Allowed

Riyas Ali.M v. State of Kerala

Kerala HC6 Mar 2023WP(Crl.)/23/2023

Case brief

AI extract

What is this about?

The Court directed the petitioner to file a petition for interim custody of a seized vehicle under Section 457 Cr.P.C. before the Magistrate, holding that this remedy is available to non-accused owners seeking release temporarily. The Court clarified that the Drug Disposal Committee lacks authority to grant such interim custody.

What did the court decide?

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

Riyas Ali.M 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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MONDAY, THE 6^TH DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 WP(CRL.) NO. 23 OF 2023

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PETITIONER:

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RIYAS ALI.M AGED 32 YEARS S/O SAIDALAVI.M, RESIDING AT MUTHUVATTIL HOUSE, KURUMBATHUR, PUNNATHALA P.O, PUTHANATHANI, KALPAKANCHERRY, MALAPPURAM DISTRICT, PIN - 676552

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BY ADVS. J.R.PREM NAVAZ SUMEEN S. IRSHAD K.K. MUHAMMED SWADIQ SRUTHI S. SEKHAR

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAURAM-, PIN - 695001 2 THE SUB INSPECTOR OF POLICE TIRUR POLICE STATION, MALAPPURAM DISTRICT, PIN - 676101 3 THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES AND CONVEYANCE DISPOSAL COMMITTEE MALAPPURAM DISTRICT, REPRESENTED BY THE DISTRICT POLICE CHEIF, MALAPPURAM DISTRICT, PIN - 676509 4 THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM, PIN - 695001 BY ADV PUBLIC PROSECUTOR

OTHER PRESENT:

W.P.(Crl.) 23/2023

PP M.C.ASHI

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON 06.03.2023 DELIVERED THE FOLLOWING:

W.P.(Crl.) 23/2023

JUDGMENT

Dated this the 6^th day of March , 2023

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The petitioner's Toyota Fortuner vehicle bearing Reg. No. KL-33-B-5678 was seized in connection with Crime No. 571 of 2022 of Tirur Police Station. The crime is registered on the allegation that at 00.40 hrs. on 07.07.2022, MDMA and Hasish oil were recovered from accused Nos. 1 and 2 while they were travelling in the petitioner's vehicle. The petitioner is not an accused in the crime.

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According to the petitioner, when the first accused, a person known to him, had come down on leave from abroad, he requested the petitioner for the vehicle to visit his friends and relatives. As the petitioner found nothing suspicious about the request, the vehicle was handed over for temporary use. The petitioner had no clue that the vehicle would be misused by the first accused, that too for committing the heinous crime of drug trafficking. Pointing out these aspects and requesting to release his vehicle on interim custody, the petitioner approached the jurisdictional court. But the learned

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W.P.(Crl.) 23/2023

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Judge refused to entertain the petition on the premise that the petitioner's remedy is to approach the Drug Disposal Committee. Accordingly, the petitioner filed Ext.P3 petition before the third respondent. While the petition was pending before the DDC, the Hon'ble Supreme Court rendered the judgment in Sainaba v. State of Kerala (2022(7) KHC 273) holding the provisions of the Code of Criminal Procedure to be applicable to proceedings before the Special Court under the NDPS Act, in view of Section 36C of the NDPS Act read with Section 31. Therefore, this writ petition is filed seeking a direction to the third respondent to release the vehicle to the petitioner.

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Heard Adv. J.R. Prem Navaz for the petitioner and Public Prosecutor Adv. M.C. Ashi for the respondents.

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As rightly contended by the learned Counsel for the petitioner, the decision in Shajahan v. Inspector of Excise and Ors. (2019 (4) KLT 507) stands impliedly reversed by the decision in Sainaba (supra). It has been so held by this Court in Shanil and Ors. v. State of Kerala and Ors. (2023/KER/9753). As such, the special Court is empowered to

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W.P.(Crl.) 23/2023

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entertain an pass orders in petitions seeking interim custody filed under Section 457 Cr.P.C. At the same time, the Drug Disposal Committee cannot direct release of the vehicle on interim custody, since the Committee is not vested with any such power under Section 52A of the NDPS Act.

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In the result, this writ petition is disposed of permitting the petitioner to file a petition for interim custody under Section 457 Cr.P.C. and directing the learned Magistrate to consider that petition on merits, de hors the dismissal of the earlier petition under Section 451 Cr.P.C.

Sd/-

V.G.ARUN JUDGE

W.P.(Crl.) 23/2023

APPENDIX OF WP(CRL.) 23/2023

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PETITIONER EXHIBITS

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Exhibit P1 THE TRUE COPY OF THE FIR AND THE FINAL REPORT IN CRIME NO: 571 OF 2022 OF TIRUR POLICE STATION MALAPPURAM DISTRICT Exhibit P2 THE TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE Exhibit P3 THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 60(3) OF THE NDPS ACT AND PENDING BEFORE THE 3RD RESPONDENT

Riyas Ali.M v. State of Kerala

Case brief

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Riyas Ali.M v. State of Kerala

Case brief

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