Muhammed Suhail K vs State Of Kerala
2023 Latest Caselaw 916 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
                       WP(CRL.) NO. 1223 OF 2022
AGAINST THE ORDER IN CMP 3456/2022 OF JUDICIAL MAGISTRATE OF FIRST
                           CLASS, THALASSERY
PETITIONER:

          MUHAMMED SUHAIL K
          AGED 29 YEARS
          S/O SULAIMAN K, KOOLIYODAN HOUSE,
          VELLARANGAL, VAYAPPARADI, MANJERI P.O.,
          MALAPPURAM DISTRICT, PIN - 676121
          BY ADVS.
          P.M.MANOJ
          S.RUSSEL
          V.R.ARUN
          P.ANTO THOMAS
          HAMZATH ALI V.K.


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, PIN - 682031
    2     SUB INSPECTOR OF POLICE
          DHARMADOM POLICE STATION,
          MALAPPURAM DISTRICT,
          REP. BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031
          BY ADV PUBLIC PROSECUTOR
          SRI.G.SUDHEER, PUBLIC PROSECUTOR


     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(CRL.) NO. 1223 OF 2022
                                     2



                          JUDGMENT

Dated this the 17th day of January, 2023

This writ petition (criminal) has been filed under Article

226 of the Constitution of India, challenging Ext.P3 order, viz.,

order dated 23.11.2022 in CMP No.3456/2022.

2. The prayers in this writ petition are as under:

"a. Call for the records leading to Ext P3 order and issue a writ of certiorari or any other appropriate writ order or direction quashing Ext P3 order passed by the Judicial First Class Magistrate Court, Thalassery.

b. Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the Judicial First Class Magistrate Court, Thalassery to release the car bearing registration No.KL-07-BW-1983 to the Petitioner on self-bond."

3. Heard the learned counsel for the petitioner as well

as the learned Public Prosecutor appearing for the State. WP(CRL.) NO. 1223 OF 2022

4. In this case, the prosecution case is that the vehicle

bearing registration No.KL-07-BW-1983 was used to commit

offence punishable under Section 20(b)(ii)(A) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereinafter

referred to as 'NDPS Act' for convenience) and the accused

as well as the vehicle were taken into custody. The petitioner

herein, who is the RC owner of the vehicle, filed a petition

under Section 457 of Cr.P.C. seeking interim custody of the

vehicle and the same was dismissed by the learned

Magistrate holding that, the vehicle was used for commission

of offence punishable under the provisions of the NDPS Act

and therefore, the interim custody could not be granted.

5. While assailing the said order, the learned counsel

for the petitioner placed decision of this Court reported in

Wilson C.C. v. State of Kerala [2022 LiveLaw (Ker) 627] :

[2022 (7) KHC 450], to contend that the facts of this case is

similar to the facts dealt in Wilson C.C.'s case (supra) and

therefore, applying the same ratio, vehicle herein also is liable WP(CRL.) NO. 1223 OF 2022

to be released.

6. In Wilson C.C.'s case (supra), 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 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 WP(CRL.) NO. 1223 OF 2022

conveyance and the vehicle is a subject matter of confiscation."

7. In view of the submission made by the learned

counsel for the petitioner that Wilson C.C.'s case (supra)

would squarely apply to the facts of this case, I am inclined to

set aside Ext.P3 order and remand the matter to the Judicial

First Class Magistrate Court, Thalassery.

Accordingly, the order impugned shall stand set aside

and the matter is remitted back to the Judicial First Class

Magistrate Court, Thalassery, for fresh consideration. The

learned Magistrate is directed to consider the petition filed by

the petitioner, afresh, following the ratio in Wilson C.C.'s case

(supra) and pass orders on the same on merits, within a

period of seven days from the date of receipt of a copy of this

judgment.

Sd/-

A. BADHARUDEEN JUDGE nkr WP(CRL.) NO. 1223 OF 2022

APPENDIX OF WP(CRL.) 1223/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 20/12/2012 ISSUED IN THE NAME OF THE PETITIONER BY RTO MALAPPURAM Exhibit P2 A TRUE COPY OF THE F.I.R. NO.564/2022 DATED 23/10/2022 OF DHARMADOM POLICE STATION Exhibit P3 A TRUE/CERTIFIED COPY OF THE ORDER IN CMP.NO.3456/2022 DATED 23/11/2022 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT; THALASSERY