IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 Crl.MC.No. 2366 of 2009 --------------------------------------- CRIME NO.134/2009 OF WALAYAR POLICE STATION ............... PETITIONER: UMAPATHY, S/O.BALASUBRAMANIAN, DOOR NO.112, S.N.T.ROAD, TIRUCHANGODE, TAMIL NADU. BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENT: STATE OF KERALA, (S.I. OF POLICE, WALAYAR POLICE STATION), PALAKKAD, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2366 of 2009 -------------------------- ORDER Lorry TDM 6576 was seized by the police at Walayar Check Post on 19.4.2009 for transporting narcotic drug and registered Crime No.134/2009 of Walayar Police Station under Section 102 of Code of criminal Procedure. Petitioner, claiming to be the registered owner, filed Crl.M.P.No.2403/2009 before Judicial First Class Magistrate's Court-I, Palakkad under Section 451 of Code of Criminal Procedure for interim custody of the vehicle. Learned Magistrate, under Annexure-C order, dismissed the petition as Assistant Public Prosecutor opposed the petition on the ground that the vehicle was used for transporting white powder which could be a narcotic drug and stated that the sample was sent to the Laboratory and the report is awaited. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-C order and to grant CRMC 2366/09 2 interim custody of the vehicle. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner submitted that since 19.4.2009 the vehicle is in the custody of the police and petitioner is prepared to abide by any condition and even if it is a narcotic drug, before confiscation, petitioner is entitled to establish that the narcotic drug was transported in the vehicle without his knowledge or permission and in such circumstances, he is entitled to get interim custody of the vehicle. 4. Learned Public Prosecutor submitted that the report received from the Forensic Science Laboratory shows that the white powder transported in the vehicle was opium derivative and in such circumstances, as provided under Section 60(3) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act'), the vehicle is liable for confiscation and therefore, CRMC 2366/09 3 petitioner is not entitled to get interim custody of the vehicle. 5. Sub-section (3) of Section 60 of the Act provides that any animal or conveyance used in carrying any narcotic drug or psychotropic substance or any article liable to confiscation, shall be liable for confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself or his agent, if any, and the person in charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use. 6. In such circumstances, learned Magistrate was not justified in dismissing the petition for the reason that the vehicle is liable for confiscation. As provided under Section 60(3) of the Act, before ordering confiscation, an opportunity is to be granted to the registered owner to prove that the article carried in the CRMC 2366/09 4 vehicle was without his knowledge or permission. In such circumstances, Annexure-C order, dismissing the petition for interim custody of the vehicle is illegal. Learned Magistrate is competent to grant interim custody of the vehicle to the petitioner on furnishing sufficient bank guarantee to the value of the vehicle. Therefore, petition is allowed. Annexure-C order is quashed. Learned Magistrate is directed to consider whether petitioner is the registered owner of the vehicle or not and if so, whether, he is entitled to get interim custody of the vehicle on sufficient conditions, without further delay. 15th October, 2009 (M.Sasidharan Nambiar, Judge) tkv