Sheeja Rani G. v. State of Kerala and Sub Inspector of Police, Katakkada

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022/24TH AGRAHAYANA,** **1944** **CRL.MC NO.8647 OF 2022** **AGAINST THE ORDER IN CMP 2296/2022 DATED 25.07.2022 IN CRIME NO.484/2022 OF KATTAKADA POLICE STATION, PENDING BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KATTAKADA** ## **PETITIONER/PETITIONER:** SHEEJA RANI G., AGED 43 YEARS, W/O.RAJU @ SHIBU, "KURISSUMALA THADATHARIKATHU PUTHEN VEEDU", AMBOORI (P.O) & VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN – 695505. BY ADV.SRI.C.K.MOHANAN ## **RESPONDENTS/STATE/COUNTER PETITIONER:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN – 682031. 2 SUB INSPECTOR OF POLICE, KATTAKKADA POLICE STATION, KATTAKKADA (P.O), THIRUVANANTHAPURAM DISTRICT, PIN – 695572. BY ADV. SRI.G.SUDHEER, SR.PUBLIC PROSECUTOR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C. No.8647 of 2022** 2 ## **O R D E R** ## **Dated, this the 15[th] December, 2022** This is a petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience) seeking the following reliefs: _1. Order the immediate release of the scooter of the petitioner, Yamaha Ray ZR with the Registration No.KL-19-J-9162, which had been seized by the respondent in Crime No.484/2022, pending before the Court of the Judicial First Class Magistrate, Kattakada, U/s 451 of the CR.P.C, on any conditions deems fit and proper to this Hon'ble court in the interest of justice._ _2. Any other order this Hon'ble court deems fit in the nature and circumstances of the case._ 2. In this matter, the Kattakkada police on detecting contraband to the tune of 30 grams of Ganja from the accused at 7:10 p.m. on 24.06.2022, arrested the accused and seized the contraband. At the same time, the Yamaha scooter bearing registration No.KL-19-J-9162 also was seized. ## **Crl.M.C. No.8647 of 2022** **==> picture [7 x 9] intentionally omitted <==** 3. The petitioner herein, who is the registered owner of the vehicle bearing registration number KL-19-J-9162, moved an application, C.M.P.No.2296/2022 before the Judicial First Class Magistrate Court, Kattakkada seeking interim custody of the vehicle under Section 451 of Cr.P.C. 4. As per order dated 25.07.2022, the learned Magistrate dismissed the application relying on the judgment of this Court reported in ## **[2019(5)KHC 401]** _**Shajahan v. Inspector of Excise,**_ holding that the same is a subject matter of confiscation. 5. While assailing the said order, the learned counsel for the petitioner placed decision of this Court reported in _**Wilson C.C. v.**_ _**State of Kerala**_ **[2022 LiveLaw (Ker) 627] : [2022** **(7) KHC 450],** to contend that the facts of this case is similar to the facts dealt in _**Wilson**_ _**C.C.'s**_ case (supra) and therefore, applying the ## **Crl.M.C. No.8647 of 2022** **==> picture [7 x 9] intentionally omitted <==** same ratio, vehicle herein also is liable to be released. It is also submitted that small quantity of contraband was seized from the custody of the accused, who is none other the husband of the petitioner, on search of his body and the vehicle never used as a conveyance so as to make it as subject matter of confiscation. 6. On perusal of the Mahazar also, the submission appears to be convinced. 7. However, the learned Public Prosecutor opposed grant of interim custody on the ground that the accused attempted to ran away by using the scooter and as such it cannot be held that the vehicle not used for conveyance. 8. In _**Wilson C.C.'s**_ case (supra), this Court considered a case where the recovery was from the body of the driver of a car and held as under: _“It is true that, in the decision reported in_ _**Shajahan v/s Inspector of Excise, Excise Enforcement & Anti Narcotic Special Squad Malappuram & Others (2019 (5) KHC 401)** this Court held that, if the vehicle is a subject_ **Crl.M.C. No.8647 of 2022** 5 _matter of confiscation, the power of the Court to consider a claim under Section 451 of Cr.P.C stands denuded. However, ratio would apply to a case where, there should be materials to hold that, the vehicle has been used as a conveyance to carry the contraband. When a person who is driving a vehicle alone, found to be on suspicious circumstances, when searched, if contraband was taken from his body after complying the mandate under Section 50, it is not safe to hold that, the vehicle also has been used as conveyance so as to make the same as a subject matter of confiscation. In such circumstances, it has to be held that, the contraband was kept in secrecy by the accused in his body though he had travelled in the vehicle. Viewing so, it cannot be said that, in the present case, the vehicle has been used as conveyance and the vehicle is a subject matter of confiscation.”_ 9. On perusal of the prosecution records, the recovery of the vehicle involved in this case is similar to that of _**Wilson C.C.**_ 's case (Supra). Therefore, the ratio of the said decision would apply to the facts of this case. In view of the above legal position, the learned Magistrate went wrong in dismissing the application. Therefore, **Crl.M.C. No.8647 of 2022** 6 Annexure.A2 order stands set aside. Accordingly, this Crl.M.C. stands allowed, as under: i. The vehicle shall be released to the petitioner on production of original RC Book and Insurance Certificate for verification before the learned Magistrate along with its attested copies and photographs showing its number on the front side and rear side, after serving copies of the same to the Public Prosecutor also. ii. Thereafter, the learned Magistrate shall release the Yamaha scooter bearing registration number KL-19-J-9162 to the petitioner on executing bond for Rs.1,00,000/(Rupees One Lakh Only) by the petitioner with two solvent sureties, each for the like amount to the satisfaction of the Court below, undertaking to produce the vehicle before the Court, as and when directed. iii. The petitioner shall also file an affidavit stating that, the ## **Crl.M.C. No.8647 of 2022** **==> picture [7 x 9] intentionally omitted <==** vehicle shall not be sold without the prior permission of the Court below or till disposal of the case. Sd/- **A.BADHARUDEEN, JUDGE.** ww **Crl.M.C. No.8647 of 2022** 8 ## **APPENDIX OF CRL.MC 8647/2022** PETITIONER'S ANNEXURES: ANNEXURE A1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER SCOOTER YAMAHA RAY ZR WITH THE REGISTRATION NO.KL-19-J-9162 ISSUED BY THE SUB REGIONAL TRANSPORT OFFICE, PARASSALA DATED 25.09.2018. ANNEXURE A2 TRUE COPY OF THE ORDER IN C.M.P.2296/2022 OF THE J.F.C.M COURT, KATTAKKADA DATED 25.07.2022. ANNEXURE A3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN CRIMINAL APPEAL NO. 2005/2022 [SLP [CRL] NO.7280/2022] DATED 18.11.2022.