Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945 CRL.MC NO. 4237 OF 2021 AGAINST THE ORDER IN CRL.M.P NO.2551/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS, MALAPPURAM PETITIONER/PETITIONER/OWNER OF THE VEHICLE :- SHEEBA, AGED 40 YEARS W/O.JOSEPH, VADAKKEKARA HOUSE, PANNAMPLAVU, URANGATTIRI, AREAKODE, MALAPPURAM DISTRICT, PIN-673625. BY ADV P.SAMSUDIN RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT :-
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 ANIL SASIDHARAN THE DEPUTY DIRECTOR, REVENUE INTELLIGENCE, KOZHIKODE-670020. BY ADV SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT SRI MP PRASHANTH PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
This petition has approached this Court seeking to quash the order dated 20.03.2021 in Crl.M.P.No.2551/2020 in Crime No.602/2020 of Kondotty Police Station. By the order impugned, the learned magistrate has granted custody of an Innova Crista Car bearing Reg. No.KL-16-R-5005 to the Assistant Director, Directorate of Revenue Intelligence after rejecting the claim of the petitioner.
2. The petitioner states that she is the registered owner of an Innova
Crysta car bearing registration number KL-16-R-5005. On 6 September 2020, based on information received by officers of the Directorate of Revenue Intelligence (DRI) that the aforesaid car, driven by Nisar P, would be reaching the Calicut Airport premises to collect smuggled gold from cleaning staff, they mounted surveillance in the Airport Road premises in the early morning of 6 September 2020. It is stated that when Nisar arrived at the airport in the aforesaid vehicle, it was intercepted by the DRI. In an attempt to escape, the aforesaid Nisar is alleged to have run over the motorcycle bearing registration number KL-56-Q-3274, driven by DRI officials, causing serious injuries to the officers. The Innova car went off the road and came to a halt. Based on the information furnished by the DRI officials, Crime No. 602/2020 was registered, inter alia, under Section 304 of the Indian Penal Code (IPC). The offending vehicle was also seized by the police. Seeking interim custody of the vehicle,
separate applications were filed by the Deputy Director, DRI, and one Nisar, the accused, who was involved in the offence.
3. Sri P. Nisar, the accused, claimed that he was the agreement owner
of the car and that he was entitled to interim custody. The learned Magistrate took note of the fact that the aforesaid Nisar was an accused and that he was not able to produce any documents to show that he was entitled to possession. However, as the vehicle was used for gold smuggling and the investigation in respect of the matter was pending as O.R. No. 10/2020, the request for interim custody filed by the accused was rejected. Instead, interim custody was granted to the Deputy Director, DRI, for a period of six months. Various conditions were imposed to ensure the production of the vehicle, including the execution of a
bond for a sum of Rs. 15 lakhs. It appears that being aggrieved by the order
passed by the learned Magistrate, the Assistant Director has preferred a revision petition before the learned Sessions Judge, which is pending.
4. Sri.P.Samsudin, the learned counsel appearing for the petitioner,
submitted that in Crl.M.P.No. 2551/2020, the DRI had arrayed the petitioner, who is the registered owner of the car, as the 2nd respondent. However, the learned magistrate had passed the order without serving notice to the petitioner. According to the learned counsel, though the accused was in possession of the car, the fact remains that the petitioner was the registered owner, and she was entitled to an opportunity of being heard. It is further submitted that though the
order was passed by the learned Magistrate on 20.03.2021, and though more
than two years have elapsed, the possession of the car has not yet been taken over by the DRI on the ground that the conditions imposed are onerous. It is further submitted that the car is lying exposed to the vagaries of nature, and nobody will be benefitted if the vehicle becomes unfit for use.
5. The learned Standing counsel for the DRI vehemently opposes this
submission. It is submitted that the petitioner herein had given a statement under Section 108 of the Customs Act, wherein she asserted that the vehicle in question was handed over to Nisar on the strength of an agreement, and she no longer is the registered owner of the vehicle. According to the learned counsel, the petitioner had not even approached the learned Magistrate to get interim custody. It is further submitted that being aggrieved by the order passed by the learned Magistrate, the revision petition has been filed. However, stating the pendency of this matter before this Court, a revision petition has not been taken up. The learned counsel would submit that the order passed by the learned Magistrate is liable to be overturned as the vehicle involved in smuggling is liable for confiscation under Section 150 of the Customs Act.
6. In response, it is submitted by Sri.P.Samsudin, that the provision
also provides that if the owner is able to prove that it is without his knowledge or connivance that the vehicle was used, no order of confiscation can be passed.
7. I have considered the submissions advanced.
8. The contentions of Sri.P.Samsudin, the learned counsel appearing for the petitioner, is that though the petitioner was arrayed as the 2nd
respondent in the application, the order was passed without hearing her. From the order, it does not appear that any notice is served to the second respondent. I also find that the DRI is also aggrieved by the conditions imposed by the learned Magistrate, and according to them, no such conditions could have been imposed in Section 150 of the Customs Act.
9. I have considered the submissions advanced. I find from the impugned order that the petitioner herein was made the 2nd respondent in Crl. M.P.No.2551/2020 in her capacity as the registered owner of the car. The
learned counsel asserts that it was without hearing the petitioner that the order
was passed. It is not borne out from the order that the petitioner was issued with a notice, and her objection was heard before passing orders in favor of the DRI. On that sole ground, the impugned order is liable to be overturned. Of course, the contention of the Customs that the petitioner had given a statement that she had no right over the vehicle and that she had not filed any application for interim custody before the learned magistrate will have to be taken note of. I find that the DRI has challenged the order before the revisional court and the said petition is pending. The said revision petition will become infructuous in view of the order passed by this Court quashing the impugned order. In that view of the matter, this petition can be disposed of by issuing the following directions. a) Annexure-A3 order will stand quashed. b) There will be a direction to the learned Magistrate to reconsider the applications with notice to all concerned and pass fresh orders in accordance
with the law. c) The DRI shall initiate appropriate steps to withdraw the revision petition in view of the quashing of the impugned order. d) While reconsidering the matter, the learned Magistrate shall also advert to the contention of the DRI that no onerous conditions could be imposed in view of the provisions of the Customs Act. e) Fresh Orders shall be passed by the learned Magistrate within six weeks from the date of receipt of a copy of this order.
This petition is disposed of. Sd/- RAJA VIJAYARAGHAVAN V., JUDGE SMA APPENDIX OF CRL.MC 4237/2021 PETITIONER ANNEXURES : Annexure A1 TRUE COPY OF THE FIR AND FIS IN CRIME NO.602/2020 OF KONDOTTY POLICE STATION Annexure A2 TRUE COPY OF THE RC OF THE VEHICLE KL 16 R Annexure A3 TRUE COPY OF THE ORDER DATED 20.03.2020 IN CRL.M.P.NO.2551/2020 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM. RESPONDENT ANNEXURES :- Annexure R2(a) true copy of the Statement dated 12.10.2020
made by the petitioner before the Senior Intelligence Officer under Section 108 of the Customs Act, 1962 Annexure R2(b) A true copy of the Statement dated 12.10.2020 made by Shri Veerankutty Kozhissery S/o. Ahmed, Chalakandiyil House, Palakkaparambu,, Kavanuur PO, Malappuram, before the Senior Intelligence Officer under Section 108 of the Customs Act,1962