Kerala High Court
Thausif Ahammed Bengre vs State Of Kerala on 6 December, 2016
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 9TH DAY OF JANUARY 2018 / 19TH POUSHA, 1939
Crl.MC.No. 6189 of 2017
-------------------------
CMP 2609/2016 of J.M.F.C.-II, MANANTHAVADY
CRIME NO. 8/2016 OF MANANTHAVADY EXCISE RANGE OFFICE, WAYANAD
PETITIONER(S)/2ND ACCUSED :-
-----------------------------
THAUSIF AHAMMED BENGRE,
AGED 42 YEARS, S/O HAMEED, FLAT NO.302,
THUMBAI ARCADIA KUDUMBI GARDEN,
MANGALORE, KARNATAKA.
BY ADV.SRI.KRISHNA PRASAD. S
RESPONDENT(S)/RESPONDENT/STATE :-
---------------------------------
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, 682031, REPRESENTING THE EXCISE
INSPECTOR, EXCISE RANGE OFFICE, MANANTHAVADY - 682031.
BY SRI.SUMAN CHAKRAVARTHY, PUBLIC PROSECUTOR WITH DGP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-01-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 6189 of 2017 ()
--------------------------
APPENDIX
PETITIONER(S)' EXHIBITS :-
---------------------------
ANNEXURE A1 A TRUE COPY OF THE SALE CERTIFICATE ISSUED TO
THE PETITIONER DATED 6.12.2016.
ANNEXURE A2 A TRUE COPY OF THE MAHASAR MADE CRIME NO.8 OF
2016 DATED 24.12.2016.
ANNEXURE A3 A TRUE COPY OF THE SEARCH LIST PREPARED IN NDPS
CRIME NO.8 OF 2016 OF MANANTHAVADY EXCISE
DATED 24.12.2016.
ANNEXURE A4 A TRUE COPY OF THE CRIME AND OCCURRENCE
REPORT PREPARED IN NDPS CRIME NO.8 OF 2016 OF
MANANTHAVADY EXCISE DATED 24.12.2016.
ANNEXURE A5 A TRUE COPY OF THE ORDER MADE IN CRIMINAL
MISCELLANEOUS PETITION NO.26069/2016 DATED
12.1.2017 BY THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-II, MANANTHAVADY.
ANNEXURE A6 A TRUE COPY OF THE ORDER DATED 25.7.2017 MADE IN
CRL.M.C.NO.4753 OF 2017 BY THIS HONOURABLE COURT.
RESPONDENT'S EXHIBITS :- NIL
--------------------------
//TRUE COPY//
P.A. TO JUDGE
rkj
P.UBAID, J.
================================
Crl.M.C.No.6189 of 2017
================================
Dated this the 9th day of January, 2018
ORDER
This is a typical case of misuse of the powers of seizure under the Narcotic Drugs and Psychotropic Substances Act. The petitioner claims to be the owner of an unregistered vehicle. The person driving the said vehicle was found possessing a small quantity of 40 Gms of ganja at about 8.15 a.m. on 24.12.2016. The said person was arrested by the Circle Inspector of Excise, Mananthavady, and the vehicle was seized as per a mahazar by him. On the basis of the arrest and seizure, a crime was registered against the said person as the first accused. Later the petitioner was also arraigned as second accused on the ground that he is the owner of the vehicle. It appears that without making any enquiry and without application of mind the excise official quite mechanically arraigned the owner of the vehicle as an accused in the case involving a very small quantity of 40 Gms of ganja. The petitioner now seeks orders quashing the crime and further proceedings as against him. On 21.12.2017, this Court directed the Detecting Officer to appear in person and explain the Crl.M.C.No.6189 of 2017 2 circumstance in which the vehicle happened to be seized. The Detecting Officer accordingly appeared in Court and filed an affidavit explaining the reason for seizure. The reason stated by him in the affidavit is quite shabby and unacceptable. Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act provides that any conveyance or vehicle used in carrying any Narcotic Drugs or Psychotropic Substances shall be liable to confiscation. For a property to be confiscated, or for a vehicle or conveyance to be confiscated under the NDPS Act, it must be a vehicle or conveyance used for carrying or transporting ganja. There is no such factual situation here. The vehicle was simply being driven by the driver, and in his possession a small quantity of ganja was seen. The Detecting Officer quite mechanically acted without knowing the spirit and purport of the law, and quite unnecessarily seized the vehicle. Ofcourse, the person found in possession of ganja is liable for prosecution appropriately. It is really fallacious to contend that the Detecting Officer found the vehicle being used for transporting or carrying ganja, when the quantity is a very small quantity of 40 gms, and not 40 Kgs. Anyway, as an interim measure, this Court directed the court below to release the vehicle to the petitioner on his executing a bond, by order dated 21.12.2017. Further conditions are not felt necessary in Crl.M.C.No.6189 of 2017 3 the above circumstances. Let appropriate final orders as regards the vehicle be passed by the trial court on conclusion of trial. I am not inclined to make further commends on this aspect. The Detecting Officer has tendered an unconditional apology also in the affidavit filed by him. Let such instances of illegal seizure be not repeated by him, and also the other Officers of the Excise, Police and other departments.
Now as regards the prayer to quash the proceedings as against the petitioner there is a report that on investigation the Excise Officials could not find out anything as against the petitioner, and so a report was filed in the court below on 05.12.2017 deleting him from the array of accused. Anyway, now that the petitioner stands deleted from the array of the accused there is no necessity of quashing the proceedings as against him. The report submitted by the Excise Official to that effect is recorded, and this Crl.M.C. is closed.
Sd/-
P.UBAID, JUDGE rkj //TRUE COPY// P.A. TO JUDGE