SHAJAHAN Vs. INSPECTOR OF EXCISE

JUDGEMENT

(1.) These matters have come before us by way of a reference as per order of the learned Single Judge dated 9/4/2019. It was noticed that this Court in Hassainar Aseez B. v. State of Kerala (2017 (2) KLT 741) held that a vehicle which was seized under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) could be released subject to certain conditions if an application is filed u/s 451 of the Criminal Procedure Code. It was observed that S.52A of the NDPS Act read with the judgment of the Apex Court in Union of India v. Mohanlal and Another [(2016) 3 SCC 379] indicates that the Magistrate does not have jurisdiction to pass orders u/s 451 Cr.P.C. In the light of the aforesaid controversy, the matter has been referred to this Court.

(2.) The issue has been well covered by the judgment of the Apex Court in Mohanlal (supra). In that case, the Apex Court had occasion to consider the manner in which narcotic drugs and psychotropic substances are being seized, sampled and being kept safe. It was noticed that several of the contraband articles were being stored for a considerably long period which may ultimately result in destruction and though there were provisions for destruction of contraband articles, it remain so incurring storage space, time, money and other difficulties. S.52A was introduced into the statute book to get over the difficulties that were being faced in disposal of seized narcotic drugs and psychotropic substances. Necessarily, the procedure prescribed u/s 52A requires to be followed when any narcotic drugs, psychotropic substances, controlled substances or conveyances are seized and forwarded to the officer in charge of the police station or the officer empowered u/s 53 or the officer referred to in sub-section (1), who shall prepare an inventory of such articles and take such procedures as prescribed therein. The idea of disposing the narcotic drugs and other substances including conveyances is after getting it certified by the Magistrate and the Magistrate's jurisdiction is confined to ensure compliance of Section 52A(2) and (3). Sub-section (4) is a non obstante clause which clarifies the situation and it reads as under:-

(3.) The inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub section (2) and certified by the Magistrate, is treated as primary evidence in respect of any offence. Viewed in that angle, the Magistrate may not have any jurisdiction to deal with the substances or conveyances to any of the articles mentioned therein as held in Hassainar Azeez (supra). In Hassainar Azeez (supra), a learned Single Judge of this Court who had referred the matter had observed that the vehicles seized under the NDPS Act can be released to the interim custody of the registered owner of the vehicle u/s 451 of the Criminal Procedure Code placing reliance on the Apex Court judgment in Sunderbhai Ambalal Desai (2003 (2) KLT 1089). But the Apex Court judgment in Sunderbhai Ambalal Desai (supra) was prior to introduction of S.52A, which provision was introduced by way of substitution on 7/3/2014. Prior to the amendment, the provision reads as under:-