When Drug Was Recovered On Driver's Body Search, It Can't Be Held That Vehicle Was Used For Conveying Contraband : Kerala High Court

The Kerala High Court Monday considered the legal question that whether in a case of recovery of contraband on driver's body search, it would be fair to hold that the vehicle also had been used for the purpose of conveying the contraband.

Justice A. Badharudeen said when contraband is recovered on search of a person, who is driving the vehicle alone, after compliance of Section 50 of NDPS Act, it would not be safe to hold that vehicle also was used for transporting the drug so as to make the vehicle a subject matter of confiscation.

"In such circumstances, it has to be held that, the contraband was kept in secrecy by the accused in his body though he had travelled in the vehicle. Viewing so, it cannot be said that, in the present case, the vehicle has been used as conveyance and the vehicle is a subject matter of confiscation."

The court was hearing an appeal of an accused against the dismissal of an application seeking interim custody of the car. The accused had been found in possession of 0.06 grams of LSD stamp in his wallet, while he was in the car. He had argued before the Special Court that the vehicle was never used as a conveyance to transport the contraband.

The trial court had said the vehicle could not be released since the materials available suggests that the vehicle was used to convey the contraband recovered from the accused. 

It was contended by the counsel representing the accused that even a meticulous reading of the recovery mahazar does not suggest that the vehicle was used as conveyance, so as to hold that it to be a subject matter of confiscation

On the other hand, the Public Prosecutor argued that the accused was intercepted while he was driving the car, and the same would indicate that the vehicle was used as a conveyance. 

The Court said the observations in Shajahan v. Inspector of Excise, Excise Enforcement & Anti Narcotic Special Squad Malappuram & Ors — wherein it was held that if the vehicle is a subject matter of confiscation, the power of the Court to consider a claim under Section 451 of Cr.P.C stands denuded, would apply only to a case where there is material to hold that the vehicle was used as a conveyance to carry the contraband. 

Observing that the Special Judge wrongly dismissed the application, the court set aside the order and directed the vehicle to be released to the petitioner on production of original RC Book and Insurance Certificate for verification before the Special Judge.

"Thereafter, the learned Special Judge shall release the car to the petitioner on executing bond for Rs.1,00,000/- (Rupees One Lakh Only) by the petitioner with two solvent sureties, each for the like amount to the satisfaction of the Special Court, undertaking to produce the vehicle before the Court, as and when directed," the court said.

The court further directed the petitioner to file an affidavit stating that the vehicle shall not be sold without the prior permission of the Special Court or till disposal of the case.

Petitioner was represented by Advocates T. SANJAY, P.P. NIYAS, SANIL KUMAR G. and MIDHUN R.

Government Pleader G. Sudheer represented the State.

Case Title: Wilson C.C. v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 627 

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