Property under the NDPS Act can only be seized with prima facie evidence of its involvement in a crime; otherwise, the seizure is unjustified.

JUDGMENT

Dated this the 22nd day of July, 2022 S.Manikumar, C.J.

Before the writ court, the writ petitioner/appellant has sought for the following reliefs:

“i. To issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to the above case and quash Ext.P4 proceedings initiated against the petitioner and her property.

ii. To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 2 and 3 to release Hyundai i-20 Car bearing Reg. No.KL 45Q 567 to the petitioner.

iii. To declare that the petitioner and the vehicle bearing Reg. No KL 45Q 567 is not involved in commission of any offence as per Ext.P3 and the vehicle bearing Reg. No.KL 45Q 567 is not liable to be proceeded under the NDPS Act.”

2. Short facts leading to the filing of the writ petition are as follows:

2.1. The petitioner is the owner of a Hyundai i-20 car registered with the 4th respondent having registration No.KL 45Q 567. The registration certificate, insurance and other documents of the vehicle are in the name of the petitioner. The petitioner's vehicle was taken into custody by the 2nd respondent and the petitioner was issued with Exhibit P2 notice under section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act” for short). Exhibit P3 FIR was registered by the 2nd respondent and it is later on known to the petitioner that crime was registered under section 20(b)(ii)B, 20(b)(ii)C, 8(C), 27(A) and 29 of NDPS Act against one Mr.Abeesh, who is arrayed as the 7th accused.

2.2. The 7th accused is a driver by profession and he verbally agreed to purchase the vehicle and the petitioner's husband temporarily handed over the possession of the vehicle to the above accused. There is no allegation that the vehicle is used for transporting any contraband article or used by the accused in contravention of any provisions of NDPS Act.

2.3. The 2nd respondent, by issuing Exhibit P4 under section 68F (1) of the NDPS Act, alleged that the 7th accused purchased the vehicle by using the sale proceeds of contraband articles and, therefore, the vehicle is liable to be seized and, accordingly, Exhibit P4 was issued. There is no prima facie evidence to show that the vehicle is involved in commission of any crime or the 7th accused purchased the vehicle from the petitioner by completing the sale. There is no agreement for sale between the petitioner and the 7th accused and no consideration was received by the petitioner except an amount of Rs.2,65,000/- received by the husband of the petitioner from the 7th accused in the crime. No transfer of ownership is effected and since the vehicle is not involved in commission of any crime, the petitioner is challenging Exhibit P4 order passed by the 2nd respondent and seeking interim custody of the vehicle by filing W.P.(Crl.)No.412 of 2022.

3. When the matter came up for hearing on 23.06.2022, on instructions, the learned Public Prosecutor has submitted that the order impugned has already been confirmed by the higher authority and that the remedy available to the writ petitioner is to approach the appellate authority as contemplated under Section 68-O of the Narcotic Drugs and Psychotropic Substances Act, 1985 . Stating so, the writ petition has been dismissed as infructuous. Being aggrieved, instant writ appeal is filed.

4. Exhibit P4 order dated 19.04.2022 impugned in the writ petition reads thus:

“Proceedings of the Inspector of Police, Angamly Police Station, Ernakulam Rural District, Under The Home Department, Government of Kerala Pin-683572. PhNo. 9497987120, 0484-2452328 Read (1). Cr 248/2022 u/s 20(b)(ii)B, 20(b)(ii)C, 8(C), 27(A) & 29 of NDPS Act 1985 of Angamaly Police Station, Ernakulam (R), Kerala.

(2). Vehicle particulars of KL-45Q-0567 Hyundai i20 Car issued by Motor vehicle department Kerala, Irinjalakuda SRTO.

FREEZING ORDER in Crime No.248/2022 of Angamaly Police Station (Issued u/s 68 F(1) of NDPS Act 1985 as amended)

I, Sony Mathai,