IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.

TUESDAY, THE 9^TH DAY OF MAY 2023 / 19TH VAISAKHA, 1945 CRL.MC NO. 3658 OF 2023 CRIME NO.43/2022 OF Trivandrum Excise Range Office, Thiruvananthapuram AGAINST THE ORDER/JUDGMENTCRMP 614/2023 OF I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM PETITIONER:

NOBLE NORBERT AGED 25 YEARS S/O NORBERT LOPEZ, LOVE LANDS, PUTHENTHOPE, THIRUVANANTHAPURAM,, PIN - 695586 BY ADVS.

R.T.PRADEEP M.BINDUDAS K.C.HARISH SANDRA S.KUMAR RESPONDENT:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 SRI. NOUSHAD K.A. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

09.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

This Crl.M.C. has been filed challenging Annexure-II order in Crl.M.P.No.614/2023 in Crime No.43/2022 of Excise Range Office, Thiruvananthapuram, pending before the Additional Sessions Court-I, Thiruvananthapuram. The order was passed on an application filed by the petitioner under Section 451 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C'). for release of a vehicle seized in a crime registered under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'). The said application filed by the petitioner was rejected on the ground that the matter of disposal of the vehicle has been forwarded to the Drugs Disposal Committee under Section 52A of the NDPS Act.

2. The learned counsel appearing for the petitioner would submit that this Court in Shanil v. State of Kerala; 2023 (2) KLT 430 had taken the view that notwithstanding the provisions contained in Section 52A of the NDPS Act, an application for interim custody of a seized vehicle can be considered by the competent Court under Section 457 Cr.P.C. 3. The learned Public Prosecutor seeks time to get instructions.

However, having perused the judgment of this Court in Shanil (supra)

and taking into consideration the order that I propose to issue, this matter need not be adjourned to enable the Prosecutor to obtain instructions. In Shanil (supra) this Court in paragraphs 10, 11 and 12 held as follows:-

10. Yet another relevant aspect is that, by virtue of Section 36C of the Act, the provisions of the Code are applicable to proceedings before the Special Court. Further, Section 51 makes the provisions of the Code applicable with respect to warrants and arrests, searches and seizures, insofar as they are not inconsistent with the provisions of the Act. Going by Section 60(3), a conveyance can be confiscated only if the owner fails to convince the court that the vehicle was so used without the knowledge of the owner, his agent or the person in charge and that each of them had taken all reasonable precautions against such use. From a conjoint reading of the above provisions, it is evident that Section 52A, dealing with only disposal of contraband, their packages and conveyances cannot have any impact on power of the jurisdictional court to grant interim custody of vehicles. The Drug Disposal Committees are not seen empowered to consider the question whether the vehicle is 'conveyance' used in transporting the contraband or whether the vehicle was put to such use, in spite of the owner or agent having taken all precautions to prevent it.

11. Although, in Shajahan(supra), this Court held the Magistrates to be denuded of the power to grant interim custody under Section 451 Cr.P.C, that decision is impliedly reversed by the Supreme Court in Sainaba v State of Kerala [2022 (7) KHC 273]. To summarise, in Sainaba v State of Kerala and another [2022 KHC 917], a learned Single Judge of this Court held that the Special Court is not empowered to exercise jurisdiction under Section 451 to release a vehicle involved in an offence under the NDPS Act on interim custody. That order was reversed by the Supreme Court in Sainaba v State of Kerala [2022 (7) KHC 273]. Being