A registered vehicle owner must show they took reasonable precautions against illegal use; failure of knowledge absolves them of liability for related drug offenses.

JUDGMENT

This Writ Petition is filed under Article 226 of Constitution of India, seeking for the following reliefs:

“i. To declare that clause 9(e) of Exhibit-P8 is ultavires of

Section 52A of Act 61 of 1985 and unconstitutional;

ii. To issue a writ of certiorari or any other writ or order calling upon the records pertaining to Exthibits-P9 and P10

and quash the same;

iii. To issue a writ of mandamus or any other appropriate writ, order or direction to the respondents release Harley Davidson Motorbike bearing Registration Number KL-07-BY-

48 forthwith to the petitioner;

iv. Such other reliefs which this Hon’ble Court may deem fit

and proper in the interest of justice.”

2. The writ petitioner is the registered owner of Harley Davidson Motorbike bearing Registration No.KL-07-BY-0048. She is the Headmistress of a school. The motorbike was used by her son, who is studying for MBBS. The motorbike was intercepted while being driven by the son of the petitioner. 9.00 gms of Hashish Oil was seized from the possession of the son of the petitioner by Fort Kochi Police on 01.12.2021.

Crime

No.1604/2021 was registered at Fort Kochi Police station against the petitioner’s son alleging commission of an offence punishable under Section 20 (b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), true copy of which is produced alongwith the petition on hand as Ext.P1. According to the petitioner, the vehicle was taken by her son on 01.12.2021 for a ride to see his friend. Lateron she came to know on receipt of a notice from the 4 th respondent that the vehicle is involved in an offence coming within the purview of NDPS Act. She was asked to produce the Certificates of Registration and Insurance of the vehicle. She has moved an application before the jurisdictional Magistrate under Section 451 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking for interim custody of the vehicle. That application was dismissed as not maintainable for the reason that by virtue of a Notification issued by the Central Government under Section 52A of NDPS Act, the court is barred from exercising jurisdiction under Section 451

Cr.P.C, rather it is empowered only to hand over the vehicle to the Drug Disposal Committee under Section 52A of NDPS Act for disposal, true copy of which order is produced alongwith the petition on hand as Ext.P6. The petitioner then approached the Drug Disposal Committee seeking for release of the vehicle by filing an application on 27.01.2022, true copy of which is produced alongwith as Ext.P7. That application was dismissed by the Drug Disposal Committee, true copy of the order is produced alongwith as Ext.P10. Aggrieved by the said order and being left with no other remedy, the petitioner has approached this Court in the Writ Petition on hand seeking for a writ of mandamus, order or direction to the respondents to release the vehicle.

3. The learned Public Prosecutor is heard. According to him, the contraband seized is Hashish Oil and quantum is 9 gms and it was seized from the person of the accused. According to him, the vehicle was in use by the accused at the relevant time and therefore cannot be said to have not been involved for transportation of the contraband.

4. This Court has called for the Case Diary relating to Crime No.1604/2021 of Fort Kochi Police Station. The learned Public Prosecutor made the Case Diary available to this Court. The seizure of the vehicle from the custody of petitioner’s son was on 01.12.2021 and it was during vehicle inspection at 11.05 pm. The vehicle was signalled to stop and petitioner’s son stopped the same. He attempted to throw away something from his pocket. It was found to be a plastic box. The plastic box was taken from the custody of the petitioner’s son and it was opened. The contents of plastic box was found to be Hashi