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2020 Supreme(Ker) 898
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Rahul Santhosh - Appellant
Versus
State of Kerala - Respondent
W.P. (C) No.5904 of 2020
Decided on 30th July, 2020
Advocate Appeared:
For the Appellant : C.Y. Vinod Kumar, C. Anilkumar (Kallesseril), P.M. Manash, Jain Varghese & Nadeem Ahamed Resheed
For the Respondent: Suman Chakravarthy (Sr. Government Pleader)
IMPORTANT POINT
Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive and specific duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy available and without which there would be a failure of justice
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985- Section 20(b)(ii)A -The power to dispose of a conveyance seized under the Act is vested with the Drug Disposal Committee constituted under the Notification dated 16th January, 2015. The mode of disposal of conveyance, which is envisaged as per sub-clause (e) of Clause 5 of paragraph 9 of the Notification, is sale by way of tender or auction as determined by the Drug Disposal Committee
Statement of facts:
The petitioner is the registered owner of the motorcycle -Seized by the Excise Inspector-Eight grams of ganja was seized from the possession of the accused and that the accused committed an offence punishable under Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985-The petitioner approached the Excise Deputy Commissioner, Kottayam with Ext.P2 petition seeking interim custody of the motorcycle. But, the second respondent did not receive the petition on the ground that he had not received any official communication permitting him to consider any petition seeking interim custody of vehicles. Hence, the writ petition
Finding of the court:
The petitioner has not produced sufficient materials before the court in support of the averments in the writ petition-Not produced any document to show that he is the owner of the vehicle which was seized by the excise party. He has also not produced copy of the relevant documents which would show the circumstances under which the excise party had seized the motorcycle. Copy of the crime and occurrence report or the seizure mahazar in the case is not produced
Result: Writ petition is dismissed.
JUDGMENT
This writ petition is filed seeking the following reliefs:
i. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 3rd respondent to give interim custody of the Motor Cycle bearing temporary registration No.KL/36/TEM/2019/4551 to the petitioner.
ii. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to accept and pass orders on Ext.P2 petition.
iii. Grant such other and further relief as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of this case.”
2. The material averments in the writ petition can be stated as follows. The petitioner is the registered owner of the motorcycle bearing temporary registration No.KL/36/TEM/2019/4551. The aforesaid motorcycle was seized by the Excise Inspector, Vaikom Excise Range in Crime No.35/2019. One P.K.Achu, who is the son of the maternal aunt of the petitioner, is the accused in the aforesaid case. It is understood that the allegation in that case is that eight grams of ganja was seized from the possession of the accused and that the accused committed an offence punishable under Section 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). The motorcycle was seized by the excise party on 12.12.2019 and it is kept in the premises of the office of the Vaikom Excise Range, exposed to weather conditions. The petitioner is the sole owner of the aforesaid motorcycle. No other person has got any right over it. The petitioner filed an application as Crl.M.P.No.10183/2019 before the Judicial First Class Magistrate-I, Vaikom under Section 451 Cr.P.C seeking interim custody of the motorcycle. The aforesaid petition was dismissed by the learned Magistrate on 31.12.2019 as per Ext.P1 order. Thereafter, the petitioner approached the second respondent, the Excise Deputy Commissioner, Kottayam with Ext.P2 petition seeking interim custody of the motorcycle. But, the second respondent did not receive the petition on the ground that he had not received any official communication permitting him to consider any petition seeking interim custody of vehicles. Hence, the writ petition seeking the above reliefs.
3. Heard learned counsel for the writ petitioner and also the learned Senior Government Pleader.
4. Before considering the merits of the writ petition, it is to be noted that, when the writ petition came up for admission on 12.03.2020, it was admitted and a direction was made by this Court that counter affidavit/statement of the respondents shall be filed within a period of two weeks. Meanwhile, lockdown was declared due to the pandemic Covid-19 and the summer vacation of the court also ensued. In such circumstances, the respondents have not filed any counter statement/affidavit. However, learned counsel for the petitioner insisted for hearing of the writ petition and therefore, it was heard on 09.07.2000 and on 14.07.2000.
5. In the circumstances mentioned above, this Court has to dispose of the writ petition only on the basis of the documents produced by the petitioner, which unfortunately, are quite insufficient to prove or establish his contentions.
6. Ext.P1 is the copy of the order passed by the Judicial First Class Magistrate-I, Vaikom in the application filed by the petitioner before that court under Section 451 Cr.P.C, seeking interim custody of the vehicle allegedly owned by him. Ext.P1 order reads as follows:
“Petitioner is the registered owner of vehicle bearing Registration No.KL-36/G/TMP/2019/4551 which has been seized by the Excise Inspector, Vaikom Range in Crime No.35/2019. The said property has been produced before this court and the same is entered as T.563/19 in the property register. Petitioner submits that the property is being exposed to the vagaries of nature lying at the premises of police station. Hence he seeks interim custody under Section 451 Cr.P.C.
2. Report has been called for from the investigating
