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HIGH COURT OF KERALA
MARY JOSEPH, J
SHIJI AMBI – Appellant
Versus
STATE OF KERALA – Respondent
WP(Crl.)/1134/2022
Mandamus - Writ Petition - NDPS Act Sections [20(b)(ii)(B), 29] - The court held that the special court can grant interim release of a vehicle involved in narcotics cases, emphasizing the need for a hearing and timely order which the lower court failed to provide.
Fact of the Case:
The petitioner sought to release her motorcycle seized in a narcotics case under the NDPS Act, claiming no involvement in the alleged offenses. Her application for release was dismissed by the lower court.
Finding of the Court:
The court found that the lower court did not exercise its jurisdiction appropriately in light of the Apex Court's decision which allowed for interim release of vehicles. The impugned order was set aside for reconsideration.
Issues: Whether the lower court had the authority to grant interim release of the vehicle under the NDPS Act and whether appropriate hearing procedures were followed.
Ratio Decidendi: The special court is empowered to grant interim release on terms determined by it, and the failure to provide a hearing constitutes an improper exercise of discretion.
Final Decision: Writ Petition allowed; order of the lower court set aside and reconsideration directed.
JUDGMENT
Dated this the 19th day of December, 2022 This Writ Petition is filed under Article 226 of the Constitution of India seeking for the following reliefs :-
“i) issue a writ of mandamus or any appropriate writ, order or direction, directing the 3rd respondent to afford an opportunity of hearing the petitioner either physically or virtually and dispose the Exhibit P3 application and pass an appropriate order without further delay within a time frame fixed by this Hon’ble court.
ii) also permit the petitioner to dispense the production of translation of Malayalam document and petitioner undertakes that she will produce the Malayalam translation if it is required by this Hon’ble court.”
2. The writ petitioner herein is the registered owner of a Bajaj CT 110 motorcycle bearing Registration No.KL 42 S 7261, which stands seized in Crime No.575 of 2022 of North Paravoor Police Station registered for offences punishable under Sections 20 (b)(ii)(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). The petitioner has no involvement in the alleged offence. Therefore, she approached Court of Sessions, Ernakulam (for short ‘the court below’) and filed Crl.M.P.No.2529/2022 in the above crime seeking for release of the vehicle in her custody pending inquiry and trial of the case, which was dismissed by the court below, true copy of which order is produced alongwith the Writ Petition on hand as Ext.P2.
3. In Sainaba V. State of Kerala [2022 (7) KHC 273 (SC)] the Apex Court has held that the special court is empowered to exercise jurisdiction to grant interim release of the vehicle, on imposition of terms and conditions to be determined by it. In the above scenario, the impugned order is liable to be set aside.
In the result, the Writ Petition is allowed and Ext.P2 order is set aside. The court below shall reconsider Crl.M.P.No.2529 of 2022 and pass appropriate orders in tune with the direction of the Apex Court in Sainaba supra, within a period of one week from the date of receipt by it of a certified copy of this judgment.
Sd/-
MARY JOSEPH JUDGE
APPENDIX PETITIONER EXHIBITS :-
Exhibit P1 TRUE COPY OF RC BOOK MOTOR CYCLE KL
42 S 7261 OF PETITIONER Exhibit P2 TRUE COPY OF ORDER OF SESSIONS COURT ERNAKULAM IN CRL M P 2529/2022 DATED
6/10/2022 Exhibit P3 TRUE COPY OF COMPLAINT FILED BEFORE THIRD RESPONDENT Exhibit P4 TRUE COPY OF RECIEPT DATED 20/10/2022
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