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2023 Supreme(Online)(KER) 9139
HIGH COURT OF KERALA
V. G. Arun, J
RESHMA RAMARAJA SHENOY – Appellant
Versus
THE DEPUTY COMMISSIONER OF EXCISE – Respondent
Crl.MC 3068 2023
P.U.SHAILAJAN, NIDHEESH T.P
Court clarified that NDPS Act does not limit the jurisdiction of Magistrates to grant interim custody under Cr.P.C., emphasizing the importance of judicial discretion and evaluation of circumstances.
Headnote:
Custody - Vehicle Seizure - NDPS Act, Section 52A, Cr.P.C. Sections 451 & 457 - The court outlined the roles of different provisions, determining that the inherent power of courts under Cr.P.C. to grant interim custody is not abrogated by the NDPS Act, allowing interim custody despite a pending confiscation.
Fact of the Case:
The petitioner sought the return of her vehicle seized in a narcotics case involving her husband. The initial request for interim custody was denied based on prior case law, leading her to pursue further options, ultimately addressed by a higher court.
Finding of the Court:
The court found that the learned Magistrate misapplied precedent by improperly restricting the evaluation of the custody petition to certain factors, and clarified that the petitioner was entitled to interim custody of her vehicle.
Issues: Did the Magistrate correctly apply the law regarding interim custody of a vehicle seized in a narcotics case, considering the petitioner is not accused?
Ratio Decidendi: The court established that the provisions of the NDPS Act do not preclude a Magistrate from granting interim custody under Cr.P.C. when a prior dismissal was based on misinterpretation of legal principles.
Final Decision: The Crl.M.C is allowed, and the impugned order is set aside, directing the release of the vehicle to the petitioner.
O R D E R
Dated this the 11th day of April, 2023 The petitioner's car bearing registration No.KA-03-NF-
8836 was seized in connection with Crime No.73 of 2022 registered at the Excise Range office, Iritty alleging commission of the offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act .
2. The prosecution allegation is that, at about 11.15 a.m on 12.12.2022, the Excise Officials intercepted the car driven by the accused, husband of the petitioner, and on search found 35 grams of Hashish in the dash board. The petitioner is not an accused in the crime. She initially approached the Jurisdictional Magistrate Court with a petition under Section 451 Cr.P.C, seeking interim custody of the vehicle. That petition was dismissed as per Annexure A4 order, relying on the Division Bench decision inShajahan v. Inspector of Excise [ 2019 (4) KLT 507 ], which had held that the courts of Sessions and Magistrates do not have jurisdiction to entertain petitions under Section 451 of Cr.P.C, in view of the special provisions under Section 52A of the NDPS Act. The petitioner therefore preferred an application before the 2nd respondent Committee, seeking release of her vehicle. The Committee having rejected the application as per Annexure A6, the petitioner approached this Court in Crl.M.C. No.1492 of 2023. By Annexure A7 order, the Crl.M.C. was disposed observing as under:
“2. A perusal of Annexure A4 impugned order shows that the petition seeking interim custody was dismissed, mainly relying on the decision inShajahan v. Inspector of Excise [ 2019 (4) KLT 507 ]. This Court inShanil and others v. State of Kerala and others. ( 2023/KER/9753 ) has held Shajahan v. Inspector of Excise and others [2019 (5) KHC 401] to have been impliedly reversed by the Supreme Court inSainaba v. State of Kerala [2022 (7) KHC (SC). It is also held that, when petitions seeking interim custody are filed under Section 457 Cr.P.C., the jurisdictional Magistrate or Special Judge, as the case may be, should consider the petition on merits.
Following the judgment inShanil and others (supra), this Crl.M.C is disposed of, permitting the petitioner to file a petition for interim custody under Section 457 Cr.P.C. and directing the learned Magistrate to consider that petition on merits, de hors the dismissal of the earlier petition under Section 451 Cr.P.C.”
3. On the strength of the above direction, the petitioner approached the Magistrate Court again this time with a petition under Section 457 Cr.P.C. By the impugned Annexure A9 order, that petition was dismissed, finding as under;
“8. From the averments in the affidavit filed by the petitioner this Court is not prima facie satisfied that the vehicle was used for the transportation of Ganja without the knowledge of the owner as stated in Shanil v. State of Kerala and another [2023 (2) KHC 88]. The materials before the court shows that the accused has transported 35 gms of Ganja in the said vehicle. Moreover from the report of the Deputy Excise Commissioner, it is seen that the said vehicle was produced before the authorized officer and the authorized officer has initiated the confiscation proceedings of the vehicle. Considering the facts and circumstances of this case and as the authorized officer has initiated the confiscation proceedings it is not proper on the part of the court to give interim custody of the said vehicle to the petitioner.”
4. Aggrieved, this Crl.M.C is filed.
5. Learned counsel for the petitioner contended that, in the face of the specific directions in Annexure A7 order, the learned Magistrate could not have rejected the petition filed under Section 457 Cr.P.C. Having read order, I find substantial merit in the contention. InShanil (supra), after detailed consideration of the relevant provisions, including Sections 52A and Section 60(3) of the NDPS Act, as also the decision of the Apex Court inSainaba (supra), the decision inShajahan is held to have been impliedly overruled
