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HIGH COURT OF KERALA
MARY JOSEPH, J
ASHIF P.A. – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(Crl.)/293/2022
Mandamus - Vehicle Confiscation - NDPS Act Section 20(b)(ii)(A) - The court highlighted the procedures for vehicle confiscation under the NDPS Act, and provided for interim release of the vehicle pending inquiry or trial, emphasizing the need for proper hearings and considerations of representation.
Fact of the Case:
A vehicle owned by the petitioner was seized under allegations linked to a narcotics offense, leading to multiple representations and petitions regarding its confiscation and the right to release it during legal proceedings.
Finding of the Court:
The court found that the petitioner had not been adequately heard in earlier proceedings and upheld the rights for interim release of the vehicle, directing that a proper application be made to the Special Court.
Issues: Whether the petitioner was given a fair opportunity to present his case regarding the release of the vehicle involved in a criminal offense.
Ratio Decidendi: Due process must be followed in vehicle confiscation cases, requiring adequate hearings and the possibility for interim release where appropriate.
Final Decision: The Writ Petition was disposed of, directing the petitioner to apply for interim release of the vehicle to the Special Court.
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 other appropriate writ or direction calling the records leading upto Exhibit-P6 and quash the same by issuing a writ of certiorari.
II) Issue a writ of mandamus order or direction directing the 3rd respondent to release the vehicle bearing registration No.KL-27-C-9090 to the petitioner, upon such terms and conditions which are deem fit in the interest of justice and to report the matter to the Judicial First Class Magistrate Court, Njarakkal.
III) Issue such other writ, order or direction as this Hon’ble Court may deem fit to grant in the circumstances.
IV) Grant cost of the petitioner.”
2. Brief facts of the case are as follows:
A BMW 520d car bearing Registration No.KL-27-C-
9090 having Engine No.77078127 and chassis No.WBAFW75060C475254 was given for the personal use of one Mr.Sirajudheen. The vehicle was owned by the petitioner herein. Lateron, the vehicle was seized by Munambam police and Crime No.146 of 2021 was registered alleging commission of offence punishable under Section 20 (b)(ii) (A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ‘NDPS Act’). Mr.Sirajudheen and Mr.Thafseer were arrested in the crime after seizure of 30 gms of Ganja.
3. Petitioner filed a representation before the 3rd respondent on 27.07.2021. He also moved Writ Petition (C) No.16957/2021 before this Court. A judgment was passed in the said Writ Petition on 24.08.2021 issuing a direction to the 3rd respondent to consider the representation filed by the petitioner before proceeding to confiscate the vehicle. The 3rd respondent issued notice to the petitioner for hearing on 27.10.2021 and the latter was heard on the scheduled day. An order was passed on 10.11.2021, whereby the representation filed by the petitioner was rejected stating that the vehicle is liable to be put to public auction, true photocopy of which order is appended to the petition on hand as Ext.P4. Another Writ Petition (Crl.) was moved by the the petitioner then alleging that he was not heard properly. This Court has passed a judgment on 02.12.2021 in Writ Petition (Crl.) No.405/2021 and pursuant to that the 3rd respondent issued notice to the petitioner for hearing. By order dated 28.12.2021 the petition filed by the petitioner was rejected and the vehicle was directed to be confiscated, true copy of which order is produced alongwith the petition on hand as Ext.P6. 4. 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 said context, the Writ Petition (Crl.) is disposed of with a direction to the petitioner to prefer appropriate application before the Special Court seeking for interim release of the vehicle during the pendency of inquiry and trial of the case. On such an application being filed, the court concerned shall pass orders for grant of the vehicle in interim custody of the petitioner subject to terms and conditions, as it deems fit, within a week from the date on which the application is filed.
Sd/-
MARY JOSEPH JUDGE
APPENDIX OF WP(CRL.) 293/2022 PETITIONER’S EXHIBITS:
EXHIBIT P1 A PHOTOCOPY OF THE POWER OF ATTORNEY ISSUED BY PETITIONER IN FAVOUR OF KUNJUMUHAMMED S.A., DATED 13.7.2021.
EXHIBIT P2 A PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE.
EXHIBIT P3 A PHOTOCOPY OF THE FIR IN CRIME NO.146 OF
2021 OF MUNAMBAM POLICE STATION.
EXHIBIT P4 PHOTOCOPY OF THE ORDER ISSUED BY 3RD RESPONDENT DATED 10.11.2021.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WRIT PETITION (CRL.) NO.405/2021 DATED 2/12/2021.
EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 28.12.2021.
RESPONDENTS’ EXHIBITS: NIL TRUE COPY PA TO JUDGE
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