Kerala High Court
Sameesh vs State Of Kerala on 5 September, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 5TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945
CRL.MC NO. 6236 OF 2023
PETITIONER/S:
SAMEESH
AGED 34 YEARS
S/O.VIJAYAN, ARACKAPARAMBIL, VALLAARPADAM,
ERNAKULAM, PIN - 682504
BY ADVS.
CHITHRA R.SHENOY
T.R.HARIKRISHNAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
OTHER PRESENT:
RENJITH T.R , PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
-2-
Crl.M.C No. 6236 of 2023
P.V.KUNHIKRISHNAN, J.
======================================================
Crl.M.C No. 6236 of 2023
=============================================================
Dated this the 5th day of September, 2023
ORDER
The petitioner is an autorickshaw driver who is arrayed as
accused in Crime No.1033 of 2023 of Mulavukad Police Station. The
above case is registered alleging offences punishable under Section
20(b)(ii)A of Narcotics and Psychotropic Substances Act.
The prosecution case is that on 28.06.2023, the Sub Inspector of
Police, Mulavukad Police Station found the auto rickshaw driven by
the petitioner through the container road and on inspection of the said
vehicle, found 5 grms of ganja kept inside the dash board of the said
vehicle. The petitioner was arrested with the contraband and the
vehicle was seized. Thereafter, the petitioner filed CMP No.5387 of
2023 before the Judicial First Class Magistrate Court - I, Ernakulam.
The said petition was dismissed on the ground that the Court is not
empowered to release the vehicle on interim custody based on the
dictum laid down by this Court in Wilson V. State of Kerala [2022
(7) KHC 450].
Crl.M.C No. 6236 of 2023
2. Heard the counsel for the petitioner and the Public
Prosecutor.
3. After hearing both sides, I am of the considered opinion
that the impugned order is to be set aside in the light of the dictum laid
down by this Court in Shanil v. State of Kerala [2023 (2) KHC 88].
After considering all the earlier decisions, this Court passed a detailed
order in the above case. It will be better to extract the relevant portion
of the above judgment here:
11. Although, in Shajahan(supra), this Court held the
Magistrates to be denuded of the power to grant interim
custody under Section 451 Cr.P.C, that decision is
impliedly reversed by the Supreme Court in Sainaba v State
of Kerala [2022 (7) KHC 273]. To summarise, in Sainaba v
State of Kerala and another [2022 KHC 917], a learned
Single Judge of this Court held that the Special Court is not
empowered to exercise jurisdiction under Section 451 to
release a vehicle involved in an offence under the NDPS
Act on interim custody. That order was reversed by the
Supreme Court in Sainaba v State of Kerala [2022 (7) KHC
273]. Being contextually relevant, paragraphs 5 to 8 of the
judgment is extracted hereunder;
"5. It has been opined by the High Court that the
Court is not empowered to exercise the
jurisdiction under Section 451 of the Code of
Crl.M.C No. 6236 of 2023
Criminal Procedure to release a vehicle involved
under NDPS Act in interim custody.
6. The appellant has urged inter alia that as per
Section 36-C read with Section 51 of the NDPS
Act, Criminal Procedure Code would be
applicable for proceedings by a Special Court
under NDPS Act and Section 451 has an inbuilt
provision to impose any specific condition on the
appellant while releasing the vehicle. The
appellant is undoubtedly the registered owner of
the vehicle but had not participated in the offence
as alleged by the prosecution nor had knowledge
of the alleged transaction.
7. Learned counsel seeks to rely on the judgment
of this Court in Sunderbhai Ambalal Desai v.
State of Gujarat - 2003 (2) KLT 1089 (SC) =
(2002) 10 SCC 283 opining that it is no use to
keep such seized vehicles at police station for a
long period and it is open to the Magistrate to
pass appropriate orders immediately by taking a
bond and a guarantee as well as security for
return of the said vehicle, if required at any point
of time.
8. On hearing learned counsel for parties and in
the conspectus of the facts and circumstances of
the case, and the legal provisions referred
aforesaid, we are of the view that this is an
appropriate case for release of the vehicle on
terms and conditions to be determined by the
Special Court."
Crl.M.C No. 6236 of 2023
A careful reading of the above paragraphs makes it clear
that the appeal was allowed and direction to release the
vehicle issued, after taking note of the legal provisions, viz,
Section 36C r/w 51 of the NDPS Act and Section 451
Cr.P.C. As such, there is an implied reversal of the dictum
in Shajahan (supra) by virtue of Article 141 of the
Constitution of India. I also take note of the judgment in
Pradeep B. v District Drug Disposal Committee and others
(WA No.1304/2022 of High Court of Kerala), wherein, a
Division Bench headed by the Chief Justice expressed the
opinion that Shajahan (supra) requires reconsideration and
directed a Full Bench to be constituted.
12. Having found the jurisdictional courts to be having the
power to grant interim custody, the ancillary question is
whether such power is to be exercised under Section 451 or
457 of the Code. Section 451 will be applicable when a
property, which includes seized vehicles, is produced
before a criminal court during inquiry or trial. As regards
conveyances seized in connection with offences under the
NDPS Act, Section 52A only provides for preparation of
inventory containing details of the conveyance relevant for
its identification and the making of an application to the
Magistrate for certifying the correctness of the inventory.
The seized vehicles are not produced before the Magistrate,
upon which alone an order for interim custody under
Section 451 can be issued. On the other hand, the power
under Section 457 can be exercised with respect to a
property, which is not produced before the court, but the
seizure of which is reported. The above discussion leads me
to the conclusion that the jurisdictional courts have the
power to grant interim custody under Section 457 Cr.P.C,
Crl.M.C No. 6236 of 2023
irrespective of the procedure for disposal stipulated in
Section 52A of the Act.
13. I refrain from delving into the question whether the
seized vehicles could be termed as 'conveyance' used in
carrying contraband, as it is for the jurisdictional court to
decide that aspect depending on the facts of each case. As
rightly pointed out by the learned Public Prosecutor, the
complicity or otherwise of the owner, stipulated in Section
60(3), is also an aspect which the jurisdictional court can
consider."
4. In the light of the above judgment, I am of the considered
opinion that the impugned order is to be set aside and the matter is to
be reconsidered by the learned Magistrate. I make it clear that the I
have not considered the matter on merit and the learned Magistrate
should reconsider the matter in the light of the principle laid down by
this Court in Shanil's case (supra).
Therefore, this Crl.M.C is disposed of in the following manner:
1. The order dated 06.07.2023 in CMP No.5387 of 2023 on
the file of the Judicial First Class Magistrate Court-I,
Ernakulam arising from Crime No.1033 of 2023 of
Mulavukad Police Station is set aside.
Crl.M.C No. 6236 of 2023
2. The Judicial First Class Magistrate Court-I, Ernakulam is
directed to reconsider CMP No.5387 of 2023, after giving an
opportunity of hearing to the petitioner, as expeditiously as
possible.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
Crl.M.C No. 6236 of 2023
APPENDIX OF CRL.MC 6236/2023
PETITIONER ANNEXURES
Annexure I THE TRUE COPY OF THE IN FIR 1033/2023
0F MULAVUKAD POLICE STATION
Annexure II TRUE COPY OF THE CMP NO. 5387/23 IN
CRIME NO.1033/23 DATED 6/7/2023, PASSED
BY HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT - I
Annexure III TRUE COPY OF THE REPLY DATED 25/7/2023
ISSUED FROM THE OFFICE OF THE ASST.
COMMISSIONER OF POLICE, NARCOTIC CELL
