Dismissed

Ubaid v. State of Kerala

Kerala HC19 Feb 2014Crl.MC/603/2014

Case brief

AI extract

What is this about?

Petitioner filed a criminal miscellaneous case under Section 482 CrPC seeking to set aside the dismissal of his interim custody application for a seized autorickshaw in an NDPS case. Petitioner argued prior convictions were irrelevant to interim custody. Court upheld the lower court's order, noting Section 60 NDPS Act liability and suspecting vehicle reuse based on history.

What the court decided

AI extract

Ubaid Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2014/30TH MAGHA, 1935

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Crl.MC.No. 603 of 2014

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-------------------------CMP NO. 10058/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM DATED 3/01/2014

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CRIME NO. 3/2013 OF PARAPPANANGADI POLICE STATION , MALAPPURAM

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PETITIONER(S)/PETITIONER:

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UBAID, AGED 48 YEARS, S/O.KUNHIMUHAMMED, KULAMBIL HOUSE, LAKSHAM VEED COLONY, AREEKULAM, VENGARA, MALAPPURAM DISTRICT.

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BY ADV. SRI.T.K.AJITH KUMAR

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RESPONDENT(S)/RESPONDENT:

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STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, PARAPPANANGADI RANGE, MALAPPURAM DT. PIN: 676 303 BY THE PUBLICPROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Kss

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Crl.MC.No. 603 of 2014

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE-A: TRUE COPY OF THE PETITION DATED 7.12.2013 VIDE NUMBER CMP NO.10058/2013.

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ANNEXURE-B: CERTIFIED COPY OF THE ORDER DATED 3.1.2014 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM IN CMP NO.10058/2013.

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RESPONDENT(S)' ANNEXURES:

N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

K. RAMAKRISHNAN, J.

Crl. M.C. No.603 of 2014

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Dated this the 19^th day of February, 2014

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O R D E R

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This criminal miscellaneous case is filed by the petitioner to set aside the order in Crl.M.P.No.10058/2013 (in Crime No.3/2013 of Parappanangadi Police Station) of the Judicial First Class Magistrate Court, Malappuram, under Section 482 of the Code of Criminal Procedure (hereinafter called the ‘Code’).

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It is alleged in the petition that, he is the owner of the autorickshaw with Reg.No.KL-10P/1995. The said vehicle was seized by the respondent on the allegation that on 02.12.2013 the petitioner was found in possession of 100 grams of Ganja in his vehicle and committed the offence punishable under Section 10(A) of the NDPS Act. He filed Annexure-A application, seeking interim custody of the vehicle and that was dismissed by the learned magistrate by Annexure-B order. Dissatisfied by the same, he filed this application to interfere with the order and

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Crl. M.C. No.603 of 2014

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grant interim custody of the vehicle and seeking the following relief:

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“In the above circumstances, it is most humbly prayed that this Hon'ble court may be pleased to quash Annexure-B order and direct the court below to release the vehicle bearing registration number KL-10-P/1995 to the petitioner by executing bond.”

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3. On getting instructions, learned Public

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Prosecutor filed a statement of the Excise Inspector, Excise

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Range, Parappanangadi, which reads as follows:

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On 02/12/2013 at 7 p.m., Sujith K.P., Excise Inspector, Excise Range Office Parappanangadi and party seized an auto rickshaw bearing Reg. No.KL 10 P / 1995 for transporting 110 gm of Ganja. The Ganja was contained in a plastic cover hanged on the handle of the autorickshaw. The driver of the autorickshaw Sri.Ubaid S/o. Kunhimuhammed, Kolambil House, Areakkulam Desom, Vengara Village, Tirurangadi Taluk was arrested from the scene of occurrence itself. An NDPS case was registered as NDPS CR No.03/2013 under Section 20(b) ii (A) of NDPS Act 1985 at Parappanangadi Range. As per the RC particulars received from the Sub-Regional Transport Office Tirur, the accused involved in the case Mr. Ubaid is the RC owner of the vehicle. On investigation it is understood that the same Mr.Ubaid is also involved in the following cases registered in Vengara Police Station.

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Vengara Police Station CR No.55/2007 dt. 21.02.2007 U/s. 20(b) ii (A) of NDPS Act 1985 and convicted fine for Rs.8000/-.

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Vengara Police Station CR No.78/2008 U/s. 20(b) ii (A) of NDPS Act 1985 and convicted for 6 month RI and

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Crl. M.C. No.603 of 2014

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fine for Rs.10000/-.

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Vengara Police Station CR No.406/2008 dt. 16.11.2008 U/s. 3 of KAAPA Act 2007 and convicted for 6 month imprisonment.

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Heard the learned counsel for the petitioner

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and learned Public Prosecutor.

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The counsel for the petitioner submitted that, merely because he was engaged in similar offences earlier, is not a ground to deny the interim custody of the vehicle to the petitioner. The Criminal Court under Section 451 of the ‘Code’ has got power to grant interim custody in all cases.

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It is an admitted fact that, the vehicle was

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seized by the excise Inspector, while the accused was alleged to be found in possession of 100 grams of Ganja. It is seen from the report of the Excise Inspector that, he had involved in similar offences earlier in CR No. 55/2007 of Vengara Police Station for an offence under Section 20(b) ii A of NDPS Act and he was convicted and sentenced to pay a fine of 8,000/-. Similarly in Crime No.78/2008, of same₹

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Police Station he committed similar offence and he was found guilty and convicted to undergo rigorous imprisonment for six months and also to pay a fine of ₹ 10,000/-. He was also detained for six months under the provisions of 'KAAPA' Act as well. Instead of these things, he had committed the present crime as well.

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Section 60 of the NDPS Act deals with power

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of confiscation, which reads as follows:

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60. Liberty of illicit drugs, substances, plants, articles and conveyances to confiscation .- [(1) whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offences has been committed, shall be liable to confiscation.]

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(2) Any narcotic drug or psychotropic substance [or controlled substances] lawfully produced, imported interState, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance [or controlled substances] which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance [ or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.

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(3) Any animal or conveyance used in carrying, any narcotic drug or psychotropic substance [or controlled substance], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.”

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Section 63 deals with the procedure to be followed for this purpose. It is seen from the impugned order that, since the vehicle is liable to be forfeited and confiscated, it is not proper to grant interim custody in this case. Further it is also mentioned that, the vehicle is likely to be used by the petitioner for committing similar offences as well. So considering the previous conduct of the petitioner, the impression created in the mind of the lower court that, this vehicle is likely to be used for committing similar offences cannot be said to be not genuine. So under the circumstances, I feel that, there is no illegality committed by the court below in passing Annexure-B order,

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rejecting the claim of the petitioner for interim custody, calling upon interference of this court for under Section 482 of the ‘Code’. So the application lacks bona-fides and the same is liable to be dismissed. In the result, the petition is dismissed.

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Sd/-

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K. Ramakrishnan, Judge

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// True Copy //

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P.A. to Judge

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Ubaid v. State of Kerala

Case brief

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What the court decided

Ubaid v. State of Kerala

Case brief

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