Kerala High Court
Aboobacker Siddeeq M vs State Of Kerala on 14 February, 2025
Author: V.G.Arun
Bench: V.G.Arun
2025:KER:12467
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
CRL.MC NO. 528 OF 2025
CRIME NO.466/2023 OF SULTHAN BATHERY POLICE STATION, Wayanad
ORDER DATED 25.11.2024 IN CRMP NO.3417 OF 2024 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - II, KALPETTA
PETITIONER/PETITIONER:
ABOOBACKER SIDDEEQ M,
AGED 31 YEARS
S/O.MUHAMMED BASHEER M, THIRUTHIYIL PARAMBU, NALLALAM
P.O, KOZHIKODE DISTRICT, REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER, MINHAJ RAHMAN V, AGED 31 YEARS,
S/O.ABDU RAHMAN, CHERUVATHUTHAZHAM, VELLARIKKAL,
OLAVANNA P.O, KOZHIKODE DISTRICT, PIN - 673027.
BY ADV NIREESH MATHEW
RESPONDENT/RESPONDENT/COMPLAINANT-STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031.
*ADDL R2 THE DEPUTY COMMISSIONER OF EXCISE
CHAIRMAN, NDPS & CONVEYANCE DISPOSAL COMMITTEE, EXCISE
DIVISION OFFICE, MUNDERI TOWER,MUNDERI, KALPATTA P.O,
WAYANAD, PIN-673121.
*(IS IMPLEADED AS 2ND ADDITIONAL RESPONDENT AS PER THE
ORDER DATED 06/02/2025 IN CRL M.A 1/2025. )
SMT. PUSHPALATHA. M.K, SR.PP.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.02.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:12467
CRL.MC NO. 528 OF 2025 2
ORDER
Petitioner is the owner of a motor car bearing registration No.KL-57/T-3475, seized in crime No.466 of 2023 registered at the Sulthanbathery Police Station for offences under Sections 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act ('the NDPS Act' for short), 1985.
2. The gist of the prosecution case is that, at about 12 p.m on 3.5.2023, accused nos.1 to 4 were found in possession of 151.7 gms of MDMA while travelling from Bangalore to Kerala in the petitioner's car. The petitioner is not an accused in the crime, but is aggrieved by the rejection of the application for interim custody of his vehicle.
3. Learned Counsel for the petitioner submitted that, insofar as the petitioner is not an accused and the car having been seized almost two years back, court below ought to have granted interim custody to the petitioner. Learned Counsel also points out that, till date, petitioner has not been issued with 2025:KER:12467 CRL.MC NO. 528 OF 2025 3 even a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, and the observations in the order regarding petitioner's complicity in the crime are baseless. Relying on the decision in Bishwajit Dey v. State of Assam [2025 SCC Online SC 40] it is contended that, even though the vehicle is a critical piece of material evidence, required for inspection to substantiate the prosecution case, such requirement can be met by stipulating conditions while releasing the vehicle on interim custody.
4. Learned Public Prosecutor submitted that, if at all the vehicle is released, that should be on stringent conditions.
5. Having heard both sides, this Court is also of the opinion that, merely for reason of seizure of the contraband from petitioner's vehicle, interim custody of the vehicle need not be denied to its owner. Of course, grant of such custody would be subject to the procedure prescribed under Section 52A of the NDPS Act. In arriving at such conclusion, I am 2025:KER:12467 CRL.MC NO. 528 OF 2025 4 guided by the following observations of the Supreme Court in Bishwajit Dey (supra);
"26. If the respondent-State's interpretation is accepted, then in a case where an accused is arrested carrying heroin in a private plane or a private bus or a private ship without the knowledge and consent of the management and staff of the private plan or bus or ship, the plane/bus/ship would have to be seized till the trial is over!
27. Though the risk of misuse by the accused or third party of the same plane or bus or ship cannot be ruled out, yet the Courts do not take coercive action on the basis of fear or suspicion or hypothetical situation.
28. Undoubtedly, the Vehicle is a critical piece of material evidence that may be required for inspection to substantiate the prosecution's case, yet the said requirement can be met by stipulating conditions while releasing the Vehicle in interim on superdari like videography and still photographs to be authenticated by the Investigating Officer, owner of the Vehicle and accused by signing the said inventory as well as restriction on sale/transfer of the Vehicle."
In the result, the Criminal Miscellaneous Case is 2025:KER:12467 CRL.MC NO. 528 OF 2025 5 disposed of by quashing Annexure 3 order and directing the court below to reconsider Crl.M.P. No.3417 of 2024 filed by the petitioner and pass a reasoned order thereon, adverting to the decisions of the Apex Court in Bishwajit Dey (supra) and Sunderbhai Ambalal Desai v. State of Gujarat [2003 KHC 535]. The order, as directed, shall be passed within two weeks of production of a copy of this order.
Sd/-
V.G.ARUN JUDGE Sru 2025:KER:12467 CRL.MC NO. 528 OF 2025 6 APPENDIX OF CRL.MC 528/2025 PETITIONER'S ANNEXURES Annexure 1 TRUE PHOTOCOPY OF THE FIR IN CRIME NO.466/2023 OF SULTHAN BATHERI POLICE STATION DATED 03.05.2023 Annexure 2 TRUE PHOTOCOPY OF THE POWER OF ATTORNEY EXECUTED ON 24.03.2023 Annexure 3 FREE COPY OF THE ORDER DATED 25.11.2024 IN CRL.MP.NO.3417/2024 PASSED BY THE COURT OF THE SPECIAL JUDGE, NDPS ACT CASES/ADDL. SESSIONS JUDGE-II, KALPETTA, WAYANAD DISTRICT