The court maintains jurisdiction to grant interim custody despite proceedings under Section 52A of the NDPS Act, permitting applications under Section 451 or 457 of Cr.P.C.

BECHU KURIAN THOMAS, J. -----------------------------------------

Crl.M.C. No. 392 of 2024 ----------------------------------------

Dated this the 31st day of January, 2024 ORDER Petitioner’s vehicle bearing Registration No. KL-44-F-7426 was allegedly involved in offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short ‘the NDPS Act’). The vehicle was seized. Immediately thereafter, petitioner filed an application under Section 451 of Cr.P.C before the Judicial First Class Magistrate's Court I, Muvattupuzha. By the impugned order dated 27-10-2023 in C.M.P.No.4539/2023 in Crime No.47/2023 of Excise Range Muvattupuzha, the learned Magistrate dismissed the application, stating that the Court has no jurisdiction since the conveyance was seized under Section

52(a)(i) of the NDPS Act, 1985.

2. Sri. Joseph Kiran D Thekkekara, the learned counsel for the petitioner relied upon the decision of this Court in Shanil v. State of Kerala (2023) 2 KLT 430 and contended that the jurisdiction of the Court to grant interim custody is not taken away merely because the procedure for disposal of the goods under Section 52A of the NDPS Act is initiated.

3. I have heard Sri.Ashi M.C., the learned Public Prosecutor as well.

4. On a perusal of the impugned order, it is evident that the learned Magistrate has observed that there is no jurisdiction for the Court since proceedings under Section 52(A) of NDPS Act have been initiated. In the decision in Shanil v. State of Kerala this Court observed in paragraph 16 as follows:-

“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., irrespective of the procedure for disposal stipulated in Section 52 A of the Act.”

5. In view of the above precedent, it is evident that the jurisdiction of the Court to grant interim custody of the vehicle is still available, notwithstanding the proceedings initiated under Section 52A of the NDPS Act. Though the learned Public Prosecutor pointed out that the present petition is filed under Section 451 , I am of the view that whether it is 451 Cr.P.C or 457 Cr.P.C., since the jurisdiction is available with the Court, it is a matter to be considered by the learned Magistrate as to whether the vehicle has been produced before the Court or it was only reported. In either case, since the impugned order has dismissed the application on the ground of lack of jurisdiction, I am of the view that the same is liable to be set aside.

6. Accordingly, I set aside the impugned order dated 27-

10-2023 in C.M.P.No.4539/2023 Crime No.47/2023 of Excise Range Muvattupuzha and direct the learned Magistrate to consider the matter afresh, after giving an opportunity of b