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2023 Supreme(Online)(KER) 7702
HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
RINEESH K. – Appellant
Versus
STATE OF KERALA – Respondent
OP(Crl.) 899 2023
ADITHYA RAJEEV S.PARVATHI
A vehicle cannot be deemed as conveyance for contraband if the illicit substance was found on the accused, allowing for its interim custody under Section 457 Cr.P.C.
Headnote:
Narcotics - Motor Vehicle Custody - Cr.P.C. Section 457 - Court's Interpretation of Jurisdiction
Fact of the Case:
A vehicle belonging to the petitioner was seized during a narcotics investigation, leading to a petition for its release. Initial orders for custody were complicated by confiscation proceedings.
Finding of the Court:
The court confirmed the release order for the vehicle, stating that the contraband was found on the accused and not in the vehicle, establishing that the vehicle was not subject to confiscation.
Issues: Whether the vehicle can be released to the petitioner given the ongoing confiscation proceedings and the nature of the seizure.
Ratio Decidendi: The court held that jurisdiction under Cr.P.C. Section 457 applies for releasing a property not produced in court, emphasizing that previous rulings support interim custody in similar cases.
Final Decision: The vehicle must be released to the petitioner as per the court's directives.
JUDGMENT
Petitioner is the owner of the motor vehicle bearing Registration No. KL-85/A-9114. The vehicle was seized by the 3rd Respondent on 23.07.2023 in connection with Crime No.442/2023 of the Mavoor Police Station. The crime was registered against one Abdul Fatah K., alleging commission of offence under Section 22 (b) of the Narcotic Drugs and Psychotropic Substances Act , 1985.
2. The prosecution case is that, on 23.07.2023 at about
11.30 am, while the Sub Inspector of Police, Mavoor Police Station was on patrol duty, he had noticed the accused sitting suspiciously in a motor vehicle bearing Registration No. KL- 85/A-9114 parked on the Puthenkulam - Mecherikkunnu Road. It is alleged that police party had apprehended the accused, who had attempted to flee on their arrival and that the Police party had seized 1.070 grams of MDMA from the back pocket of the accused. It is an admitted fact that a thorough search was conducted in the motor vehicle, no other contraband is seized from the vehicle. The accused was arrested from the spot and the Police Party had also seized the motor vehicle.
3. The petitioner filed a petition under 457 Cr.P.C.
seeking interim custody of the vehicle before the Special Judge (NDPS Act Cases), Vatakara. The learned Special Judge, after perusing the records, found that contraband seized was identified as methamphetamine and since only small quantity of the substance was involved, the Court had no jurisdiction to entertain the petition. The Court transferred the case to the Magistrate Court as per Ext.P2 order.
4. Thereafter the petitioner filed an application before the Court of the Judicial Magistrate of First Class, Kunnamangalam, under Section 457 Cr.P.C. seeking release of the petitioner’s motor vehicle. The learned Magistrate, as per Ext.P3 order, released the vehicle to the petitioner, after imposing certain conditions. Even though Ext.P3 order was passed, the vehicle was not released based on an instruction submitted by the Assistant Public Prosecutor that since confiscation proceedings in relation to the vehicle had been initiated, court has no jurisdiction to release the vehicle. Hence the learned Magistrate did not permit the petitioner to execute the bond even though Ext.P3 order is passed.
5. Then the petitioner preferred Crl.M.P.
No.7367/2023 before the Court of the Judicial Magistrate of First Class, Kunnamangalam under Section 457 Cr.P.C. seeking release of the Registration certificate and Insurance Policy of the vehicle.The learned Magistrate had found that the vehicle had been produced before the Drug Disposal Committee and that confiscation proceedings had been initiated. Hence, the learned Magistrate concluded that the court lacks jurisdiction and the petition was dismissed as per Ext.P4. Aggrieved by the same, this O.P.(Crl.) is filed.
6. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
7. It is an admitted fact that the vehicle was released to the petitioner as per Ext.P3 order and that order became final. It is not challenged by the prosecution. Moreover, it is also an admitted fact that the contraband is seized from the pocket of the accused and not from the vehicle. This Court in Wilson C.C. v. State of Kerala [2022 (2) KHC 452] observed that if the contraband is recovered on body search from a person, who was driving a vehicle, it has to be held that the contraband was kept in secrecy by the accused in his body, though he had travelled in a vehicle and in such cases, it cannot be said that the vehicle has been used as conveyance and the vehicle is a subject matter of confiscation.
8. Similary in Shanil v. State of Kerala [2023 (2) KLT
430], this Court observed that when a vehicle is produced before a criminal court in connection with an NDPS Act, whether the same is used for the conveyance of the contraband can be decided by the court while deciding a petition under Sec. 451 or 457 Cr.P.C. The relevant portion of the judgment is extracted hereunder
