Legal provisions for interim custody must align with the severity of the alleged crime, ensuring conditions are neither punitive nor disproportionate.

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 inSainaba 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 inSunderbhai Ambalal Desai v. State of Gujarat [2022 (10) SCC 283], Sainaba (supra) andShanil 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 inSunderbhai Ambalal (supra). The learned Magistrate ought to have reckoned the nature and gravity of the allegations levelled against the party, the antecedents of the person claiming interim custody, severity of the offence, and other attendant facts and circumstances while deciding to impose conditions for releasing the vehicle on interim custody. In the case on hand, after having decided to grant interim custody, the learned Magistrate ought to have reckoned that the quantity of contraband seized from the accused falls in the category of small quantity and is punishable with imprisonment of up to one year and a fine of Rs. 10000/-. As rightly submitted by the learned counsel, I have no doubt in my mind that the direction to furnish cash security or bank guarantee of Rs.1,80,000/- is unduly harsh. I am of the considered opinion that the impugned order warrants interference.

Resultantly, this petition will stand allowed. Condition No. (1) in the order dated 16.03.2023 in C.M.P.No. 130