Dismissed

Sareena T.E., v. State Ofkerala

Kerala HC21 Jan 2020Crl.MC/8184/2019

Case brief

AI extract

What is this about?

The High Court dismissed a petition under Section 482 Cr.P.C. challenging an order confiscating a motorcycle in an NDPS case. The Court held that since the petitioner failed to file a regular appeal under Section 454 Cr.P.C., there were no exceptional circumstances to invoke inherent jurisdiction, and the petition was liable to be dismissed.

What did the court decide?

Petition dismissed; petitioner is at liberty to file appeal under Section 454 Cr.P.C. Confiscation proceedings kept in abeyance for three weeks.

Sareena T.E., Vs State Ofkerala — Narcotics (NDPS) | Kerala HC (2020)

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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 R. NARAYANA PISHARADI

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TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941

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Crl.MC.No.8184 OF 2019(C)

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AGAINST THE ORDER IN CMP 1728/2019 DATED 08-08-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, PERAMBRA

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NDPS CRIME NO.1/2019 OF Perambra Excise Range, Kozhikode

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PETITIONER/OWNER OF THE VEHICLE ORDERED TO BE CONFISCATED:

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SAREENA T.E., AGED 42 YEARS W/O.NOUSHAD, RESIDING AT THARAVATTAH HOUSE, P.O.NOCHAD, NOCHAD AMSOM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673 614.

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BY ADVS.

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SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.

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NAME AND ADDRESS OF THE RESPONDENT :

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STATE OFKERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031.

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SRI AJITH MURALI-PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.01.2020, THE COURT ON 21.01.2020 PASSED THE FOLLOWING:

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Crl.M.C.No.8184/2019

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R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.8184 of 2019

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Dated this the 21^st day of January, 2020

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O R D E R

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The petitioner is the mother of the accused in the case which was registered as NDPS Crime No.01/2019 of the Perambra Excise Range under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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The prosecution case is that, on 31.01.2019, at about 18.10 hours, the accused was found in possession of 20 grams of ganja by the Circle Inspector of Excise, Perambra while the accused was travelling on a motorcycle.

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After investigation, the Assistant Excise Commissioner, Kozhikode filed complaint against the accused in the court concerned. Cognizance of the offence was taken by the learned Magistrate. When the accused entered appearance and when particulars of the offence were read over to him and explained to

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Crl.M.C.No.8184/2019

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him, he pleaded guilty to the offence. Learned Magistrate sentenced him to pay a fine of Rs.5,000/- for the offence punishable under Section 20(b)(ii)(A) of the NDPS Act and in default of payment of fine, to undergo simple imprisonment for a period of one month.

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The petitioner filed an application under Section 452 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for releasing the motorcycle which was seized by the excise officials. She claimed that she is the registered owner of that vehicle. As per Annexure-A1 order, learned Magistrate dismissed the aforesaid application on the ground that the vehicle has to be confiscated to the Government. Learned Magistrate also ordered confiscation of the vehicle to the Government. The aforesaid order is challenged in this petition filed under Section 482 Cr.P.C.

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Heard learned counsel for the petitioner and the learned Public Prosecutor.

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Annexure-A1 order is one passed under Section 452 of the Code.

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Crl.M.C.No.8184/2019

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Section 452(1) of the Code provides that, when an

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enquiry or trial in any criminal court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

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A perusal of Section 452(1) of the Code would show

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that the trial court is competent to pass an order confiscating the property produced before it.

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Section 454(1) of the Code provides that, any person

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aggrieved by an order made by a court under Section 452 or Section 453, may appeal against it to the court to which appeals ordinarily lie from convictions by the former court.

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A perusal of Section 454(1) of the Code shows that any person who is aggrieved by an order passed under Section 452 of the Code can file an appeal against such order.

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In the instant case, there is nothing to show that the

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Crl.M.C.No.8184/2019

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petitioner had filed any appeal challenging Annexure-A1 order. There is no explanation as to why she rushed to this Court with a petition under Section 482 Cr.P.C without filing an appeal as provided under Section 454(1) of the Code. There are no exceptional circumstances in the case to invoke the power of this Court under Section 482 Cr.P.C in favour of the petitioner who has not availed of the regular remedy provided in the statute. Therefore, the petition is liable to be dismissed.

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Consequently, the petition is dismissed. The petitioner is at liberty to file appeal against Annexure-A1 order as provided under Section 454(1) of the Code. If the period prescribed for filing the appeal has expired now, she may file application before the appellate court to exclude the period during which this petition has been pending before this Court from calculating the period of limitation. Confiscation proceedings, if any, initiated by the appropriate authority, shall be kept in abeyance for a period of three weeks from today.

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

jsr

Crl.M.C.No.8184/2019

APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE A1 CERTIFIED COPY OF THE ORDER DATED 08/08/2019 IN C.M.P.NO.1728 OF 2019 PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, PERAMBRA, KOZHIKODE DISTRICT.

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RESPONDENT'S EXHIBITS: NIL

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TRUE COPY

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PS TO JUDGE

Sareena T.E., v. State Ofkerala

Case brief

What is this about?

What did the court decide?

Sareena T.E., v. State Ofkerala

Case brief

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What did the court decide?

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