Baiju Prabha vs State Of Kerala
2023 Latest Caselaw 3167 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
     THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                        WP(CRL.) NO. 297 OF 2023
PETITIONER/S:

          BAIJU PRABHA
          AGED 41 YEARS
          S/O. PRABHAKARAN, ENNAKKAPPALLIL HOUSE, ULLALA
          THALAYAZHAM P.O, VAIKOM KOTTAYAM, PIN - 686607
          BY ADVS.
          P.K.RAKESH KUMAR
          K.S.MADHUSOODANAN
          M.M.VINOD KUMAR
          K.S.MIZVER
          M.J.KIRANKUMAR


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
          PIN - 682031
    2     STATION HOUSE OFFICER
          VADAKKENCHERY POLICE STATION, VADAKKENCHERY BAZAR ROAD,
          ALATHUR, PALAKKAD DISTRICT, PIN - 678683
    3     THE CHAIRMAN
          NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCE AND
          CONVEYANCE DISPOSAL COMMITTEE, PALAKKAD, CIVIL STATION,
          PIN - 678001
OTHER PRESENT:

          PP SANGEETHARAJ N.R.


     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(CRL.) NO. 297 OF 2023
                                    2

                                JUDGMENT

Dated this the 23rd day of March, 2023

The petitioner's car bearing Registration No. KL-17-H-

9153 was seized in connection with Crime No. 1051/2022 of

Vadakkencherry Police Station registered for the offence

punishable under Section 22(a) r/w Section 8 of the Narcotic

Drugs and Psychotropic Substances Act ('the NDPS Act' for

short). The prosecution allegation is that, while the police

party was conducting routine vehicle checking on 07.11.2022,

by about 5.30 p.m., the petitioner's car and the two persons

travelling in the car were searched and 01.470gm

AMFETAMINE recovered from the pocket of one of the

persons. Thereupon the contraband and vehicle were seized

and accused. The petitioner is not an accused in the crime.

Although, petitioner approached the Judicial First Class

Magistrate Court-I, Alathur, seeking interim custody of his

vehicle, an application under Section 457 Cr.P.C was

dismissed as per Ext.P4 order on the reason that the vehicle

has been already produced before the Drug Disposal

Committee. Aggrieved, this W.P.(Crl.) is filed. WP(CRL.) NO. 297 OF 2023

2. Learned Counsel for the petitioner submitted that the

vehicle was borrowed by a friend, who in turn had given it to

the accused. The contraband was recovered from the pocket

of the accused and not from the vehicle. Hence the vehicle

cannot be described as 'conveyance' for the purpose of

Section 52 A of the NDPS Act.

3. This Court in Shanil and Ors. v. State of Kerala

and Ors. (2023 SCC OnLine Ker 1023) has held

Shajahan v. Inspector of Excise and Ors. [2019 (5) KHC

401) to have been impliedly reversed by the decision of the

Supreme Court in Sainaba v. State of Kerala (2022 (7)

KHC (SC)). This Court also held applications seeking

interim custody under Section 457 Cr.P.C. to be maintainable

even if the inventory of the vehicle is certified and forwarded

to the Drug Disposal Committee. As such, the reason for

rejecting the petitioner's application is not sustainable.

Hence, the writ petition is disposed of, following the

judgment in Shanil and Ors (supra), permitting the

petitioner to file a petition under Section 457 Cr.P.C. before

the jurisdictional court within six weeks. If the petition is filed WP(CRL.) NO. 297 OF 2023

within the time granted, the court shall consider the petition

on merits, de hors dismissal of the Section 457 petition

earlier. While effecting such consideration, the court shall

also take into account the petitioner's contention that, since

the contraband was seized from the body of the 1 st accused,

the vehicle cannot be termed as 'conveyance' so as to attract

Section 52A of the NDPS Act, as held by this court Wilson

C.C v. State of Kerala [2022(7) KHC 450]. Till the petition

under Section 457 is decided, the 3 rd respondent shall not sell

the petitioner's vehicle bearing Registration No. KL-17-H-

9153, if not already sold.

Ordered accordingly.

Sd/-

V.G ARUN JUDGE

SJ WP(CRL.) NO. 297 OF 2023

APPENDIX OF WP(CRL.) 297/2023

PETITIONER EXHIBITS Exhibit1 TRUE COPY OF THE RC DETAILS OF KL-17- H-

Exhibit P-2 TRUE COPY OF THE FIR NO:1051/2022 DATED 7-11-2022 OF VADAKKENCHERY POLICE STATION Exhibit P-3 TRUE COPY OF THE SEIZURE MAHAZAR DATED 7.11.22 Exhibit P-4 CERTIFIED COPY OF THE ORDER OF THE LEARNED JFCM-1, ALATHUR IN CRL MP NO:

3881/22 DATED 23.12.22