Siraj Jaleel v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942** ## **Crl.MC.No.1580 OF 2020(F)** **AGAINST THE ORDER/JUDGMENT IN CMP 36/2020 DATED 29-01-2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, PEERUMEDU** **CRIME NO.25/2020 OF Peruvanthanam Police Station , Idukki** ## **PETITIONER** **SIRAJ JALEEL** **S/O. JALEEL, AGED 24 YEARS, NELLIMALA PUTHUPARAMBIL HOUSE, ANAKKAL P O, KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT, PIN-686507.** **BY ADVS. SRI.SHAIJAN C.GEORGE SMT.SAJITHA GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682031.** - **2 S.I. OF POLICE PERUVANTHANAM POLICE STATION, PERUVANTHANAM, IDUKKI DISTRICT, PIN-685532.** **R1-2 BY SRI.SUMAN CHAKRAVARTHY, P.P** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.03.2020, THE COURT ON 21.05.2020 PASSED THE FOLLOWING:** **Crl.MC.No.1580 OF 2020(F)** **2** ## **R. NARAYANA PISHARADI, J** ## **--------------------------------------------Crl.M.C No. 1580 of 2020 ---------------------------------------------** Dated this the 21[st] day of May, 2020 ## **O R D E R** The petitioner is the first accused in the case registered as Crime No. 25/2020 of the Peruvanthanam Police Station under Section 20(b) - (ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). 2. The prosecution case is as follows: On 22.01.2020, at about 18.00 hours, at the place Panchalimedu, the Sub Inspector of Peruvanthanam Police Station inspected the car, which was yet to be registered, which was driven by the petitioner. On inspection of the car, 66 grams of ganja was found in the dickey of the car. The Sub Inspector seized the ganja and the vehicle and arrested the petitioner and the other persons who were travelling in the car. A case was registered against them for the offence under Section 20(b)(ii)A of the Act as Crime No.25/2020. 3. The car was produced before the Magistrate's Court concerned. The petitioner filed an application under Section 451 Cr.P.C **Crl.MC.No.1580 OF 2020(F)** **3** in that court for granting interim custody of the vehicle to him, claiming that he is the owner of that vehicle. As per Annexure-A5 order, relying upon the decision of the Division Bench of this Court in **Shajahan v. Inspector of Excise : 2019 (4) KLT 507** , learned Magistrate dismissed the aforesaid application. 4. This petition is filed by the first accused in the case for releasing the vehicle to his interim custody by invoking the power of this Court under Section 482 Cr.P.C. 5. Heard learned counsel for the petitioner and the learned Public Prosecutor. 6. Prima facie, the car driven by the petitioner, which is allegedly owned by him, was used for keeping and transporting ganja, though it may be of small quantity. The plea of the petitioner that the case was falsely registered against him cannot be considered at this stage. 7. In **Shajahan** (supra), a Division Bench of this Court has held as follows: “Section 52A was introduced into the statute book to get over the difficulties that were being faced in disposal of seized narcotic drugs and psychotropic substances. Necessarily, the procedure prescribed under Section 52A requires to be followed when any narcotic drugs, psychotropic substances, controlled substances or conveyances are seized and forwarded to the officer in **Crl.MC.No.1580 OF 2020(F)** **4** charge of the police station or the officer empowered under Section 53 or the officer referred to in sub-section (1), who shall prepare an inventory of such articles and take such procedures as prescribed therein. The idea of disposing the narcotic drugs and other substances including conveyances is after getting it certified by the Magistrate and the Magistrate's jurisdiction is confined to ensure compliance of Sections 52A(2) and (3)”. The Division Bench proceeded further and observed as follows: “The main contention urged by the learned counsel for petitioners is that the conveyances involved in transportation of narcotic drugs or psychotropic substances may not belong to the actual transporter, in which event, confiscation and destruction by the competent officer without any enquiry in that regard may affect the rights of the owner of such vehicle. 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 confiscated in terms of Section 60, Sections 61 or 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 **Crl.MC.No.1580 OF 2020(F)** **5** 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). ## After referring to the decision of the Apex Court in **Union of India v. Mohanlal : (2016) 3 SCC 379** , the Division Bench held as follows: “In the light of the aforesaid law laid down by the Apex Court, the said procedure has to be followed in every case and there is no two way of looking at it. Apparently, in such instances, going by the statutory provision under the Special Act, the power of the Magistrate to consider a claim under Section 451 of Cr.P.C. stands denuded.” 8. There is no prayer in this petition to quash or to set aside Annexure-A5 order passed by the learned Magistrate. The petitioner very well knows that making a prayer for such relief would not meet with any success in the light of the decision in **Shajahan** (supra). Therefore, his attempt is to get the power of this Court under Section 482 Cr.P.C invoked directly to circumvent Annexure-A5 order and to get interim custody of the vehicle. There are no extra-ordinary or **Crl.MC.No.1580 OF 2020(F)** **6** exceptional circumstances in the case which would compel this Court to invoke the power under Section 482 Cr.P.C and to pass an order for releasing the vehicle to the interim custody of the petitioner. 9. Learned counsel for the petitioner cited the decision of the Madhya Pradesh High Court in **Manoj Kumar Pandey v. State of M.P : 2019 SCC OnLine MP 2315** in support of his contention that interim custody of a vehicle which has been seized under the provisions of the Act can be released to a proper party. The aforesaid decision was rendered by the Madhya Pradesh High Court in a revision petition filed against an order passed by a Special Judge rejecting an application filed under Section 451/457 Cr.P.C for granting interim custody of the vehicle. The aforesaid decision of the Madhya Pradesh High Court cannot be relied upon by me in the light of the dictum laid down by the Division Bench of this Court in **Shajahan** (supra). 10. Learned counsel for the petitioner has invited the attention of this Court to the directions given by the Apex Court in **Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638)** regarding release of vehicles involved in crimes to appropriate persons. In **Shajahan** (supra), the Division Bench of this Court has taken note of the above decision. The decision in **Shajahan** (supra) is binding on me. **Crl.MC.No.1580 OF 2020(F)** **7** 11. In the aforesaid circumstances, the petition is liable to be dismissed. ## Consequently, the petition is dismissed. **Sd/-R. NARAYANA PISHARADI JUDGE** **lsn** **Crl.MC.No.1580 OF 2020(F)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO.25/2020 OF PERUVANTHANAM POLICE STATION DATED 22.01.2020.** **ANNEXURE A2 A TRUE COPY OF THE TAX/VEHICLE INVOICE DATED 20.01.2020.** **ANNEXURE A3 A TRUE COPY OF THE TEMPORARY CERTIFICATE OF REGISTRATION WITH MARK KL 2020-T/R 6639E.** **ANNEXURE A4 A TRUE COPY OF THE SEARCH AND SEIZURE MAHAZAR DATED 22.01.2020 IN CR.NO. 25/2020 OF PERUVANTHANAM POLICE STATION, ANNEXURE A5 A TRUE COPY OF THE ORDER IN CMP NO.36/2020 IN CR. NO.25/2020 DATED 29.01.2020.** **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**