaid, we are of the view that this is an appropriate case for release of the vehicle on terms and conditions to be determined by the Special Court.” -5- Crl.M.C No. 6236 of 2023 A careful reading of the above paragraphs makes it clear that the appeal was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz, Section 36C r/w 51 of the NDPS Act and Section 451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Article 141 of the Constitution of India. I also take note of the judgment in Pradeep B. v District Drug Disposal Committee and others (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted. 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 Section 451 or 457 of the Code. Section 451 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, Section 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 Section 451 can be issued. On the other hand, the power under Section 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 Section 457 Cr.P.C, -6- Crl.M.C No. 6236 of 2023 irrespective of the procedure for disposal stipulated in Section 52A of the Act. 13. I refrain from delving into the question whether the seized vehicles could be termed as 'conveyance' used in carrying contraband, as it is for the jurisdictional court to decide that aspect depending on the facts of each case. As rightly pointed out by the learned Public Prosecutor, the complicity or otherwise of the owner, stipulated in Section 60(3), is also an aspect which the jurisdictional court can consider.” 4. In the light of the above judgment, I am of the considered opinion that the impugned order is to be set aside and the matter is to be reconsidered by the learned Magistrate. I make it clear that the I have not considered the matter on merit and the learned Magistrate should reconsider the matter in the light of the principle laid down by this Court in Shanil’s case (supra). Therefore, this Crl.M.C is disposed of in the following manner: 1. The order dated 06.07.2023 in CMP No.5387 of 2023 on the file of the Judicial First Class Magistrate Court-I, Ernakulam arising from Crime No.1033 of 2023 of Mulavukad Police Station is set aside. -7- Crl.M.C No. 6236 of 2023 2. The Judicial First Class Magistrate Court-I, Ernakulam is directed to reconsider CMP No.5387 of 2023, after giving an opportunity of hearing to the petitioner, as expeditiously as possible. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -8- Crl.M.C No. 6236 of 2023 ## **`APPENDIX OF CRL.MC 6236/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure ITHE TRUE COPY OF THE IN FIR 1033/2023 0F MULAVUKAD POLICE STATION Annexure IITRUE COPY OF THE CMP NO. 5387/23 IN CRIME NO.1033/23 DATED 6/7/2023, PASSED BY HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT - I Annexure IIITRUE COPY OF THE REPLY DATED 25/7/2023 ISSUED FROM THE OFFICE OF THE ASST. COMMISSIONER OF POLICE, NARCOTIC CELL ```