Kerala High Court
Lukose P Chacko vs State Of Kerala on 12 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
CRL.MC NO. 3082 OF 2023
AGAINST THE ORDER/JUDGMENT ST 3111/2021 OF JUDICIAL MAGISTRATE
OF FIRST CLASS ,VAIKOM
PETITIONER/PETITIONER
LUKOSE P CHACKO
AGED 58 YEARS
S/O CHACKO, PARALAYIL HOUSE, KALLARA SOUTH P.O,
KOTTAYAM DISTRICT,, PIN - 686611
BY ADVS.
V.P.MOHAMMED NIYAZ
M.P.MUHAMMAD FAZIL
SHEREEF J.
RESPONDENT/RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:
PP MAYA ANTHARJANAM
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12.04.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C No.3082 of 2023
2
ORDER
Dated this the 12th day of April, 2023
The petitioner is the owner of a vehicle bearing
registration No.KL-36-D-1579, seized in connection with
Crime No.450 of 2021 of Vaikom Police Station. The crime
was registered on the allegation that 36 gms of Ganja was
seized from the dash board of the car while the petitioner's
son was driving the vehicle. The offence alleged is under
Section 20(b)(ii)A and 25 of the Narcotic Drugs and
Psychotropic Substances Act.
2. The accused pleaded guilty and was imposed with
a fine of Rs.7000/-. The petitioner initially approached the
Magistrate with a petition under Section 451 Cr.P.C.
seeking interim custody of the vehicle, which the trial court
dismissed. After the criminal proceedings have ended by
conviction of the accused, the petitioner moved another
petition under Section 452 Cr.P.C, which was also
dismissed by the trial court as per Annexure A6 order.
3. Heard, learned counsel for the petitioner and the
Crl.M.C No.3082 of 2023
learned Public Prosecutor.
4. A perusal of the impugned order shows that the
trial court has placed reliance on the decisions in Shajahan
v. Inspector of Excise [2019 (4) KLT 507] and in Smart
Logistic (M/s.) Kozhikode v. State of Kerala and others
[2020 (5) KHC 139] to hold that once the proceedings
under Section 52A of the NDPS Act are resorted to, the
courts are deprived of power to grant custody of vehicles
involved in NDPS crimes. The above decision is no longer
good law in the light of the Apex Court decision in Sainaba
v. State of Kerala [2022 (7) KHC (SC). After taking into account
the decision in Sainaba and the relevant provisions of the
NDPS Act, including Sections 52A and 60(3), this Court in
Shanil and others v. State of Kerala and others.(2023
SCC Online Ker 1023) has held that, merely because
proceedings under Section 52A is resorted to and
inventory of the seized vehicle prepared, certified and
forwarded to the Drug Disposal Committee, the courts are
not deprived of the power to grant custody of the vehicle to
Crl.M.C No.3082 of 2023
its legitimate owners. The law as on date, being as
mentioned above, the reasoning adopted by the trial court
is unsustainable. As the petitioner is seeking permanent
custody, the applicable provisions would be Section 60(3)
of the NDPS Act. Once the petitioner satisfies the condition
therein, the court can release the vehicle in exercise of the
power under Section 452 Cr.P.C.
In the result, the Crl.M.C is allowed. Annexure A6
order is set aside. The petitioner is permitted to file a fresh
petition under Section 452 Cr.P.C read with Section 60(3)
of the NDPS Act within two weeks of receipt of copy of this
judgment. If such petition is filed, the learned Magistrate
shall pass orders thereon within a further period of two
weeks.
Sd/-
V.G.ARUN, JUDGE
smm
Crl.M.C No.3082 of 2023
APPENDIX OF CRL.MC 3082/2023
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE FINAL REPORT IN S.T.
NO.3111/2021 ON THE FILE OF JUDICIAL
MAGISTRATE OF THE FIRST CLASS-I,
VAIKOM WHICH AROSE FROM CRIME
NO.450/2021 OF VAIKOM POLICE STATION,
KOTTAYAM DISTRICT
Annexure A2 TRUE COPY OF THE RELEVANT PAGES OF
THE PETITIONER'S PASSPORT BEARING
NO.T3919955 ISSUED ON 7.3.2019
SHOWING HE WAS ABROAD AT THE TIME OF
THE ALLEGED CRIME
Annexure A3 TRUE COPY OF THE ORDER DATED 08-07-
2021 IN C.M.P. NO.837/21 IN CRIME
NO.450/21 OF THE HON'BLE JUDICIAL
FIRST CLASS MAGISTRATE COURT-I,
VAIKOM
Annexure A4 TRUE COPY OF THE DAILY CASE STATUS IN
S.T. NO.3111/2021 DATED 03-11-2022 OF
THE COURT OF JUDICIAL FIRST CLASS
MAGISTRATE-I, VAIKOM DOWNLOADED FROM
E COURT SERVICES
Annexure A5 TRUE COPY OF THE C.M.P. NO.200/2023
IN S.T. NO.3111/2021ON THE FILES OF
THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, VAIKOM DATED NIL
Annexure A6 CERTIFIED COPY OF THE ORDER DATED 15-
02-2023 IN C.M.P NO.200/2023 IN S.T.
NO.3111/2021 OF THE HON'BLE JUDICIAL
FIRST CLASS MAGISTRATE COURT-I,
VAIKOM
