Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 957 (PNJ)

Gurdev Singh v. State Of Punjab

2002-09-20

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. The petitioner has challenged the order dated 27.9.2001 passed by the Judge Special Court, Mansa whereby prayer made by him for release of Maruti car bearing registration No. HR-04-0097 taken into possession during the investigation of the case bearing No. 43 dated 30.4.2000 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) had been declined. 2. In order to focus the controversy involved in the present case a few facts have to be stated. On 30.4.2000 Maruti car bearing registration No. HR-04- 0097 driven by Balbir Singh was intercepted by the Police. One other person was also found sitting in the said car. Search of the car led to the recovery of 3 bags each containing 30 Kgs. poppy straw. During the investigation of the case, the car in question was released to Gurdev Singh, petitioner-accused on furnishing the bond that he would produce the same as and when required by the Court. On 6.7.2001, the car was not produced in Court and for that reason statement of witness of the prosecution could not be recorded. Consequently, spurdari bond of the car was forfeited to the State and spurdari of the petitioner in respect of the car in question was cancelled. Subsequently, the petitioner produced the car in Court on 24.8.2001 but the same was ordered to be taken into possession. Thereafter, the petitioner moved application on 5.9.2001 to the Special Judge, Mansa with a prayer to release the car on spurdari to him. The petitioner had taken the plea that he had failed to produce the car on 6.7.2001 as the car had gone out of order. The Special Judge, Mansa came to the conclusion that the petitioner had intentionally not produced the car on 6.7.2001 and for that reason it would not be advisable to release the car again on spurdari to him. Notice was taken by him of the observations made in Narender Kaur v. Arun Sheoran, 2000(4) RCR(Crl.) 266, wherein taking into consideration facts and circumstances of the case the interim custody of the Maruti car allowed by the petitioner in that case to be used for carrying contraband had been declined. It is this order which had been challenged in the present petition. 3. I heard counsel for the petitioner and State counsel at length. 4. It is this order which had been challenged in the present petition. 3. I heard counsel for the petitioner and State counsel at length. 4. The primary controversy raised in the present petition has to be determined in the light of the provisions contained in Sections 60(3) and 63 of the Act and Section 451 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code). The relevant provisions of Section 60(3) of the Act read as under :- "60. Liability of illicit drugs, substances, plants, articles and conveyance to confiscation.- (1) xx xx xx xx (2) xx xx xx xx (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance, or any article liable to 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." Section 63 of the Act further provides as follows :- "63. Procedure in making confiscations. - (1) In the "trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under Section 60 or Section 61 or Section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. - (1) In the "trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under Section 60 or Section 61 or Section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly : Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim : Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. (3) Any person not convicted who claims any right to property which has been confiscated under this section may appeal to the Court of Sessions against the order of confiscation." 5. Section 451 of the Code which has bearing on the controversy raised is in the following terms :- "451. Order for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation - For the purposes of this section, "property" includes - (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence." 6. Notice has to be taken of the provisions of Section 51 of the Act which expressly provides that the provisions of Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under this Act. The above quoted provisions of Section 60(3) of the Act clearly lay emphasis on the liability for confiscation of the conveyance used in carrying any narcotic drug or psychotropic substance, or any article liable to confiscation under sub-section (1) or sub-section (2) but at the same time provides that the liability can be avoided where the owner of the conveyance is able to prove that it was used without his knowledge or connivance or by his agent. Understandably, at this stage the Court would require the evidence to be led unless the State admits the stand of the person applying under these provisions. Section 63 of the Act also pointedly makes reference to the situation where any article or thing seized under the Act is liable to confiscation under Section 60 or 61 or 62 of the Act but the person committing the offence stated therein is not known or cannot be found. In such situation, the Court has to hold an inquiry to decide such liability before ordering confiscation. That being the position, the resort to Section 451 of the Code which deals with the passing of the order for custody of the conveyance during the trial cannot be construed as violating the provisions of Sections 60(3) and 63 of the Act. 7. Needless to say that in the present case the trial Court had itself released the vehicle in question to the petitioner and it is only on account of default committed by him in producing the vehicle on 6.7.2001 that his subsequent prayer for release of the vehicle in question had been denied. 7. Needless to say that in the present case the trial Court had itself released the vehicle in question to the petitioner and it is only on account of default committed by him in producing the vehicle on 6.7.2001 that his subsequent prayer for release of the vehicle in question had been denied. The trial Court is yet to determine whether the ground taken by him for not producing the vehicle on the date of hearing fixed was sufficient or not. It is not disputed on behalf of the State that the petitioner is the registered owner of the vehicle in question. One cannot ignore that if the vehicle is kept in the Police Station, it is likely to get damaged and rendered unusable because of its non-use. 8. Under the circumstances of the case, the trial Special Judge was not justified in declining the prayer of the petitioner. Consequently, the impugned order is set aside and the vehicle in question is ordered to be released on spurdari to the petitioner as an interim measure on his furnishing surety bond in the sum of Rs. 2,50,000/- undertaking therein to produce the vehicle in question as and when required by the Police or the Court during the trial of the case and not to transfer the vehicle by any means during the period it remains on spurdari with him. This shall order shall be subject to the final order passed by the trial Special Judge on conclusion of the trial. 9. The petition is disposed of accordingly.