IN THE HIGH COURT OF KERALA AT ERNAKULAM 2023/KER/27379 PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TH THURSDAY, THE 25 DAY OF MAY 2023 / 4TH JYAISHTA, 1945 CRL.MC NO. 3738 OF 2023 ORDER DATED 16.03.2023 IN CMP NO.1306/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, THODUPUZHA PETITIONER/PETITIONER :

SULFIKKAR ALI AGED 35 YEARS S/O YUSEPH, VALAPPIL HOUSE, BHEEMANADU P.O, MANNARKKADU, PALAKKAD DISTRICT, PIN – 678601 BY ADVS.

P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH RESPONDENTS/STATE & RESPONDENT :

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

2 EXCISE INSPECTOR EXCISE RANGE OFFICE, THODUPUZHA, IDUKKI DISTRICT, PIN – 685584 SRI TR RENJITH, SR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

25.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

Being aggrieved by the order dated 16.03.2023 in C.M.P.No.1306 of

2023 of the Judicial Magistrate of the First Class-I, Thodupuzha, as per which interim custody of vehicle involved in Crime No. 57 of 2022 of Excise Range, Thodupuzha, this petition has been filed under Section 482 of the Cr.P.C.

2. The grievance of the petitioner is only with regard to condition No. (1) of the order by which, as a condition precedent, the petitioner has been ordered to deposit a sum of Rs. 1,80,000/- by way of cash or bank guarantee.

3. Short facts are as under:

A crime was registered by the Excise Range Officer, Thodupuzha, on the allegation that the petitioner, along with another person, were found traveling in a car bearing Reg. No. KL-65C-8241, and they were allegedly found in possession of 110 gms of dried Ganja. Consequent to the registration of Crime No. 57 of 2022 of the Excise Range Office, Thodupuzha, for the offence under Sections 20(b)(ii)(A), 29, and 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the car in which the petitioner was traveling was seized. The petitioner asserts that he is the registered owner of the car and also that he was unaware as regards the concealment of the contraband in his vehicle. Seeking interim custody of the car, the petitioner filed the application before the learned Magistrate, which was allowed by the impugned order.

4. Miss. Sai Pooja, the learned counsel appearing for the petitioner, points out that the contraband which was allegedly found in the car was just 110 gms and being categorized as a small quantity, the punishment that can be imposed is only rigorous imprisonment for a term which may extend to one year or fine which may extend to Rs.10000/-. According to the learned counsel, having decided to grant interim custody, relying on the law laid down by the Apex Court in Sainaba v. State of Kerala [2022 (7) KHC 273], there was no justification in directing the petitioner to deposit the value of the Maruti Swift Car for release on interim custody. According to the learned counsel, the order is unduly harsh and warrants interference.

5. The learned Public Prosecutor has opposed the submissions.

According to him, the menace of drugs has reached alarming proportions, and it is as a deterrent measure that the learned Magistrate has imposed stringent conditions. It is contended that the order does not warrant any interference.

6. I have considered the submissions. It is clear from the order passed by the learned Magistrate that the order was passed by the learned Magistrate relying on the law laid down by the Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat [2022 (10) SCC 283], Sainaba (supra) and Shanil v. State of Kerala [2023 (2) KHC 88]. However, while granting interim custody, the learned Magistrate was required to excise his powers and only insist on taking appropriate bond and guarantee as well as security for the return of the vehicle as held by the Hon’ble Supreme Court in Sunderbhai Ambalal (supra). The learned Magistrate ought to have reckoned the nature and gravity of the