UFSAL RAHIMAN v. State of Kerala and Chairman, Drug Disposal Committee under NDPS Act, Kannur

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE23[RD]DAYOFMAY2023/2NDJYAISHTA,1945 CRL.MCNO.3588OF2023 ``` ``` CRL.M.P.NO.227/2023ONTHEFILEOFTHESPECIALJUDGE(NDPS ACTCASES)VATAKARA CRIMENO.276/2023OFKANNURTOWNPOLICESTATION ``` ## **`PETITIONER/PETITIONERS :`** ``` UFSALRAHIMAN AGED42YEARS S/OYOUSAF,RASHEEDAMANZIL, KOLLARATHIKKAL,KATTAMPALLYPOST, – CHIRAKKAL,KANNURDISTRICT.,PIN670011 ``` ``` BYADVP.K.RAVISANKAR ``` ## **`RESPONDENT/RESPONDENTS:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, – HIGHCOURTOFKERALA,ERNAKULAM,PIN682031 ``` ``` 2CHAIRMAN DRUGDISPOSALCOMMITTEEUNDERNDPSACT, OFFICEOFCOMMISSIONEROFPOLICE, – KANNUR,PIN670001 SRIPRASHANTHMP,PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 23.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.3588 of 2023 2 ## **ORDER** Being aggrieved by the order dated 04.04.2023 in Crl.M.P. No.227/2023 on the file of the Court of the Special Judge (NDPS Act cases), Vatakara, by which the application filed by the petitioner under Section 451 of the Cr.P.C. for getting interim custody of the car bearing registration No.KL-13-AQ-0838 was dismissed, the petitioner has approached this Court with this petition invoking the powers of this Court under Section 482 of the Code of Criminal Procedure. 2. It is the case of the petitioner that he is the registered owner of the Maruti Ciaz Motor Car bearing registration No.KL-13-AQ-0838. On 23.02.2023, the Sub Inspector of Police, Kannur Town Police Station, along with his police party, were on patrol duty and when they reached near the Thalap Sundareswara temple, they encountered two persons standing by the side of the road. Finding something amiss by their demeanour and appearance, when the officers zeroed in, the accused tried to flee in their car. The car was intercepted by the police and a search was conducted in accordance with the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985. It is alleged that accused 1 and 2 were found in Crl.M.C No.3588 of 2023 3 possession of 34.89 grams of MDMA, which falls within the category of commercial quantity. On search of the vehicle, about 0.71 grams of ganja was found along with certain glass pipes and utensils used for smoking ganja. The vehicle and the contraband were seized and a crime was registered. 3. The petitioner approached the Special Judge and filed an application seeking interim custody of the vehicle. The learned Special Judge, after considering the law laid down by this Court in **Shanil v. State of Kerala** [2023 (1) KLT 371], came to the conclusion that there were prima facie materials to show that the vehicle was used for transporting the contraband and the vehicle having been used as a conveyance, the request for interim custody was rejected. 4. Sri. Ravisankar P.K., the learned counsel for the petitioner, submitted that the order passed by the learned Special Judge cannot be sustained. The learned counsel would refer to the law laid down by the learned Single Judge in **M/S.Smart Logistics v. State Of Kerala** [2020 (5) KLT 298] and it is submitted that a conveyance would be liable for confiscation only when it is “used in carrying” any narcotic drug or psychotropic substance or controlled substance. Relying on Paragraph No. Crl.M.C No.3588 of 2023 4 39 of the judgment, it is submitted that in those cases where, there is an accidental presence of contraband in the vehicle driven by a paid driver and materials suggests that it was without the knowledge of the owner of the vehicle that the driver had committed the above act, it would not necessarily mean that the vehicle was used in carrying the contraband substance. It is further submitted that this Court, in **Shanil v. State of Kerala** [2023 (1) KLT 371], after relying on the law laid down in **Sainaba Vs. State of Kerala** [2022 (7) KHC 273] had occasion to hold that there is no embargo in considering the application under Sections 451 and 457 in seizures effected under the NDPS Act. According to the learned counsel, in the peculiar facts and circumstances of the case and reckoning that the quantity of narcotics seized from the car was small, the Special Judge ought to have favorably considered the application. 5. The submissions of the learned counsel appearing for the petitioner were vehemently controverted by the learned Public Prosecutor. The learned Public Prosecutor would initially refer to Section 52A of the NDPS Act and also the law laid down by the Division Bench in **Shajahan v. Inspector of Excise and Ors.** [2019 (4) KLT 507] and it is submitted that in those cases wherein the vehicles were used for conveying narcotic drug Crl.M.C No.3588 of 2023 5 or psychotropic substances or controlled substances, the provisions of Section 52A would apply, and it is for the petitioner to approach the drug disposal committee constituted under the Act. 6. I have considered the submissions advanced and have carefully gone through the records. 7. The learned Single Judge in **Shanil** (supra), after exhaustively considering all the statutory provisions, has held that the jurisdictional court have the power to grant interim custody of seized vehicles under Section 457 of the Cr.P.C., irrespective of the procedure for disposal stipulated in Section 52A of the Act. The learned Judge noted that although a Division Bench of this Court in **Shajahan** (supra) has held that the Magistrates are denuded of the power to grant interim custody under Section 451 of the Cr.P.C., opined that the above judgment has been impliedly reversed by the Apex Court in **Synaba v. State of Kerala** [2022 (6) KLT OnLine 1174 (SC)]. It would be pertinent to note that **Shanil** (supra) was rendered by this Court when it was brought to the notice of the learned Single Judge that applications for interim custody of vehicles seized under the NDPS Act were being rejected following the law laid down in **Shajahan** (supra) and the parties therein were directed to approach the Drug Disposal Committee. Crl.M.C No.3588 of 2023 6 In paragraph No.13, the learned Single Judge refused to delve into the question whether the seized vehicles could be termed as “conveyance” used in carrying contraband and it was observed that it was for the jurisdictional court to consider the application on merits and pass reasoned orders thereon. In **Smart Logistics** (supra), this Court held that a conveyance shall become liable to confiscation only when it is “ used in carrying” any narcotic drug or psychotropic substance or controlled substance. If a conveyance is seized under the Act, it has necessarily to be disposed of under Section 52A of the Act. Only a conveyance which is “used in carrying” any narcotic drug or psychotropic substance is liable to be disposed of by the drug disposal committee under Section 52A of the Act. 8. In the case on hand, admittedly from the glove box of the car a plastic cover containing Ganja and weighing about 0.71 gms along with a glass tube and nozzle was found in addition to 34.89 gms of MDMA from the body of the person found inside the car. The learned Special Judge has considered the application on merits in the light of the law laid down in **Shanil** (supra) and he has come to the conclusion that the vehicle was used as a conveyance by the 1st accused who is a relative of the petitioner. It was observed while rejecting the application that it is for the petitioner to Crl.M.C No.3588 of 2023 7 prove that he has no knowledge regarding the use of his vehicle as a conveyance. Having considered the matter in all its perspectives, I find no reason to interfere with the order. Reserving the right of the petitioner to approach the Drug Disposal Committee for appropriate orders, this Crl.M.C is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.3588 of 2023 8 ## **`APPENDIX OF CRL.MC 3588/2023`** ``` PETITIONERANNEXURES: ``` ``` AnnexureA ``` ``` TRUECOPYOFTHEF.I.R.INCRIMENO.276OF 2023OFKANNURTOWNPOLICESTATION ``` ``` AnnexureB ``` ``` CERTIFIEDCOPYOFTHEORDERDATED4-4-2023IN CRL.M.P.NO.227OF2023ONTHEFILEOF COURTOFTHESPECIALJUDGE(N.D.P.SACT CASES),VATAKARA ```