Jurisdictional courts can grant interim custody of vehicles seized under the NDPS Act via Section 457 Cr.P.C, despite disposal regulations of the Act.

ORDER

This Criminal Miscellaneous Case is filed to quash Annexure-III order by which an application submitted by the petitioner under Section 451 of the Cr.P.C for the release of a Honda-Jazz/2B MT 1- VTECBS4 bearing Reg.No.KL-30-G-1071 was dismissed. The above vehicle is involved in Crime No.24/2023 of Excise Range Office, Pala. The case was registered alleging offences punishable under Sections 20 (b)(ii)(A), 29 and 60(3) of the NDPS Act. The vehicle was seized in connection with the above case. The learned Magistrate dismissed the application mainly for the reason that the NDPS Act prescribes the mode of disposal of the article and the vehicle seized and hence the Magistrate has no jurisdiction to entertain the same. Aggrieved by that order, this Criminal Miscellaneous Case is filed.

2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 3. This Court inShanil v. State of Kerala [ 2023 (2) KHC 88 ] considered the issue after referring to the decision of the Division Bench of this Court inShajahan v. Inspector of Excise and Others [2019 (4) KLT 507]. The relevant portion of the above judgment is extracted hereunder:

“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 S.451 or 457 of the Code. S.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, S.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 S.451 can be issued. On the other hand, the power under S.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 S.457 Cr.P.C, irrespective of the procedure for disposal stipulated in S.52Aof 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 S.60(3), is also an aspect which the jurisdictional court can consider.

In the result, the Crl.M.Cs and writ petitions, except W.P.(Crl) No.1189 of 2022, are disposed of permitting the petitioners to submit applications under S.457 Cr.P.C, seeking interim custody of the vehicles. On such applications being filed, the Special Courts and jurisdictional Magistrate courts, as the case may be, shall consider the applications on merits and pass reasoned orders thereon, de hors dismissal of earlier applications.

4. In Wilson C.C. v. State of Kerala [ 2022 (7) KHC 450 ] this Court held that, when contraband is recovered on body search from a person who was driving a vehicle 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. In such cases, it cannot be said that the vehicle has been used as conveyance and the vehicle is a subject matter of confiscation.

5. In Sainaba v. State of Kerala [2022 (7)

KHC 273], the Apex Court was considering a similar application filed for release of a vehicle. In that case also, the contraband was seized from the bag of the first accused in that case who was travelling in the vehicle. The Apex Court released the vehicle to the registered owner in that case.

In the light of the dictum laid down by this Court and the Apex Court, I think the matte