IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3746 of 2008() ------------------------------ ((CRL.M.P. 724 OF 2008 IN SC 18 OF 2006 OF SPECIAL JUDGE (NDPS ACT CASES), VADAKARA) REVN. PETITIONER(S): PETITIONER ------------------------------- SHOUKATH ALI, S/O.MOIDU, ARATHIL HOUSE, PERUMANNA.P.O, KOZHIKODE.(REGISTERED OWNER OF THE AUTORICKSHAW BEARING REG.NO.KL-11/R.1650,) BY ADV. SRI.R.SUDHISH RESPONDENT(S): COMPLAINANT -------------------------- 1. THE STATION HOUSE OFFICER, KASABA POLICE STATION, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3746 OF 2008 ............................................ DATED THIS THE 28th DAY OF NOVEMBER, 2008 ORDER Revision petition is filed challenging the order passed by Special Judge, (NDPS Act Cases), Vadakara confiscating Autorikshaw KL 11 R/1650 belonging to revision petitioner under Section 63 of N.D.P.S Act. S.I of Police, Kasba police station, on 1.9.2005, at about 6 pm, while on patrol duty, getting information that ganja is being sold in an autorickshaw near Tanishka Jewellery, proceeded to the spot and found the two accused in S.C.18 of 2006 inside the autorickshaw. One of them was in the seat of the driver and the other, sitting on the back seat with a packet which on interception was found to be ganja. They were arrested and the autorickshaw was seized. After investigation, charge was laid for the offence under Section 20 (b) and (ii)A of N.D.P.S Act. Learned Special Judge, after trial, convicted the accused for the offence under Section 20(b)(ii)A of NDPS Act. The autorickhaw which was produced before court was earlier granted on interim custody to revision petitioner, the registered owner who was also examined in the case as PW9. Learned Special Judge rejected the claim raised by revision CRRP 3746/2008 2 petitioner for the vehicle holding that it is liable to be confiscated. The order is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. The judgment of learned Special Judge in S.C.18 of 2006 establish that prosecution has no case that autorickshaw KL 11 R 1650 was used for either transporting a narcotic drug or for selling a narcotic drug, either with the knowledge or connivance of the registered owner of the vehicle. If it is otherwise, revision petitioner would have been a co-accused in the case. Learned Special Judge found the autoriskshaw liable to be confiscated for the reason that, when the vehicle is used for transporting ganja, it cannot be without the knowledge of the owner. Evidence of PW9, the revision petitioner establishes that the vehicle was not used for transporting or selling ganja either with his knowledge or connivance. As stated earlier, when even prosecution has no such case, learned Special Judge was not justified in presuming that the action of second respondent entrusting the vehicle to second accused as a driver could only be with his knowledge. As on the materials, it cannot be stated that ganja was either stored, sold or transported in the autorickshaw with the consent or CRRP 3746/2008 3 knowledge of the revision petitioner, being the registered owner in possession he is entitled to the vehicle. In such circumstances, order of Special Judge directing confiscation of the autorickshaw is set aside. As revision petitioner is the registered owner of the vehicle, he is entitled to get custody of the vehicle. M.SASIDHARAN NAMBIAR, JUDGE gk/-