Chandrika P vs The State Of Kerala
2023 Latest Caselaw 1145 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                       WP(CRL.) NO. 1157 OF 2022
PETITIONER:

          CHANDRIKA P.,
          AGED 64 YEARS, W/O LATE RAMAN, MELEPURATH HOUSE,
          VADANAMKURSSI P.O, ONGALLOR, PALAKAD DISTRICT,
          PIN: 679 121.
          BY ADVS.
          O.V.MANIPRASAD
          JOSE ANTONY
          SRUTHYMON P.R


RESPONDENTS:

    1     THE STATE OF KERALA,
          REPRESENTED BY THE ADDL. CHIEF SECRETARY TO GOVERNMENT,
          HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN: 695 001
    2     THE THRISSUR DISTRICT NARCOTIC DRUGS AND PSYCHOTROPIC
          SUBSTANCES AND CONVEYANCE DISPOSAL COMMITTEE,
          REPRESENTED BY ITS CONVENER,
          THE ASSISTANT COMMISSIONER OF POLICE,
          DISTRICT CRIME BRANCH, THRISSUR, PIN-680 001
    3     THE SUB. INSPECTOR OF POLICE, VIYYOOR POLICE STATION,
          VIYYOOR, THRISSUR DISTRICT, PIN-680 010.


          PP-SRI.G.SUDHEER



     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(CRL) No. 1157 of 2022
                                      2


                              JUDGMENT

Dated this the 18th day of January, 2023

This writ petition (Criminal) has been filed under

Article 226 of the Constitution of India, seeking the

following reliefs:

"i) issue a writ of mandamus, order or direction directing the 2nd respondent to release the Maruti Swift Car having Registration No. KL-51-J-7745 to the petitioner.

ii) To declare that the seizure of Maruti Swift Car having Registration No. KL-51-J-7745 of the petitioner by the 3rd respondent as per Exhibit P4 seizure mahazar is illegal and the car is not liable to be confiscated under the provisions of the Narcotic Drugs & Psychotropic Substances Act and not liable for disposal as per Exhibit P7 notification.

iii) Issue a writ of mandamus, order or direction directing 2nd respondent to pass appropriate orders on P8 application releasing the Maruti Swift Car having Registration No. KL-51-J- 7745 to the petitioner.

iv) issue an order dispensing with the English translation of vernacular documents produced in the above Writ Petition, in the interest justice.

And

v) issue such other writ, order or direction as this W.P(CRL) No. 1157 of 2022

Hon'ble Court may deem fit and proper to grant in the circumstances of the case."

2. Heard the learned counsel for the petitioner as

well as the learned Public Prosecutor.

3. The petitioner, who is aggrieved by dismissal of

Crl.M.P. No. 1985 of 2021 in S.C. No.302 of 2021 as per the

order dated 01.10.2021 on the files of the First Additional

Sessions Judge, Thrissur (Special Court under the NDPS Act),

denying interim custody of the car bearing registration No.

KL-51-J-7745 involved in Crime No. 983 of 2020 of Viyyur

Police Station, alleging commission of offences punishable

under Sections 20b(ii)(A) and 22(b) of the Narcotic Drugs

and Psychotropic Substances Act (hereinafter referred as

'NDPS Act' for short), has approached this Court challenging

the same.

4. The learned counsel for the petitioner would argue

that, dismissal of the petition by the Special Court is

incorrect and in the decision reported in Wilson C.C. Vs.

State of Kerala (2022 LiveLaw (Ker) 627) wherein this

Court considered a case where the recovery was from the

body of the driver of a car and held as under:

"It is true that, in the decision reported in W.P(CRL) No. 1157 of 2022

Shajahan v/s Inspector of Excise, Excise Enforcement & Anti Narcotic Special Squad Malappuram & Others (2019 (5) KHC 401) this Court held that, if the vehicle is a subject matter of confiscation, the power of the Court to consider a claim under Section 451 of Cr.P.C stands denuded. However, ratio would apply to a case where, there should be materials to hold that, the vehicle has been used as a conveyance to carry the contraband. When a person who is driving a vehicle alone, found to be on suspicious circumstances, when searched, if contraband was taken from his body after complying the mandate under Section 50, it is not safe to hold that, the vehicle also has been used as conveyance so as to make the same as a subject matter of confiscation. In such circumstances, 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. Viewing so, it cannot be said that, in the present case, the vehicle has been used as conveyance and the vehicle is a subject matter of confiscation."

5. The learned counsel for the petitioner argued

further that, the said ratio would squarely apply to the

facts of this case since the contraband was seized from W.P(CRL) No. 1157 of 2022

the body of the accused on body search in compliance of

Section 50 of the NDPS Act.

6. The learned Public Prosecutor also not disputed

the said arguments since the recovery mahazar in this

crime would substantiate the said contention. However, it

is pointed out by the learned Public Prosecutor that, as

early on 04.06.2022, the Drug Disposal Committee

rejected the application for release of the vehicle as per

the resolution No.5.

7. Since, the facts of the case is in tune with the

ratio in Wilson's case (supra), the said rejection will have

no binding effect to release the vehicle on interim

custody. Therefore, the ratio of the said decision would

apply to the facts of this case. In view of the above legal

position, the learned Special Court went wrong in

dismissing the application. Therefore, Ext.P6 order stands

set aside and Crl.M.P. No. 1985 of 2022 in S.C. NO. 302 of

2021 is remanded back to the files of Special Court under

the NDPS Act (First Additional Sessions Judge, Thrissur). W.P(CRL) No. 1157 of 2022

8. There shall be a direction to the learned Special

Court Judge, to consider the petition afresh in tune with

the ratio of Wilson's case (supra) and pass orders on

merits, within a period of ten days from the date of

receipt of copy of this judgment.

Accordingly, this writ petition (criminal) stands

allowed as above.

Sd/-

A. BADHARUDEEN SK JUDGE W.P(CRL) No. 1157 of 2022

APPENDIX OF WP(CRL.) 1157/2022

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE STANDING DISABILITY ASSESSMENT BOARD CERTIFICATE DATED 06.08.2014.

EXHIBIT P2 A TRUE COPY OF THE VEHICLE PARTICULARS REGARDING THE CAR HAVING REGISTRATION NO. KL-51-J- 7745.

EXHIBIT P3 A TRUE COPY OF THE F.I.R IN CRIME NO.

983/2020 OF VIYYOOR POLICE STATION. EXHIBIT P4 A TRUE COPY OF THE SEIZURE MAHAZAR DATED 22.08.2020 PREPARED BY THE 3RD RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE FINAL REPORT DATED 08.02.2021 IN F.I.R NO.983/2020 OF VIYYOOR POLICE STATION.

EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 01.10.2021 IN CRL.M.P NO: 1985/2021 IN SC NO. 302/2021 OF THE 1ST ADDITIONAL SESSIONS COURT, THRISSUR. EXHIBIT P7 A TRUE COPY OF THE NOTIFICATION NO. GSR 38(E) DATED 16.01.2015.

EXHIBIT P8 A TRUE COPY OF THE PETITION DATED 28.04.2022 BEFORE THE 2ND RESPONDENT.

RESPONDENTS' EXHIBITS: NIL