Bhavi vs State Of Kerala
2021 Latest Caselaw 20661 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MRS. JUSTICE MARY JOSEPH
   TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                       WP(C) NO. 586 OF 2021
PETITIONER:


BHAVI,
AGED 40 YEARS,
S/O. BALAN, KOOTTUNGAL HOUSE, POOTHANOOR, POLPAKKARA, KALADY
VILLAGE, EDAPPAL, POLAPAKARA, MALAPPURAM DISTRICT-679 676.


BY ADV SMT.K.NANDINI


RESPONDENTS:


1 STATE OF KERALA
  REPRESENTED BY THE SECRETARY TO GOVERNMENT,
  HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
  THIRUVANANTHAPURAM-695 001.

2 THE SUB INSPECTOR OF POLICE,
  GURUVAYOOR TEMPLE POLICE STATION, RING ROAD,
  NEAR GURUVAYOOR TEMPLE,
  GURUVAYOOR, THRISSUR DISTRICT-680 101.

3 THE DISTRICT LEVEL DRUGS DISPOSAL (NDPS) COMMITTEE,
  THRISSUR REPRESENTED BY DISTRICT POLICE CHIEF, AYYANTHOLE,
  THRISSUR-680 003.

4 AKBAR
  S/O. MR. IBRAHIM, KARUVEETTIL, NHAMANGAD P.O.,
  VADAKKEKKAD VILLAGE,
  CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN-679 563


  BY PUBLIC PROSECUTOR SRI M.P.PRASANTH


THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(c) No.586 of 2021

                                     2

                               JUDGMENT

Dated this the 5th day of October, 2021

This Writ Petition is filed under Article 226 of the Constitution of

India seeking for the following reliefs:-

"i) issue a writ of mandamus or such other appropriate writ, order or direction, directing the 3rd respondent to consider the Ext.P3 petition dated 4/1/2021 filed u/s.52A of NDPS Act pass appropriate orders granting an opportunity to the petitioner for hearing.

ii) direct the 3rd respondent to keep the vehicle KL-54L-6038, Nissan Datsun involved in Crime No.620/2020 at the 2nd respondent Police Station in the safe custody till the disposal of the Ext.P3 pending before the 3rd respondent."

iii) to pass such other orders or directions this Honourable Court may deem fit and proper to grant in the facts and circumstances of the case."

2. The writ petitioner is the registered owner of a Nissan

Datsun GO (2019 Model) vehicle bearing Registration Number KL-54L-

6038. According to him he has entered into an agreement for sale of

the vehicle with the 4th respondent on an undertaking by him that the W.P.(c) No.586 of 2021

installments towards the loan taken from Canara bank while

purchasing the vehicle would be repaid by him. It is further agreed

that on closure of the loan, the vehicle will also be registered in the

name of the 4th respondent.

3. On 13.02.2020, the vehicle was taken by the 4 th

respondent. After paying some installments as agreed he defaulted

the repayments. Therefore, the petitioner himself remained as the

owner of the vehicle. In the meantime, a crime was registered as

Crime No.620/2020 by the 2nd respondent, and the same was

intimated to the petitioner. It was learnt that the vehicle was used for

transportation of 200 gms of Ganja. Proceedings under Section 52-A

of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short 'the NDPS Act') was also initiated.

4. The petitioner had filed an application before the Judicial

First Class Magistrate Court, Chavakkad under Section 451 of the Code

of Criminal Procedure (for short 'the Cr.P.C.') for getting interim

custody of the vehicle, but it was dismissed for the reason that the

court is not empowered to exercise jurisdiction under Section 451

Cr.P.C. Thereafter an application was moved by him under Section

52-A before the 3rd respondent. The grievance of the petitioner is that W.P.(c) No.586 of 2021

the 3rd respondent had refused to accept the application stating that

the vehicle is proposed to be put in auction. Therefore, this Court is

approached seeking for a direction to the 3 rd respondent to consider

the application filed, copy of which is appended to the petition on hand

as Ext.P3 and to pass appropriate orders therein after granting him

reasonable opportunity of being heard.

5. Since the petitioner has submitted that he has already

moved an application as Ext.P3 before the 3 rd respondent, in view of

Smart Logistics (M/s.) Kozhikode v. State of Kerala and Others [2020

(5) KHC 139] the petitioner is entitled to get an opportunity of being

heard before the 3rd respondent.

The writ petition is disposed of with a direction to the 3 rd

respondent to consider Ext.P3 application after granting reasonable

opportunity of being heard to the petitioner and pass appropriate

orders within a period of three weeks' from this day.

Sd/-

MARY JOSEPH JUDGE

MJL W.P.(c) No.586 of 2021

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1: TRUE COPY OF THE CONTRACT DATED 13.2.2020 BETWEEN THE 4TH RESPONDENT AND PETITIONER.

EXHIBIT P2: TRUE COPY OF THE ORDER DATED 16.11.2020 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD IN CMP NO.3911/2020.

EXHIBIT P3: TRUE COPY OF THE PETITION UNDER S.52A OF NDPS ACT PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 4.1.2021.

EXHIBIT P4: TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD IN C.M.P. NO.3911/2020.

RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P A TO JUDGE