IMPORTANT POINTS
A bare perusal of Section 52A(1) of the Act would reveal that the applicability of that provision is confined to four types of articles or things seized under the Act. They are: (1) narcotic drugs (2) psychotropic substances (3) controlled substances and (4) conveyances. Section 52A(1) of the Act has no application to any other thing or article seized under the Act-The issue for consideration before the Division Bench was regarding the power of the Magistrate under Section 451 Cr.P.C to release a conveyance or vehicle seized under the Act. It was in that context the Division Bench held that the Magistrate has no power to deal with a claim under Section 451 Cr.P.C.

ORDER :

Does the dictum laid down by the Division Bench of this Court in the decision in Shajahan v. Inspector of Excise [2019 (5) KHC 401: 2019 (4) KLT 507] interdict a Magistrate from exercising the power under Section 451 Cr.P.C in respect of a mobile phone seized from the possession of a person in the course of a search conducted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act')? This is the question posed for consideration in this petition filed under Section 482 Cr.P.C.

2. The petitioner is the first accused in the case registered as Crime No.212/2020 of the Vakathanam police station under Section 20(b)(ii)A of the Act and also under Sections 269 and 188 I.P.C and the provisions of the Kerala Epidemic Diseases Ordinance, 2020.

3. The prosecution case is that, on 06.04.2020, at about 14.10 hours, when the petitioner and the second accused in the case were travelling on an unregistered motor cycle, the Sub Inspector of Vakathanam police station intercepted them and on conducting search of the body of the petitioner, three grams of ganja oil was found in his possession. Smoking paper and other articles were found in the possession of the second accused.

4. The Sub Inspector seized the contraband substance and the mobile phone found in the possession of the petitioner and produced the articles in the Court of the Judicial First Class Magistrate – I, Changanassery.

5. The petitioner filed an application as Crl.M.P.No.1908/2020 under Section 451 Cr.P.C in the Magistrate's Court for releasing the mobile phone which was seized by the police from his possession.

6. Learned Magistrate dismissed the aforesaid application filed by the petitioner holding that the application is not maintainable in view of the decision in Shajahan (supra). The legality and propriety of the aforesaid order are challenged in this petition.

7. Sri.M.P.Madhavan Kutty, learned counsel for the petitioner contended that a mobile phone is not an article which comes under Section 52A of the Act and therefore, the learned Magistrate has gone wrong in finding that the decision in Shajahan (supra) applies to the application filed by the petitioner.

8. Sri.Suman Chakravarthy, learned Senior Public Prosecutor has fairly conceded that the provision contained in Section 52A of the Act is applicable only to the four types of articles or things mentioned in that provision.

9. Section 52A(1) of the Act provides that, the Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure specified.

10. A bare perusal of Section 52A(1) of the Act would reveal that the applicability of that provision is confined to four types of articles or things seized under the Act. They are: (1) narcotic drugs (2) psychotropic substances (3) controlled substances and (4) conveyances. Section 52A(1) of the Act has no application to any other thing or article seized under the Act.

11. True, in Shajahan (supra), after analysing the scope of the provision contained in Section 52A(1) of the Act in the light of the decision of the Supreme Court in Union of India v. Mohanlal : (2016) 3 SCC 379, the Division Bench has held that “going by the statutory provision under the Special Act, the power of the Magistrate to consider a claim under Section 451 of Cr.P.C stands denuded”. The dictum laid down by the Division Bench in