Jurisdictional courts have authority to grant interim custody of seized vehicles under Section 457 Cr.P.C, overriding previous limitations set by Section 451 in NDPS Act cases.

JUDGMENT

The above Writ Petition (Crl.) is filed challenging the order dated 16.09.2023 in Crl.M.P.No.3589 of 2023 on the file of the Sessions Court, Ernakulam, by which an application filed under Section 451 Cr.P.C to get custody of Motor Bike bearing Reg.No.KL-

41/R-1204 is rejected. Hence, this Crl.M.C is filed.

2. Heard the counsel for the petitioner and the Public Prosecutor.

3. The learned Sessions Judge dismissed the application mainly for the reason that the public prosecutor submitted that the motor bike bearing Reg.No.KL-41/R-1204 has been handed over to disposal committee. In Shanil v. State of Kerala [ 2023 (2) KHC 88 ], this Court considered this point in detail and held that whether the vehicle is used for conveyance is to be decided by the court. After considering all the earlier decisions, this Court passed a detailed order in the above case. It will be better to extract the relevant portion of the above judgment here:

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 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 [ ]. Being contextually relevant, paragraphs 5 to 8 of the judgment is extracted hereunder;

“5. It has been opined by the High Court that the Court is not empowered to exercise the jurisdiction under Section 451 of the Code of Criminal Procedure to release a vehicle involved under NDPS Act in interim custody.

6. The appellant has urged inter alia that as per Section 36-C read with Section 51 of the NDPS Act , Criminal Procedure Code would be applicable for proceedings by a Special Court under NDPS Act and Section 451 has an inbuilt provision to impose any specific condition on the appellant while releasing the vehicle. The appellant is undoubtedly the registered owner of the vehicle but had not participated in the offence as alleged by the prosecution nor had knowledge of the alleged transaction.

7. Learned counsel seeks to rely on the judgment of this Court in Sunderbhai Ambalal Desai v. State of Gujarat – 2003 (2) KLT 1089 (SC) = (2002) 10 SCC 283 opining that it is no use to keep such seized vehicles at police station for a long period and it is open to the Magistrate to pass appropriate orders immediately by taking a bond and a guarantee as well as security for return of the said vehicle, if required at any point of time.

8. On hearing learned counsel for parties and in the conspectus of the facts and circumstances of the case, and the legal provisions referred aforesaid, we are of the view that this is an appropriate case for release of the vehicle on terms and conditions to be determined by the Special Court.”

A careful reading of the above paragraphs makes it clear that the appeal was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz, Section 36C r/w 51 of the NDPS Act and Section 451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Article 141 of the Constitution of India. I also take note of the judgment in Pradeep B. v District Drug Disposal Committee and others (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted.

12. Having found the jurisdictional courts to be having the power to grant interim custody, the ancillary question is whether such power is to be exercised under Section 451 or 457 of the Code. will be applicable when a property, which inclu