The Kerala High Court directed to release of the bus confiscated under the Narcotic-Drugs-and-Psychotropic-Substances-Act-1985 (NDPS Act) for carrying dried ganja after depositing a bank guarantee prescribed by law.
Prasad K R, the petitioner prayed for the order issued by the Sessions Court-IV, Palakkad in Crl. Mis. Petition. No.3068/2023 on 26.08.2023 as patently arbitrary and unjust. The Sessions Court Palakkad dismissed an application filed by the petitioner under Section 457 Cr. P.C. to release a vehicle bearing Registration No.KL-40/H-0452 which was seized in connection with Crime No.47 of 2021 of Excise Enforcement & Anti-Narcotic Special Squad, Palakkad which is now pending as Sessions Case No.214 of 2022.
The prosecution case is that accused 1 to 10 entered into a criminal conspiracy for possession and transportation of Ganja. Under the conspiracy, while they were transporting Ganja on 12.09.2021 at about 7.25 am along the Salem -Kanyakumari National Highway at Padinjare Yakkara, the Excise Circle Inspector, Excise Enforcement Squad intercepted the tourist bus bearing Reg.No. KL-40/H-452 driven by the 1st accused and cars. In search of a tourist bus, the Circle Inspector seized 82.5 kg of dried Ganja. It was the prosecution case that the 1st accused as per the direction of the 6th accused transported the Ganja from Andhra Pradesh with the assistance of accused Nos.2 to 6, 9 and 10.
The petitioner submitted that the vehicle was hypothecated with Cholamandalam Investment and Finance Company Ltd. Thereafter, he had agreed sale of his vehicle bearing Reg.No.KL-40/H-0452 with one T.C.Thomas. The said T.C.Thomas was operating the aforesaid bus on contract carriage by conducting regular service between Uzhavur in Kottayam District to the North Eastern States in India.
The petitioner was not aware of the seizure of the vehicle in the further submission. The said T.C.Thomas did not inform the petitioner about the seizure of the vehicle. He came to know about the seizure only on 25.10.2021 when he had received notice from the Special Squad. The said T.C.Thomas not only violated the terms of the agreement by committing default in repayment of the loan but also permitted the vehicle to be used by the accused in the above crime for the conveyance of contraband without the knowledge of the petitioner.
Subsequently, it is submitted that the petitioner cleared the entire loan amount due to the Finance Company on 15.10.2022. Therefore, it is submitted that the petitioner is the best person, who is entitled to the custody of the vehicle.
The Sessions Judge dismissed the petition stating that the vehicle was used as conveyance for carrying the contraband. The court below also found that even as per the seizure mahazar, the contraband article (Ganja) was kept in sacks inside the goods carriage box of the bus bearing reg.No.KL-40/H-0452 from where it was transferred to other vehicles, which means that the bus was used for carrying contraband
The Sessions Judge, after going through records, found that the vehicle is used for the conveyance of the contraband and therefore, the interim custody cannot be given. The Sessions Judge also relied on the judgment of this Court in Shanil v. State of Kerala.
The counsel for the petitioner submitted that the petitioner is ready to furnish the bank guarantee for the value of the vehicle as assessed by the competent authority and the petitioner may be given the vehicle. It is also submitted that the confiscation proceeding has not started. In the light of the above submission, this Court again considered the matter.
If the vehicle is used for conveyance of contraband articles under the NDPS Act, the vehicle can be confiscated. But till the proceedings are concluded, there is no prohibition in releasing the vehicle under section 451 Cr. P.C after imposing stringent conditions, if the petitioner is ready to furnish the bank guarantee for the value of the vehicle which is to be assessed by the competent authority.
There can be a direction to release the vehicle on condition that the petitioner will not repeat the offence using the vehicle and if such a situation arises, the court can repossess the vehicle. Similarly, if the confiscating authority ordered confiscation, the bank guarantee can be invoked by law. While releasing the vehicle, the learned Sessions Judge will impose appropriate conditions.
While setting aside the order, the single bench of Justice P V Kunhikrishnan directed the Additional Sessions Judge-IV, to get a valuation certificate of the vehicle from the competent authority and if the petitioner is ready to furnish a bank guarantee for the value of the vehicle, the vehicle shall be released to the petitioner, after imposing appropriate conditions as held by the Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat.
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