IN THE HIGH COURT OF KERALA AT ERNAKULAM 2023/KER/29649 PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V RD TUESDAY, THE 23 DAY OF MAY 2023 / 2ND JYAISHTA, 1945 CRL.MC NO. 3588 OF 2023 CRL.M.P.NO.227/2023 ON THE FILE OF THE SPECIAL JUDGE (NDPS ACT CASES) VATAKARA CRIME NO.276/2023 OF KANNUR TOWN POLICE STATION PETITIONER/PETITIONERS :

UFSAL RAHIMAN AGED 42 YEARS S/O YOUSAF, RASHEEDA MANZIL, KOLLARATHIKKAL, KATTAMPALLY POST, CHIRAKKAL, KANNUR DISTRICT., PIN – 670011 BY ADV P.K.RAVISANKAR RESPONDENT/RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031

2 CHAIRMAN DRUG DISPOSAL COMMITTEE UNDER NDPS ACT, OFFICE OF COMMISSIONER OF POLICE, KANNUR, PIN – 670001 SRI PRASHANTH MP, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

23.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

Being aggrieved by the order dated 04.04.2023 in Crl.M.P.

No.227/2023 on the file of the Court of the Special Judge (NDPS Act cases), Vatakara, by which the application filed by the petitioner under Section 451 of the Cr.P.C. for getting interim custody of the car bearing registration No.KL-13-AQ-0838 was dismissed, the petitioner has approached this Court with this petition invoking the powers of this Court under Section 482 of the Code of Criminal Procedure.

2. It is the case of the petitioner that he is the registered owner of the Maruti Ciaz Motor Car bearing registration No.KL-13-AQ-0838. On 23.02.2023, the Sub Inspector of Police, Kannur Town Police Station, along with his police party, were on patrol duty and when they reached near the Thalap Sundareswara temple, they encountered two persons standing by the side of the road. Finding something amiss by their demeanour and appearance, when the officers zeroed in, the accused tried to flee in their car. The car was intercepted by the police and a search was conducted in accordance with the provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985. It is alleged that accused 1 and 2 were found in possession of 34.89 grams of MDMA, which falls within the category of commercial quantity. On search of the vehicle, about 0.71 grams of ganja was found along with certain glass pipes and utensils used for smoking ganja. The vehicle and the contraband were seized and a crime was registered.

3. The petitioner approached the Special Judge and filed an application seeking interim custody of the vehicle. The learned Special Judge, after considering the law laid down by this Court in Shanil v. State of Kerala [2023 (1) KLT 371], came to the conclusion that there were prima facie materials to show that the vehicle was used for transporting the contraband and the vehicle having been used as a conveyance, the request for interim custody was rejected.

4. Sri. Ravisankar P.K., the learned counsel for the petitioner, submitted that the order passed by the learned Special Judge cannot be sustained. The learned counsel would refer to the law laid down by the learned Single Judge in M/S.Smart Logistics v. State Of Kerala [2020 (5) KLT 298] and it is submitted that a conveyance would be liable for confiscation only when it is “used in carrying” any narcotic drug or psychotropic substance or controlled substance. Relying on Paragraph No.

39 of the judgment, it is submitted that in those cases where, there is an accidental presence of contraband in the vehicle driven by a paid driver and materials suggests that it was without the knowledge of the owner of the vehicle that the driver had committed the above act, it would not necessarily mean that the vehicle was used in carrying the contraband substance. It is further submitted that this Court, in Shanil v. State of Kerala [2023 (1) KLT 371], after relying on the law laid down in Sainaba Vs. State of Kerala [2022 (7) KHC 273] had occasion to hold that there is no embargo in considering the application under Sections 451 and 457 in seizures effected under the NDPS Act. According to the lear