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2002 DIGILAW 72 (CHH)

SHAIK GOUSE MOHIDDIN v. STATE OF CHHATTISGARH

2002-08-26

K.H.N.KURANGA

body2002
K. H. N. KURANGA, J. ( 1 ) THIS appeal has been filed by the appellant under Section 454 of the Code of Criminal Procedure read with Section 63 (3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'act') against the order dated 30-1-2002 passed by the Special Judge (NDPS) Bastar at Jagdalpur in Special Case No. 48 of 2001. ( 2 ) FEW facts necessary for disposal of the appeal are as follows : The vehicle involved in this case bears registration No. AP-16x5245. The said vehicle was seized by Dornapal Police, district Dantewada on 5-9-2001 in Crime No. 19 of 2001 for the offence punishable under Section 20 (b) (1) of the Act. The police after completing investigation filed the charge-sheet against two persons namely B. Ramchandra Rao and M. Shankaraiya. Learned Special Judge convicted the said accused persons for commission of the aforesaid offence and sentenced them and passed the order confiscating the vehicle to the Government on 30-1-2001. It is that part of the order of the learned Special Judge directing the confiscation of the vehicle to the Government that is challenged by the appellant in this appeal. ( 3 ) THE grievance of the appellant is that he is the registered owner of the vehicle in question and he is not been given a notice and an opportunity of being heard by the authority before passing the order of confiscation of the vehicle to the Government. ( 4 ) SUB-SECTION (3) of Section 60 of the Act reads thus :-" (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance, or any article liable to be confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use. " ( 5 ) IT appears that sub-section (3) of Section 60 of the Act has been enacted primarily to stop illegal activities of transporting Narcotic Drugs and Psychotropic Substances. To give relief to such owners who are innocent in the matter, a facility has been provided and an exception has been drawn. " ( 5 ) IT appears that sub-section (3) of Section 60 of the Act has been enacted primarily to stop illegal activities of transporting Narcotic Drugs and Psychotropic Substances. To give relief to such owners who are innocent in the matter, a facility has been provided and an exception has been drawn. The exception must relate to innocence not only of the owner but also of his agent and the person who has been put in charge of the vehicle. If one has to come within the exception that is sub-section (3) of Section 60, he will have to prove not only his innocence but also that all such possible precautions against wrongful use of the vehicle had been taken by each person or persons. It would not be enough simply to allege that he had no hand in the illegal use. The enactment of the legislature in this regard is purposeful. If that was not so any person would allow the vehicle to be used by others for illegal purposes contemplated under the Act and still claim the vehicle. ( 6 ) THE N. D. P. S. Act does not contemplate execution or extinction of an innocent owner's right. He has a right to be heard under sub-section (3) of Section 60 with a further right of appeal under Section 63 (3) of the Act. Confiscation of forfeiture of a vehicle is a penalty and therefore, the owner of the vehicle is entitled to be given a notice and an opportunity of being heard to show that the vehicle was not used with his consent. Any order of confiscation passed without giving notice and an opportunity of being heard to the owner is illegal or bad in law. There is no provision under the Act which says that the owner has to be given notice by authority before passing an order of confiscation but sub-section (3) of Section 60 of the Act place the burden on the owner of the vehicle to prove that the vehicle was used without his consent or his connivance or the knowledge or connivance of his agent, if any, or the person in charge of the vehicle and that he had taken all reasonable precautions against such use. In other words the owner has to be given a notice and opportunity of being heard to discharge this burden. In other words the owner has to be given a notice and opportunity of being heard to discharge this burden. ( 7 ) IN the present case Mr. Gautam Bhaduri, learned counsel for the respondent/state after going through the records stated that the learned Special Judge has not given notice to the appellant before passing the order of confiscation and he has not been given an opportunity of being heard. Since the learned Special Judge has passed the impugned order confiscating the vehicle in question to the Government without issuing the notice to the appellant and without hearing him, that part of the order passed by the learned Special Judge confiscating the vehicle in question to the State Government cannot be sustained. ( 8 ) ACCORDINGLY, the appeal is partly allowed. That part of the order dated 30-1-2001 passed by the learned Special Judge. Bastar at Jagdalpur in Special Case No. 48 of 2001 directing confiscation of the vehicle that is truck bearing Registration No. AP16x/5245 to the Government, is set aside. Learned Special Judge is directed to issue notice to the appellant, hear him and give an opportunity to show that the vehicle was used without his or his agent's knowledge or connivance and that he had taken all reasonable precautions against such use and thereafter pass appropriate order in accordance with law. He may also permit the appellant to adduce evidence, if necessary. Order accordingly. --- *** --- .