S.52A NDPS Act Not Bar To Grant Interim Custody Of Seized Vehicles U/S 457 CrPC: Kerala High Court

The Kerala High Court on Monday held that jurisdictional courts, such as the Special Court and Magistrate Court, are vested with the power to grant interim custody of vehicles seized in connection with offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS) under Section 457 CrPC, irrespective of the procedure for disposal stipulated in Section 52A of the Act.

Justice V.G. Arun arrived at the above finding while noting that the Apex Court had, in Sainaba v State of Kerala & Anr. (2022), reversed the finding in Shajahan v. Inspector of Excise (2019), that Magistrates were denuded of the power to grant interim custody under Section 451 CrPC. 

"...the appeal (in Sainaba) was allowed and direction to release the vehicle issued, after taking note of the legal provisions, viz, Section 36C r/w 51 of the NDPS Act and Section 451 Cr.P.C. As such, there is an implied reversal of the dictum in Shajahan (supra) by virtue of Article 141 of the Constitution of India. I also take note of the judgment in Pradeep B. v District Drug Disposal Committee and others (WA No.1304/2022 of High Court of Kerala), wherein, a Division Bench headed by the Chief Justice expressed the opinion that Shajahan (supra) requires reconsideration and directed a Full Bench to be constituted". 

The Court herein was dealing with a batch of petitions, wherein the petitioners were owners of vehicles that had been seized in connection with crimes registered under the NDPS Act. In most of the cases, the applications of the petitioners seeking interim custody of the vehicles were rejected following the dictum in Shajahan case that following the introduction of Section 52A of the Act, and the decision of the Apex Court in Union of India v Mohanlal & Anr. (2016), Magistrates would be denuded of their power to consider such a claim. The petitioners were accordingly, directed to approach the Drug Disposal Committee (DDC) for the same. 

Arguments Advanced

The petitioner's assailed the order of rejection and the direction to approach the DDC on various grounds. It was contended that in in Mohanlal case, the Apex Court had only dealt with the manner in which Section 52A of the Act is to be given effect and not with the power of the jurisdictional courts to grant interim custody. It was thus contended that the Division Bench had erred in holding that the Magistrates Courts were denuded of the power to order interim custody of vehicles. It was also pointed out that the correctness of Shajahan case was doubted by another Division Bench, and had been referred to a Full Bench. The counsels also referred to Sections 36C and 51 to bolster their argument that the provisions of the Code are applicable at all stages of proceedings under the Act. The counsels further relied on Sections 60 and 63 of the Act to contend that the DDC could dispose of the conveyance only after the trial is concluded. Various judgments were also relied upon to contend that the directions in Mohanlal case does not create any embargo against the exercise of power under Sections 451 and 457. 

Additionally, the decision in Smart Logistics v. State of Kerala (2020)  was also relied on to contend that, merely for reason of the contraband had been recovered from personal possession of the driver or passengers, the vehicle cannot be termed as 'conveyance', unless the vehicle is found to have been used in carrying the contraband. 

On the other hand, the Public Prosecutor argued that the contentions could not be countenanced in view of the separate procedure prescribed in Section 52A for disposal of seized conveyances, and the direction in Mohanlal (supra), as explained in Shajahan (supra). It was further argued that the interim release of the seized vehicles could result in the crimes being repeated. 

Findings of the Court:

A. The Jurisdictional Courts are not Denuded of the Power to Grant Interim Custody of Seized Vehicles

The Court noted that the exponential increase in crimes under the NDPS Act has resulted in innumerable vehicles being seized. It is in this context and on noting that even police station premises were bursting with such vehicles that the Court had issued the directions under Section 52A. The Court noted that under Sections 60(3) and first proviso to Section 63(2), an opportunity of hearing to the owner of the vehicle before confiscation has been afforded. In Smart Logistics case also, it had been held that the principles of natural justice were inbuilt in Section 52A. The Court thus discerned that before disposing of the vehicles, the Drug Disposal Committee ought to afford an opportunity of hearing to the owners of the vehicles. "The question therefore is whether the seized vehicles should be left idle till the legal formalities are completed, resulting in the vehicles getting damaged and huge public space being taken up", it ascertained. 

The Court perused Sections 36C, 51, and 60(3) of the Act to find that Section 52A that deals with only disposal of contraband, their packages and conveyances could not hve any impact on the power of jurisdictional courts to grant interim custody of vehicles. "The Drug Disposal Committees are not seen empowered to consider the question whether the vehicle is 'conveyance' used in transporting the contraband or whether the vehicle was put to such use, in spite of the owner or agent having taken all precautions to prevent it", it observed.

The Court also perused the Apex Court decision in Sainaba case  to conclude that the jurisdictional courts have the power to grant interim custody under Section 457 Cr.P.C, irrespective of the procedure for disposal stipulated in Section 52A of the Act. 

The Court however, refrained from delving on the question as to whether the seized vehicles could be termed as 'conveyance' used in carrying contraband, and ascertained that it was for the jurisdictional courts to decide on the same depending on the facts of each case. The Court added that the complicity or otherwise of the owner, stipulated in Section 60(3), was also an aspect that the jurisdictional courts could consider. 

The petitioners were thus permitted to submit applications seeking interim custody before the jurisdictional courts. The jurisdictional courts were directed to consider the applications on merits and pass reasoned orders de hors dismissal of the earlier applications. 

B. Mere Reason of Consumption of Drugs Inside a Vehicle Does Not Make it 'Conveyance' for Transportation of the Contraband

The Court also considered a case wherein a friend of one of the owners of a vehicle that had been seized had borrowed the vehicle, and left it unlocked on the side of the road. Once the petitioner's friend had left, the accused in W.P. (Crl. 1189/2022) got into the vehicle and started smoking ganja beedi. The police apprehended the accused, registered the crime and seized the vehicle. When the petitioner moved an application seeking interim custody of the vehicle under Section 451, the same was dismissed relying on Shajahan case.  The case was subsequently dismissed imposing a fine of Rs. 2000 on the accused. 

The petitioner contended that since the accused was only charged for offence under Section 27, the question of seizing the vehicle terming it as 'conveyance' would not arise. 

"Section 27 deals with only consumption of drug or narcotic substances. By mere reason of such consumption being from inside a vehicle, the vehicle cannot be termed as a 'conveyance' used in transportation of the contraband. As such there is no justification in having seized the petitioner's vehicle for reason of the accused having smoked or consumed ganja, while sitting inside the vehicle. Any other interpretation may lead to the situation like the one under consideration, where the accused are let off with a fine of Rs.2000/- and  the vehicle of an innocent owner is left to rot". 

The Court found no reason for the vehicle being detained after the case itself had ended, and thereby directed the JFCM, Wadakkanchery to pass appropriate orders for the release of the vehicle to the owner's custody.

Case Title: Shanil v. State of Kerala & Anr. and other connected matters

Citation: 2023 LiveLaw (Ker) 88 

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