Lenin vs State Of Kerala

Petitioner is the 1st accused in Crime No.2028 of 2020 of Punalur Police Station, registered for offences under Section 20(b)(ii)A of the Narcotic

Drugs and Psychotropic Substance Act, 1985 and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The allegation is of

the petitioner along with another having indulged in sale of ganja to students near the Kuthirachira Government School. The Police party searched the

accused and on finding them to be in possession of ganja, arrested them and seized the motorcycle in which they had reached the site. The petitioner

filed Crl.M.P.No.1809 of 2020 under Section 451 Cr.P.C seeking interim release of the motorcycle, a mobile phone and some currency notes seized

by the Police. By the impugned order, the learned Magistrate rejected the prayer for interim release of the motorcycle and currency notes, but allowed

the prayer for release of the mobile phones. In the order, the learned Magistrate has referred to Section 52A of the NDPS Act and has relied on the

decision of the Apex Court in Union of India v. Mohanlal and Another [(2016) 3 SCC 379] and of this Court in Shajahan v. Inspector of Excise [2019

(4) KLT 507].

The challenge against Annexure F order is primarily on the ground that there is no evidence of the motorcycle having been used for conveyance of

the contraband, and hence the Magistrate is not denuded of power to order interim custody of vehicles. In support of this contention, reliance is placed

on the decision in Midhun Thomas v. State of Kerala [2020 (4) KLT 102], wherein this Court held that, only a conveyance used for carrying any

narcotic drug or psychotropic substance or controlled substance, is liable to be disposed of by the Drug Disposal Committee under Section 52A of the

NDPS Act.

In the instant case, the accused were arrested and the contraband seized, while they were engaged in selling ganja to school students. The accused

had reached the spot in the motorcycle. Therefore, the contention that, while the body search was conducted and the contraband seized, the accused

were not seated on the motorcycle and hence, vehicle was not used for conveyance of the contraband, is liable to be rejected. The decision in Midhun

Thomas is therefore of no help to the petitioner. On the other hand, the dictum in Mohanlal and Shajahan will apply on all fours. The reasoning and the

conclusion in the impugned order being perfectly in tune with the provisions and the decisions, warrant no interference.

In the result, the Crl.M.C is dismissed.