Kerala High CourtAshik Niyas vs State Of Kerala on 5 November, 2021Author:Mary JosephBench:Mary JosephIN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n                                    PRESENT\n\n                    THE HONOURABLE MRS. JUSTICE MARY JOSEPH\n\n           FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943\n\n                            CRL.MC NO. 5125 OF 2021\n\n AGAINST THE ORDERS IN CRL.M.P NO.1923/2020 OF THE COURT OF SESSIONS (VACATION\n\n  COURT), ERNAKULAM & CRL.M.P NO.986/2021 OF THE COURT OF SESSIONS, ERNAKULAM.\n\n         (NDPS CRIME NO.27/2019 OF EXCISE CIRCLE OFFICE, KUNNATHUNADU.)\n\n\n\nPETITIONER/REGISTERED OWNER OF THE VEHICLE:\n\n            ASHIK NIYAS,\n            AGED 26 YEARS,\n            S/O. NIYAS, PUTHUPARAMBIL HOUSE,\n            PONKUNNAM P.O.,\n            KOTTAYAM-686506.\n\n             BY ADVS.\n             SHABU SREEDHARAN\n             VARADA SURENDRAN\n             SHYAM KUMAR M.P\n             MOHAMED SHAREEF PARIYARATH\n\n\nRESPONDENT/COMPLAINANT:\n\n             STATE OF KERALA,\n             REPRESENTED BY THE PUBLIC PROSECUTOR,\n             HIGH COURT OF KERALA,\n             ERNAKULAM-682031.\n\n\n\n             SMT.T.V.NEEMA (SENIOR PUBLIC PROSECUTOR)\n\n\n\n      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.11.2021, THE\n\nCOURT ON THE SAME DAY PASSED THE FOLLOWING:\n CRL.MC NO.5125/2021                     2\n\n\n\n\n                                   ORDERDated this the 05th day of November, 2021.This petition is filed challenging two orders passed by Court of\n\n     Sessions, Ernakulam in Crl.M.P Nos.1923/2020 on 09.04.2021 and\n\n     986/2021 on 22.07.2021, the true copies of which are produced\n\n     alongwith the petition on hand as Annexures. 3 and 5. The reliefs\n\n     sought in the application are to set aside Annexures- 3 and 5 orders\n\n     and to pass appropriate orders to see that the entire proceedings\n\n     against the petitioner are dropped on payment of Rs.50,000/- as\n\n     penalty.2.    The petitioner was the registered owner of an Innova Car\n\n     bearing Registration No.KL-08/AF 3122. The vehicle has been used\n\n     by the petitioner for his business and domestic purposes.         The\n\n     vehicle got involved in an offence coming under theNarcotic Drugs\n\n     and Psychotropic Substances Act, 1985(for short, 'theNDPS Act')\n\n     and the same was seized by Excise Circle Inspector, Kunnathunadu.\n\n     Petitioner is not an accused in the said crime and therefore he has\n\n     moved an application seeking for getting the vehicle in his interimCRL.MC NO.5125/2021                           3custody as Crl.M.P No.2404/2019.                  The Court of Sessions,\n\n     Ernakulam has passed an order in the application on 19.10.2019, the\n\n     copy of which is appended to the petition on hand as Annexure-1.\n\n     The above application was filed underSection 451of the Code of\n\n     Criminal Procedure, 1973 (for short, 'theCr.P.C) seeking to get\n\n     release of the Innova Car, which has been seized in Crime\n\n     No.27/2019 of Excise Circle Office, Kunnathunadu. The Court of\n\n     Sessions, Ernakulam after perusing the records of the case and also\n\n     the pleadings of the parties, have passed Annexure-1 order, directing\n\n     release of the vehicle in interim custody on the following conditions;"1.    The petitioner shall execute a bond for Rs.5,00,000/- with\n            two solvent sureties for the like sum each to the satisfaction of\n            this court.2. The petitioner shall produce the vehicle before the Court\n            during the course of enquiry, trial or confiscation proceedings as\n            and when required by the court.3. The petitioner shall not sell or otherwise transfer the vehicle in\n            favour of the third party without the permission of the court.4.The petitioner shall not make any change so as to make it\n            unidentifiable.5. The petitioner shall not use the vehicle in any similar offence."CRL.MC NO.5125/2021                     43.    The petitioner had executed a bond for Rs.5,00,000/-\n\n     with two solvent sureties each for the like sum to the satisfaction of\n\n     the court. A direction was also issued by the order to the petitioner\n\n     to produce the vehicle before the court during the course of enquiry,\n\n     trial or confiscation proceedings as and when required by the court.4.    The order directing release of the vehicle involved in an\n\n     NDPS crime, in interim custody is not a legal and proper one.Under the NDPS Act, power is not conferred on a court to pass\n\n     orders granting interim custody of the vehicle in exercise of\n\n     jurisdiction underSection 451Cr.P.C. However, court of Sessions,\n\n     Ernakulam has passed Annexure-1 order directing release of the\n\n     vehicle in interim custody.    The order has not been taken up in\n\n     challenge by the State. Therefore, the petitioner, who has been\n\n     granted interim custody of the vehicle has been possessing and\n\n     enjoying the use of the vehicle taking benefit of the order. The\n\n     petitioner cannot now turn round and submit that he is not bound\n\n     by the direction in the order granting interim custody to produce the\n\n     vehicle on an order being issued in that respect.   It is pertinent to\n\n     note that Crl.M.P No.1923/2020 is an application filed before the\n\n     court by the Investigating Officer seeking for a direction to theCRL.MC NO.5125/2021                        5petitioner herein for production of the vehicle so as to get it released\n\n     to the Excise Deputy Commissioner, Ernakulam, who is none other\n\n     than the Chairman of the pre-trial Disposal Committee. In the\n\n     application, notice was served to the accused and the petitioner\n\n     herein, but the petitioner failed to appear in response to the notice\n\n     and to file any objection also.5.    In the above context, the Court of Sessions (Vacation\n\n     Court, Ernakulam) has passed           Annexure-3 order allowing the\n\n     application. Since the petitioner has not turned up to produce the\n\n     vehicle as directed in Annexure-3 order, the court was constrained\n\n     to issue Annexure-5 order. Annexure-5 order was passed in Crl.M.P\n\n     No.986/2021 whereby the Investigating Officer has sought for\n\n     permission to forfeit the         bond amount for the failure of the\n\n     petitioner to produce the vehicle which he was called upon by\n\n     Annexure-3 order. The court has found that a bond was executed by\n\n     the petitioner for Rs.5,00,000/- for complying with the directions\n\n     issued by Annexure-1 order and for his failure, has ordered the bond\n\n     to be forfeited, which is the legal consequence to be followed in the\n\n     context. Accordingly, the petitioner was directed to pay penalty of\n\n     Rs.5,00,000/-. The petitioner has raised several grounds in theCRL.MC NO.5125/2021                      6petition such as outbreak of Covid-19 pandemic and the resultant\n\n     lockdown and its adverse impact on his business and damages\n\n     resulted to his vehicle due to his non-use. According to him, the\n\n     vehicle would fetch only a scrap value of Rs.50,000/- and therefore,\n\n     the court below has gone wrong in issuing Annexures- 3 and 5\n\n     orders.This Court cannot help the petitioner for the reason that at the\n\n     time of release of the vehicle in interim custody itself, the petitioner\n\n     had undertaken by the bond executed by him that he would obey the\n\n     directions issued by the order. Evenafter receipt of Anneuxre A3\n\n     notice also, he disobeyed the direction issued by the court.    He did\n\n     not appear before the court and file any objection. Therefore, the\n\n     court was constrained to issue Annexure-3 and 5 orders. There is\n\n     nothing illegal in the orders to be interfered with.         Therefore,\n\n     Crl.M.C on hand is dismissed in limine.Sd/-MARY JOSEPH\n\n                                                      JUDGE\n     JJCRL.MC NO.5125/2021                        7APPENDIX OF CRL.MC 5125/2021PETITIONER'S ANNEXURE\n\n\nANNEXURE- 1              THE TRUE COPY OF THE ORDER OF THE SESSIONS COURT,\n                         ERNAKULAM IN CRL. MP NO.2404/2019 IN NDPS CRIME\n                         NO.27/2019 OF EXCISE CIRCLE OFFICE, KUNNATHUNADU DATED\n                         19/10/2019.ANNEXURE- 2              THE TRUE COPY OF THE CRL. MP NO. 1923/2020 IN NDPS\n                         CRIME NO.27/2019 OF EXCISE CIRCLE OFFICE, KUNNATHUNADU\n                         ALONG WITH THE AFFIDAVIT THEREIN DATED 29/12/2020.\n\nANNEXURE- 3              THE CERTIFIED COPY OF THE ORDER OF THE 1ST ADDITIONAL\n                         SESSIONS JUDGE-VIII IN CHARGE OF THE SESSIONS JUDGE,\n                         ERNAKULAM IN CRL. MP NO.1923/2020 DATED 09/04/2021.\n\nANNEXURE- 4              THE TRUE COPY OF THE CRL. MP NO.986/2021 IN NDPS CRIME\n                         NO. 27/2019 OF EXCISE CIRCLE OFFICE, KUNNATHUNADU\n                         ALONG WITH THE AFFIDAVIT THEREIN DATED 24/05/2021.\n\nANNEXURE- 5              THE CERTIFIED COPY OF THE ORDER OF THE SESSIONS COURT,\n                         ERNAKULAM IN CRL. MP NO.986/2021 DATED 22/07/2021.\n\n\nRESPONDENT'S ANNEXURE :NIL\n\n                                                              //TRUE COPY//\n\n                                                            PA (GR.II)TO JUDGE