Tomy Abraham v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945** **CRL.MC NO. 8367 OF 2023** ## **PETITIONER/PETITIONER/R.C OWNER:** TOMY ABRAHAM AGED 60 YEARS S/O ABRAHAM, SRAMPICKAL HOUSE, PALA P.O, KIZHATHADIYOOR KARA, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686577 BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ## **RESPONDENT/COUNTER PETITIONER/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV. SRI.HRITCWICK C.S., PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.8367 of 2023 2 **P.V.KUNHIKRISHNAN, J. -----------------------------Crl.M.C.No.8367 of 2023 ---------------------------------------------Dated this the 13[th] day of October, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed to quash Annexure-III order by which an application submitted by the petitioner under Section 451 of the Cr.P.C for the release of a Honda-Jazz/2B MT 1- VTECBS4 bearing Reg.No.KL-30-G-1071 was dismissed. The above vehicle is involved in Crime No.24/2023 of Excise Range Office, Pala. The case was registered alleging offences punishable under Sections 20(b)(ii)(A), 29 and 60(3) of the NDPS Act. The vehicle was seized in connection with the above case. The learned Magistrate dismissed the Crl.M.C.No.8367 of 2023 3 application mainly for the reason that the NDPS Act prescribes the mode of disposal of the article and the vehicle seized and hence the Magistrate has no jurisdiction to entertain the same. Aggrieved by that order, this Criminal Miscellaneous Case is filed. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 3. This Court in **Shanil v. State of Kerala** [2023 (2) KHC 88] considered the issue after referring to the decision of the Division Bench of this Court in **Shajahan v. Inspector of Excise and Others** [2019 (4) KLT 507]. The relevant portion of the above 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 will be applicable when a property, which includes seized vehicles, is produced before a criminal court during Crl.M.C.No.8367 of 2023 4 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.52Aof 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 S.60(3), is also an aspect which the jurisdictional court can consider. Crl.M.C.No.8367 of 2023 5 In the result, the Crl.M.Cs and writ petitions, except W.P.(Crl) No.1189 of 2022, are disposed of permitting the petitioners to submit applications under S.457 Cr.P.C, seeking interim custody of the vehicles. On such applications being filed, the Special Courts and jurisdictional Magistrate courts, as the case may be, shall consider the applications on merits and pass reasoned orders thereon, de hors dismissal of earlier applications. 4. In **Wilson C.C. v. State of Kerala** [2022 (7) KHC 450] this Court held that, when 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 the vehicle. In such cases, it cannot be said that the vehicle has been used as conveyance and the vehicle is a subject matter of confiscation. 5. In **Sainaba v. State of Kerala** [2022 (7) Crl.M.C.No.8367 of 2023 6 KHC 273], the Apex Court was considering a similar application filed for release of a vehicle. In that case also, the contraband was seized from the bag of the first accused in that case who was travelling in the vehicle. The Apex Court released the vehicle to the registered owner in that case. In the light of the dictum laid down by this Court and the Apex Court, I think the matter is to be reconsidered by the learned Magistrate. To facilitate the learned Magistrate to reconsider the matter, the impugned order can be set aside. Therefore, this Criminal Miscellaneous case is allowed in the following manner: i) Annexure-III order is set aside. ii) The Judicial First Class Magistrate Court - I, Pala is directed to reconsider C.M.P.No.1638/2023 in Crime No.24/2023 of Crl.M.C.No.8367 of 2023 7 Pala Excise Range office in the light of the dictum laid down by this Court and the Apex Court in **Shanil** 's case (supra), **Wilson** ' case (supra) and in **Sainaba** 's case (supra). Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM Crl.M.C.No.8367 of 2023 8 ## **APPENDIX OF CRL.MC 8367/2023** PETITIONER ANNEXURES ANNEXURE-I A TRUE COP OF THE CRIME AND OCCURRENCE REPORT IN CRIME NO.24/2023 DATED 16/06/2023 ANNEXURE-II A TRUE COPY OF THE INVENTORY OF THE SEIZED VEHICLE DATED 10/7/2023 ANNEXURE-III TRUE COPY OF THAT ORDER DATED 22/06/2023 IN CRL.MP NO: 1638/2023 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE