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2023 Supreme(Online)(KER) 20278
HIGH COURT OF KERALA
V. G. Arun, J
JESHEER.K.B
– Appellant
Versus
THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR – Respondent
WP(Crl.) 1241 2022
M.T.SURESHKUMAR, SREELAKSHMI SABU
Jurisdictional courts can grant interim custody of vehicles seized in NDPS Act cases under the Criminal Procedure Code, despite procedures established by Section 52A for disposal.
Headnote:
Narcotics - NDPS Act - Section 52A, Section 36C, Criminal Procedure Code Sections 451, 457 - The court interpreted the powers of jurisdictional courts regarding interim custody of vehicles seized under NDPS crimes, establishing that the Code applies, permitting interim custody while emphasizing procedural safeguards.
Fact of the Case:
Owners of vehicles seized in NDPS Act crimes challenged the rejection of their applications for interim custody. They argued that the court in a previous case misinterpreted Section 52A, which deals with disposal of seized substances, as limiting the jurisdiction to grant interim custody under the Code.
Finding of the Court:
The court found that jurisdictional courts retain the authority to grant interim custody of seized vehicles under the Criminal Procedure Code. It clarified that compliance with Section 52A for disposal does not eliminate the application of the Code nor the right to interim custody.
Issues: Whether jurisdictional courts can grant interim custody of vehicles seized under the NDPS Act when Section 52A provides a specific procedure for disposal of such conveyances.
Ratio Decidendi: The court held that Sections of the Criminal Procedure Code apply to NDPS proceedings, allowing interim custody under Sections 451 and 457 despite Section 52A's procedures, thereby emphasizing the jurisdiction of the courts to secure vehicles pending trial outcomes.
Final Decision: The court allowed the petitions, permitting applications for interim custody of seized vehicles under Section 457 of the Criminal Procedure Code.
JUDGMENT
Dated this the 13th day of February, 2023 (W.P.(Crl) Nos.1189 & 1241 of 2022, 29 & 83 of 2023, Crl.M.C Nos.8820, 9193 & 9255 of 2022 and 176, 271 & 323 of 2023)
The alarming proportion at which the menace of drugs was growing in our country compelled the Supreme Court to make the following observations in Union of India v Mohanlal and another [(2016)
3 SCC 379];
“26. The menace of drugs in this country, as observed earlier has alarming dimensions and proportions. Studies based on conferences and seminars have very often shown that the menace is deep rooted not only because drug lords have the money power and transnational links but also because the enforcement agencies like the police and at times politicians in power help them in carrying on what is known to be a money spinning and flourishing trade. We only hope that the failure of the Central Government agencies and the State Governments in providing what is the bare minimum in terms of infrastructure required to arrest the growing menace and prevent pilferage and re-circulation of drugs back into the market is not on account of any unholy connect between the drug traffickers and the enforcement agencies. We would comfort ourselves by presuming them to be relatable only to apathy and indifference and hope that the system does not get corrupted by continued neglect lest all hopes are lost in the fight against drug menace which are eating into the vitals of our society. It is in that spirit that we deem it necessary to issue appropriate directions to the Central Government agencies and to the States to set up adequate storage facilities with effective supervisory and regulatory controls as prescribed in Notification No. 1/89.”
Going by the available statistics, the words of caution seem to have fallen on deaf ears. The menace has grown manifold in the past seven years and God's own country is vying for a predominant position among the States.
2. For the purpose of deciding the issue involved in these cases the focus has to be shifted to another aspect dealt with inMohanlal (supra) viz; the procedure for seizure, sampling, safe keeping and disposal of narcotic drugs and psychotropic and controlled substances and conveyances in the light of Section 52A incorporated through an amendment in 2014. After detailed analysis, the following directions were issued inMohanlal;
“31. To sum up we direct as under:
31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading “seizure and sampling”. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order.
31.2. The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized narcotic drugs and psychotropic and controlled substances and conveyances duly equipped with vaults and double-locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No. 1 of 1989 to ensure proper security against theft, pilferage or replacement of the seized drugs.
31.3. The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one di
