IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 11^TH DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 CRL.MC NO. 3068 OF 2023 AGAINST THE ORDER/JUDGMENT CMP 1353/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR PETITIONER RESHMA RAMARAJA SHENOY AGED 34 YEARS W/O.VISHNU P.SADASIVAN, 12/169, SURYA, KOVVAPALAM, P.O.MATTANCHERRY, ERNAKULAM, KOCHI-682 002, THROUGH POWER OF ATTORNEY HOLDER SADASIVAN.P.N, AGED 70 YEARS, S/O.NANUKUTTAN NAIR, PUTHETTU, P.O.CHOVVA, KANNUR, PIN - 670006 BY ADVS.

P.U.SHAILAJAN NIDHEESH T.P RESPONDENTS

1 THE DEPUTY COMMISSIONER OF EXCISE EXCISE DIVISION OFFICE, THAVAKKARA, KANNUR, PIN - 670002

2 KANNUR DISTRICT EXCISE NDPS & CONVEYANCE DISPOSAL COMMITTEE CHAIRMAN EXCISE DIVISION OFFICE, THAVAKKARA, KANNUR, PIN - 670002

3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 OTHER PRESENT:

SR.PP.RENJITH GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.04.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O R D E R

Dated this the 11^th day of April, 2023 The petitioner's car bearing registration No.KA-03-NF-

8836 was seized in connection with Crime No.73 of 2022 registered at the Excise Range office, Iritty alleging commission of the offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act.

2. The prosecution allegation is that, at about 11.15 a.m on 12.12.2022, the Excise Officials intercepted the car driven by the accused, husband of the petitioner, and on search found 35 grams of Hashish in the dash board. The petitioner is not an accused in the crime. She initially approached the Jurisdictional Magistrate Court with a petition under Section 451 Cr.P.C, seeking interim custody of the vehicle. That petition was dismissed as per Annexure A4 order, relying on the Division Bench decision in Shajahan v. Inspector of Excise [2019 (4) KLT 507], which had held that the courts of Sessions and Magistrates do not have jurisdiction to entertain petitions under Section 451 of Cr.P.C, in view of the special provisions under Section 52A of the NDPS Act. The petitioner therefore preferred an application before the 2^nd respondent Committee, seeking release of her vehicle. The Committee having rejected the application as per Annexure A6, the petitioner approached this Court in Crl.M.C. No.1492 of 2023. By Annexure A7 order, the Crl.M.C. was disposed observing as under:

“2. A perusal of Annexure A4 impugned order shows that the petition seeking interim custody was dismissed, mainly relying on the decision in Shajahan v. Inspector of Excise [2019 (4) KLT 507]. This Court in Shanil and others v. State of Kerala and others. (2023/KER/9753) has held Shajahan v. Inspector of Excise and others [2019 (5) KHC 401] to have been impliedly reversed by the Supreme Court in Sainaba v. State of Kerala [2022 (7) KHC (SC). It is also held that, when petitions seeking interim custody are filed under Section 457 Cr.P.C., the jurisdictional Magistrate or Special Judge, as the case may be, should consider the petition on merits.

Following the judgment in Shanil and others (supra), this Crl.M.C is disposed of, permitting the petitioner to file a petition for interim custody under Section 457 Cr.P.C. and directing the learned Magistrate to consider that petition on merits, de hors the dismissal of the earlier petition under Section 451 Cr.P.C.”

3. On the strength of the above direction, the petitioner approached the Magistrate Court again this time with a petition under Section 457 Cr.P.C. By the impugned Annexure A9 order, that petition was dismissed, finding as under;

“8. From the averments in the affidavit filed by the petitioner this Court is not prima facie satisfied that the vehicle was used for the transportation of Ganja without the knowledge of the owner as stated in Shanil v. State of Kerala and another [2023 (2) KHC 88]. The materials before the court shows that the accused has transported 35 gms of Gan