SASI v. The State of Kerala and The Excise Inspector

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943`** ## **`WP(C) NO. 9345 OF 2021`** ## **`PETITIONER:`** ``` SASI, AGED 56 YEARS, S/O.GOPALAN, KURICHITTAYIL (H), KADAMANITTA P.O, NARANGANAM, PATHANAMTHITTA DISTRICT-689 649 ``` ``` BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SRI.SAMEER M NAIR ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 2THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT-689 645 ``` ``` R1 & R2 BY SRI.PRASANTH M P, PUBLIC PROSECUTOR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ## **`W.P.(C.) No.9345 of 2021`** ## **`JUDGMENT`** ``` Dated this the 17[th ]day of September, 2021 ``` This writ petition is filed under Article 226 of the Constitution of India seeking for the following reliefs: "1. To issue a writ of certiorari calling for the records pertaining to Exhibit P3 notice/direction of the Judicial First Class Magistrate Court-I, Pathanamthitta to produce the KL-30-B1928 Autorikshaw for handing over the same to Drugs Disposal Committee and quash the same, in the interest of justice. 2. To issue a writ, order or direction stating that the Criminal Courts are having the power under Code of Criminal Procedure to consider the prayer of interim release of conveyances involved in the NDPS cases; 3. Issue such other orders or directions which deems necessary for the ends of justice and in the circumstances of the case." 2. The writ petitioner is the registered owner of the vehicle bearing Registration No.KL-30-B-1928 which was allegedly involved in Crime No.40/2018 of Excise Range Office, Pathanamthitta registered for the offences punishable under Sections 20(b)(ii)A and 60 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). ``` 3 ``` ## **`W.P.(C.) No.9345 of 2021`** 3. A brief narration of the facts of the case being relevant is made hereunder: Accused persons 3 in numbers were found transporting 250gms of ganja in an autorickshaw bearing Registration No.KL30-B-1928 through Kumbazha-Pathanapuram road at about 9.30 pm on 07.12.2018. Ext.P1 appended to the petition on hand is the true copy of the Crime and Occurrence report in Crime No.40/2018. 2[nd] respondent, the Excise Inspector, Excise Range Office, Pathanamthitta had prepared an inventory incorporating all the details of the contraband and the vehicle and produced it before the Judicial First Class Magistrate Court I, Pathanamthitta (for short ‘the court below’). The Magistrate by order dated 04.01.2019 allowed the application and directed the vehicle to be released in interim custody of the petitioner on certain conditions, true copy of which order is produced alongwith this petition as Ext.P2. Thereafter the petitioner was served with a notice from Judicial First Class Magistrate Court I, Pathanamthitta on 15.10.2020 directing him to return the vehicle to the court for enabling it's production before the NDPS and Conveyance Disposal Committee on the basis of Circular ``` W.P.(C.) No.9345 of 2021 ``` ``` 4 ``` Nos.EXC8/2020/EXCISE and EXC1/2020/EXCISE, the true copy of which is produced alongwith, marked as Ext.P3. 4. It is contended by Sri.Manu Ramachandran, the learned counsel for the writ petitioner that disposal of narcotic drugs, psychotropic substances, controlled substances or conveyances are contemplated by Section 52A of the NDPS Act only in the eventualities and circumstances incorporated in the provision itself. According to him, only when any of the circumstances exist, courts shall invoke the power under Section 52 A of the NDPS Act and order for disposal of the same. According to the learned counsel since the vehicle has already been released in interim custody and is kept in possession of the petitioner, power under Section 52A NDPS Act cannot be invoked for the reason that storage space is lacking in the court. According to him, the court has also not stated that any of the contingencies specified in Section 52A exist and for that reason the power of disposal is proposed to be exercised. According to him, the vehicle being in the custody of the petitioner by virtue of an order passed under Section 451 Cr.P.C and since a bond has been obtained as executed by him with two solvent ``` 5 ``` ## **`W.P.(C.) No.9345 of 2021`** sureties, the production could have been insisted by the court only after trial for confiscation purpose as provided under Section 63 NDPS Act. 5. It is also contended by the learned counsel that under sub-Section (3) of Section 60 of NDPS Act, owner of the vehicle needs to be heard prior to passing of an order directing confiscation of the vehicle. According to him since the vehicle now stands in the possession of the petitioner, the court below ought not to have proceed with disposal under Section 52A NDPS Act and notice ought not to have been issued for the purpose. Yet another contention was also raised by the learned counsel that even if an authorised officer is empowered to exercise the power under Section 52A NDPS Act, it has to be exercised only after issuing orders either of discahrge, conviction or acquittal as contemplated under Section 63 NDPS Act. 6. The power under Section 63 NDPS Act is confined to be exercised only in respect of an article or thing seized under the NDPS Act. This Court is not empowered to order confiscation under Section 63 of the NDPS Act since confiscation ``` W.P.(C.) No.9345 of 2021 ``` ``` 6 ``` of conveyance is a matter specifically under the contemplation of sub-Section (3) of Section 60 NDPS Act. Sub Section (3) of Section 60 NDPS Act being relevant is ## extracted hereunder: " **60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.** (1) xxx - (2) xxx (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use." It is clear from the above that the power under sub-Section (3) of Section 60 NDPS Act is strictly meant to be exercised while proceeding to confiscate a vehicle. The article or thing mentioned under Section 63 of the NDPS Act refers to Narcotic Drug, Psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils. Under sub-Section (3) of Section 60 of NDPS Act the ``` W.P.(C.) No.9345 of 2021 ``` ``` 7 ``` registered owner has got a right to be heard prior to passing of an order directing consfiscation of the vehicle. Section 52 A does not speak about grant of opportunity to the owner. 7. This Court in **Smart Logistics (M/s.) Kozhikode v. State of Kerala and Others [2020 (5) KHC 139]** has directed the Drugs Disposal Committee to grant an opportunity of being heard to the registered owner prior to passing of an order of disposal of the vehicle. 8. Unlike Section 53B of the Abkari Act, NDPS Act does not contain a provision empowering the court to exercise the power under Section 451 Cr.P.C. Therefore power under Section 451 Cr.P.C ought not to have been exercised by the court and the vehicle involved in an offence under NDPS Act ought not to have been released in interim custody of the petitioner. The right of a registered owner originally was to approach the authority empowered under sub-Section (3) of Section 60 of the NDPS Act and to get the vehicle released in his favour on making the court convinced of the reasons stated therein. 9. Section 52A has been inserted into NDPS Act by Act 2 of 1989 with effect from 29.05.1989 and the disposal referred to ``` W.P.(C.) No.9345 of 2021 ``` ``` 8 ``` is solely confined to narcotic drugs, psychotropic substances, controlled substances, or conveyances used for its transportation referred to therein. Since sub-Section (3) of Section 60 NDPS Act is still retained under the Act; the vehicle on seizure can be dealt with either under sub-Section (3) of Section 60 or Section 52 A NDPS Act. 10. The court in the case on hand has erroneously passed an order under Section 451 Cr.P.C for releasing the vehicle involved in an offence under the NDPS Act, in interim custody and the court below has now issued notice to the petitioner to return the vehicle for proceeding with disposal. While ordering interim custody, terms have been incorporated in the order, among which is a direction to the petitioner to surrender the vehicle as and when required by the court below. Therefore on the basis of such a term, the court below has now issued notice to the writ petitioner to return the vehicle for the purpose of proceeding with disposal under Section 52A NDPS Act. This Court finds no illegality in the court below issuing notice requiring return of the vehicle which stands in the temporary possession of the petitioner. The petitioner being not an ``` 9 ``` ## **`W.P.(C.) No.9345 of 2021`** accused in the offence but only the registered owner, it is for the court below after getting custody of the vehicle from the writ petitioner and prior to proceeding to order disposal of the vehicle to hear the petitioner. The impugned order does not suffer from any illegality and therefore, this Court is declined to issue the direction, as sought by the writ petitioner. Writ Petition is disposed of with the observation that the writ petitioner must be heard by the court below prior to passing of any orders for disposal of the vehicle. ``` sd/- ``` ``` MARY JOSEPH JUDGE ``` NAB ``` W.P.(C.) No.9345 of 2021 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 9345/2021`** ``` PETITIONERS EXHIBITS: ``` ``` EXHIBIT P1 ``` ``` THE TRUE COPY OF THE CRIME AND OCCURRENCE REPORT IN CRIME NO. 40/2018 OF EXCISE RANGE OFFICE, PATHANAMTHITTA. ``` ``` EXHIBIT P2THE TRUE COPY OF THE ORDER DATED 04.01.2019 IN CMP NO. 14125/2020 BY JFMC-I, PATHANAMTHITTA. ``` ``` EXHIBIT P3THE TRUE COPY OF THE NOTICE DATED 15.10.2020 ISSUED BY THE OFFICE OF JFMC I, PATHANAMTHITTA. ``` ``` EXHIBIT P4THE TRUE COPY OF THE CIRCULAR NO. EXC1/2020/EXCISE DATED 08.01.2020 ISSUED BY COMMISSIONER OF EXCISE, STATE OF KERALA. ``` ``` EXHIBIT P5THE TRUE COPY OF THE CIRCULAR NO. EXC8/2020/EXCISE DATED 18.03.2020 ISSUED BY COMMISSIONER OF EXCISE, STATE OF KERALA. ``` ``` EXHIBIT P6THE TRUE COPY OF THE ORDER DATED 19.01.2021 IN CRL.MC NO. 5729/2020 ``` ``` RESPONDENTS’ EXHIBITS: NIL ``` ``` //TRUE COPY// ``` ``` P A TO JUDGE ```