Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 1ST DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 CRL.MC NO. 3860 OF 2023 AGAINST THE ORDER IN CMP 605/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III, ATTINGAL (TEMPORARY)
PETITIONER/ACCUSED NO.2: SREEHARI V AGED 19 YEARS S/O VAMANAN, AJANTHA, VAKKOM, THIRUVANANTHAPURAM, PIN - 695308. BY ADVS. MANSOOR.B.H. SAKEENA BEEGUM RESPONDENTS/STATE & ANR: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031. 2 EXCISE INSPECTOR KILIMANOOR EXCISE OFFICE, KILIMANOOR,THIRUVANANTHAPURAM, PIN - 695601. SRI.VIPIN NARAYAN, SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. No.3860 of 2023 2
ORDER
Being aggrieved by the order dated 15.02.2023 in C.M.P.No.605 of 2023 of the Temporary Judicial Magistrate of the First Class, Attingal, as per which interim custody of vehicle involved in Crime No.3 of 2023 of Excise Office, Kilimanoor, this petition has been filed under Section 482 of the Cr.P.C.
2. The grievance of the petitioner is only with regard to condition No. (2) of the order by which, as a condition precedent, the petitioner has been ordered to deposit a sum of Rs. 75,000/- by way of cash or bank guarantee.
3. Short facts are as under: A crime was registered by the Excise Range Officer, Kilimanoor, on the
allegation that the petitioner was found traveling in a motorbike owned by him and 420 mg of MDMA was seized from the body of the petitioner. Consequent to the registration of Crime No. 3 of 2023 of the Excise Range Office, Kilimanoor, for the offence under Sections 22(a) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), TVS NTORQ 125 Race Edition Motor Cycle in which the petitioner was traveling,
Crl.M.C. No.3860 of 2023 3 and Realme X2 mobile phone were seized. Seeking interim custody of the vehicle, the petitioner filed an application before the learned Magistrate, which was allowed by the impugned order.
4. Sri. Mansoor B.H, the learned counsel appearing for the
petitioner, points out that the contraband which was allegedly found in the car was just 110 gms and being categorized as a small quantity, the punishment that can be imposed is only rigorous imprisonment for a term that may extend to one year or fine which may extend to Rs.10000/-. According to the learned counsel, having decided to grant interim custody, relying on the law laid down by the Apex Court in Sainaba v. State of Kerala [2022 (7) KHC 273], there was no justification in directing the petitioner to deposit the value of the Maruti Swift Car for release on interim custody. According to the learned counsel, the order is unduly harsh and warrants interference.
5. The learned Public Prosecutor has opposed the submissions.
According to him, the menace of drugs has reached alarming proportions, and it is as a deterrent measure that the learned Magistrate has imposed stringent conditions. It is contended that the order does not warrant any interference. Crl.M.C. No.3860 of 2023 4
6. I have considered the submissions. It is clear from the order
passed by the learned Magistrate that the order was passed by the learned Magistrate relying on the law laid down by the Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat [2022 (10) SCC 283], Sainaba (supra) and Shanil v. State of Kerala [2023 (2) KHC 88]. However, while granting interim custody, the learned Magistrate was required to exercise his powers and only insist on taking appropriate bond and guarantee as well as security for the return of the vehicle as held by the Hon’ble Supreme Court in Sunderbhai Ambalal (supra). The learned Magistrate ought to have reckoned the nature and gravity of the allegations leveled against the accused, the antecedents of the person claiming interim custody, the severity of the offense, and other attendant facts and circumstances while deciding to impose conditions for releasing the vehicle on interim custody. In the case on hand, after having decided to grant interim custody, the learned Magistrate ought to have reckoned that the quantity of contraband seized from the accused falls in the category of small quantity and is punishable with imprisonment of up to one year and a fine of Rs. 10000/-. As rightly submitted by the learned counsel, I have no doubt in my mind that the direction to furnish cash security or bank guarantee of Rs.75,000/- is unduly harsh. I am of the considered opinion that the impugned order warrants
Crl.M.C. No.3860 of 2023 5 interference. Resultantly, this petition will stand allowed. Condition No. (2) in the
order dated 15.02.2023 in C.M.P.No. 605 of 2023 directing the petitioner to
deposit a cash security of Rs. 75,000/- or furnish a bank guarantee of Rs. 75,000/- will stand modified to the extent that the amount ordered to be deposited as cash security/bank guarantee will stand reduced to Rs.
10,000/-. All other conditions imposed by the learned Magistrate shall remain as such. Sd/- RAJA VIJAYARAGHAVAN V JUDGE Sru Crl.M.C. No.3860 of 2023 6 APPENDIX OF CRL.MC 3860/2023 PETITIONER’S ANNEXURES Annexure A CERTIFIED COPY OF THE ORDER DATED 15/02/2023 IN C.M.P NO:605/2023 OF TEMPORARY JUDICIAL FIRST CLASS MAGISTRATE COURT ATTINGAL.