Allowed

Rahul K Prathapan v. State of Kerala

Kerala HC2 Mar 2023WP(Crl.)/109/2023

Case brief

AI extract

What is this about?

The court permitted the petitioner, whose vehicle was seized during an NDPS investigation where he was not an accused, to file a fresh petition for interim custody under Section 457 Cr.P.C., noting that earlier dismissal under Section 451 was erroneous.

What did the court decide?

Petitioner permitted to file petition for interim custody under Section 457 Cr.P.C.; Magistrate directed to consider it on merits.

Rahul K Prathapan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2023)

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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 V.G.ARUN

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THURSDAY, THE 2^ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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WP(CRL.) NO. 109 OF 2023

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PETITIONER:

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RAHUL K PRATHAPAN, AGED 30 YEARS S/O. PRATHAPAN, KAROLLI HOUSE, SEASHORE ROAD, NJARAKKAL P.O, ERNAKULA DISTRICT-682505, PIN - 682505

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BY ADVS. THOMAS ABRAHAM (NILACKAPPILLIL) ARUN TOM PHILIP

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, PIN - 682031

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2 THE DRUG DISPOSAL COMMITTEE ERNAKULAM RURAL, ALUVA REPRESENTED BY ITS CHAIRMAN, REPRESENTED BY GOVERNMENT PLEADER,HIGH COURT OF KERALA, PIN - 682031

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OTHER PRESENT:

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SRI. M.C. ASHI, PP

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THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(Crl.)109/2023

JUDGMENT

Dated this the 2^nd day of March, 2023

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The petitioner's car bearing Registration No. KL-35-G0658 was seized in connection with Crime No. 552 of 2022 of Njarakkal Police Station. The crime is registered for the offence punishable under Section 22(a) of the Narcotic Drugs and Psychotropic Substances Act on the allegation that, the accused was found in possession of 0.30 gms of MDMA in his purse which was kept in the dashboard of the car and the vehicle was also seized by the police. The petitioner is not an accused in the crime.

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According to the petitioner, on 29.04.2022 his neighbour borrowed the car for taking his pregnant wife to the hospital. Although, the petitioner moved a petition before the Sessions Court, Ernakulam for release of the vehicle, by Ext. P5 the same was disposed of stating that it has no jurisdiction under Section 451 of Cr.P.C. Thereafter, the

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W.P.(Crl.)109/2023

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petitioner submitted an application before the Drug Disposal Committee seeking release of the vehicle. However, the DDC decided to confiscate and dispose of the vehicle vide Ext.P7 order. Aggrieved, this writ petition is filed.

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A perusal of Ext. P5 order shows that the petition seeking interim custody was dismissed, mainly relying on the decision in Shajahan v. Inspector of Excise and Ors. [2019 (5) KHC 401). This Court in Shanil and Ors. v. State of Kerala and Ors. (2023/KER/9753) has held Shajahan (supra) to have been impliedly reversed by the Supreme Court in Sainaba v. State of Kerala (2022 (7) KHC (SC)). It is also held that, when petitions seeking interim custody are filed under Section 457 Cr.P.C., the jurisdictional Magistrate or Special Judge, as the case may be, should consider the petition on merits.

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Following the judgment in Shanil and Ors (supra), this W.P.(Crl.) is disposed of, permitting the petitioner to file a petition for interim custody under Section 457 Cr.P.C. and

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W.P.(Crl.)109/2023

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directing the learned Magistrate to consider that petition on merits, de hors the dismissal of the earlier petition under Section 451 Cr.P.C.

Ordered accordingly.

Sd/-

V.G.ARUN JUDGE

W.P.(Crl.)109/2023

APPENDIX OF WP(CRL.) 109/2023

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PETITIONER EXHIB	ITS
Exhibit-P1	THE TRUE COPY OF THE REGISTRATION CERTIFICATE OF TOYOTA INNOVA CAR BEARING THE REGISTRATION NUMBER KL-35-G-0658.
Exhibit-P2	THE TRUE COPY OF THE SEIZURE MAHAZAR DATED 29-4-2022.
Exhibit-P3	THE TRUE COPY OF THE FIR IN CRIME NO.552 OF 2022 OF NJARAKKAL POLICE STATION DATED 30-4- 2022.
Exhibit-P4	THE TRUE COPY OF DISCHARGE SUMMARY AND MEDICAL RECORDS OF MRS. ROSEMOL RAHUL ISSUED FROM LISIE HOSPITAL, ERNAKULAM DATED 5-5-2022
Exhibit-P5	THE TRUE COPY OF THE ORDER DATED 10-6-2022 IN CRL.M.P NO.1316/2022 OF THE HON'BLE SESSIONS COURT, ERNAKULAM (SPECIAL COURT FOR THE TRIAL OF NDPS CASES).
Exhibit-P6	THE TRUE COPY OF PETITION AND ANNEXURES SUBMITTED BEFORE THE CHAIRMAN, DRUG DISPOSAL COMMITTEE, ERNAKULAM RURAL DATED 6-7-2022.
Exhibit-P7	THE TRUE COPY OF ORDER NO.D1(A)-48213/2022/E. DATED 29/11/2022 OF DRUG DISPOSAL COMMITTEE (DDC), ERNAKULAM RURAL

Rahul K Prathapan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rahul K Prathapan v. State of Kerala

Case brief

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