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2004 DIGILAW 1171 (PNJ)

Santa Singh v. State Of Punjab

2004-10-13

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. Santa Singh, petitioner, who is owner of tractor No. PAS 3499 and also the trolly, has filed this petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing order dated 27.10.1993 passed by Additional Sessions Judge, confiscating the tractor-trolly of the petitioner, and Notice-Annexure P-3 issued by the Additional Sessions Judge, Sangrur calling upon the petitioner to produce the said tractor trolly in Court, failing which his superdari would be cancelled. 2. In this case, an FIR bearing No. 108 dated 18.7.1990 was registered against the accused-Mohan Singh, Karnail Singh and Jagrup Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act). In that FIR it was alleged that on 18.7.1990 when the police officials were present in the area of Sunam in connection with nakabandi, the aforesaid accused who were carrying the poppy husk in tractor-trolly in question, were arrested on the spot. The said vehicle was being driven by accused-Karnail Singh and the other co-accused Mohan Singh and Jarnail Singh were sitting inside the trolly. As many as eight gunny bags, each containing 40 kgs. of poppy husk were recovered from the tractor-trolly. It was also seized by the police. 3. Subsequently, on the application filed by the petitioner the tractor-trolly in question was released on superdari to him by the trial Court. 4. After investigation, the police filed the challan. Charges were framed against all the three accused. 5. During the course of the trial, the prosecution could not lead any evidence against the accused in spite of several opportunities granted to it. Consequently, all the accused were acquitted of the charges framed against them by the Additional Sessions Judge, Sangrur vide judgment dated 27.10.1993. 6. While acquitting the accused, the Additional Sessions Judge also ordered for confiscation of the tractor-trolly in question, and further directed for initiation of separate proceedings for seizure of the said tractory-trolly. The concluding part of the said order is reproduced as under :- "The charge in this case was framed against the accused on 9.11.1990 and during this long period of 3 years the prosecution availed of number of opportunities and even last opportunities thrice, but failed to produce evidence. The concluding part of the said order is reproduced as under :- "The charge in this case was framed against the accused on 9.11.1990 and during this long period of 3 years the prosecution availed of number of opportunities and even last opportunities thrice, but failed to produce evidence. The prosecution was extremely negligent in producing its witnesses in the Court without any excuse reasonable or unreasonable and there is no alternative except to cut short the proceedings. The evidence of the prosecution was closed by order. There being no evidence against the accused, conviction cannot be based and they are acquitted of the charge framed against them. Case property be destroyed under the rules and file be consigned. The tractor trolley bearing registration No. PAS 3499 which was part of the case property is confiscated to the State. It is on superdari with Santa Singh son of Pritam Singh of village Sheron, Tehsil & Distt. Sangrur. Proceedings be initiated separately for the seizure of the tractor and trolly as the accused have not claimed the case property to be belonging to them." In pursuance to the aforesaid order, the trial Court issued a notice to the Superdar i.e. present petitioner, directing him to produce the tractor-trolly in question on or before 28.1.1994 failing which his superdari would be cancelled. Hence, the petitioner filed the present Criminal Miscellaneous Petition. 7. Learned counsel for the petitioner while impugning the aforesaid order, submitted that in this case when the prosecution had failed to prove the charges against the accused, then the vehicle in question, which was seized at the time of the alleged occurrence, could not have been confiscated under Section 60 of the Act. 8. Secondly, the learned counsel submitted that the even the order of confiscation has been passed by the trial Court without affording an opportunity of hearing to the petitioner to enable him to put his defence opposing the prayer made by the prosecution for confiscation of the tractor- trolly in question. Therefore, the order of confiscation passed by the trial Court is without jurisdiction and violative of the principles of natural justice and, hence, the same is liable to be quashed. 9. On the other hand, the learned counsel for the respondent-State submitted that there is a distinction between conviction and confiscation. Therefore, the order of confiscation passed by the trial Court is without jurisdiction and violative of the principles of natural justice and, hence, the same is liable to be quashed. 9. On the other hand, the learned counsel for the respondent-State submitted that there is a distinction between conviction and confiscation. Confiscation is a penalty in rem and this penalty is enforced against the goods whether the offender is known or not known, whereas, the conviction of a person is a penalty in personam which is enforced against a person found to have committed some offence. Therefore, the acquittal of the accused in the aforesaid case is of no consequence as far as the confiscation of the vehicle in question, is concerned. While referring to sub-section (3) of Section 60, learned counsel for the respondent-State submitted that if a vehicle was found to be carrying narcotics and psychotropic substance, the same may be liable to be confiscated. Learned State counsel further contends that the procedure for making confiscation has been provided under Section 63 of the Act which clearly says that irrespective of the fact whether the accused is convicted or acquitted or discharged, the Court shall decide whether any article seized under this Act is liable to be confiscated under Section 60, Section 61 or Section 62 and then accordingly pass an order of confiscation. Therefore, contention of the petitioner that on acquittal of the accused the vehicle in question cannot be confiscated, is not sustainable. Thus, there is no illegality or infirmity in the order passed by the trial Court. 10. Undisputedly, the State has not filed any appeal or revision against the order or acquittal of the accused-persons. 11. I have heard the arguments of learned counsel for the parties. 12. The vehicle in question was seized by the police when it was intercepted by the police on the date of occurrence when it was being used by the accused for carrying the contraband. During the course of the trial, the prosecution could not lead any evidence in support of the charges framed against the accused, which led to their acquittal. However, in this case, the learned trial Court passed the order of confiscation without following the proper procedure as provided under the Act. During the course of the trial, the prosecution could not lead any evidence in support of the charges framed against the accused, which led to their acquittal. However, in this case, the learned trial Court passed the order of confiscation without following the proper procedure as provided under the Act. It is not disputed that the tractor- trolly in question was owned by the petitioner and therefore, the same was released to him on superdari. It is also not disputed that the petitioner was not apprehended on the spot nor he was an accused in the aforesaid case. Only the tractor-trolly in question which was owned by him, was allegedly found involved in the crime on the date of the occurrence. All the accused were acquitted as the prosecution did not prove the charge. Still, it cannot be said that the vehicle in question is not liable to be confiscated under Section 60 of the Act. There is a distinction between confiscation and conviction. In Sewpujanrai Indrasanarai Ltd. v. Collector of Customs, AIR 1958 SC 845, it was held that confiscation is a proceeding in rem and the penalty is enforced against the goods whether offender is known or not known. On the other hand, the conviction of a person is penalty in personam which is enforced against a person found to have committed some offence. Section 60 of the Act clearly provides that a vehicle which is found to be used for carrying the contraband, is liable to be confiscated. The confiscation of such vehicle has no relevance with the conviction of the accused who was using the said vehicle. Section 63 of the Act clearly provides that 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 be confiscated and if the Court decides that the article is so liable, it may order confiscation accordingly. Thus, the first contention of the petitioner that vehicle in question is not liable to be confiscated in view of acquittal of the accused, is not acceptable. 13. Now the question arises whether before passing the order of confiscation the trial Court has followed the procedure as provided in sub-section (3) of Section 60 of the Act. Thus, the first contention of the petitioner that vehicle in question is not liable to be confiscated in view of acquittal of the accused, is not acceptable. 13. Now the question arises whether before passing the order of confiscation the trial Court has followed the procedure as provided in sub-section (3) of Section 60 of the Act. Undisputedly, in this case, before passing the order of confiscation, no notice was issued to the petitioner nor he was provided any opportunity of hearing and to lead evidence to establish that vehicle in question is not liable to be confiscated. Sub-section (3) of Section 60 of the Act provides as under :- "(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." 14. According to the aforesaid sub-section a conveyance used in carrying the narcotics is liable to be confiscated unless the owner of the conveyance proves that it was so used without his knowledge or connivance and he had taken all precautions against such use. Therefore, this provision clearly envisages that before passing the order of confiscation, owner of the vehicle has to be given an opportunity of hearing enabling him to take a defence that his vehicle is not liable to be confiscated and the same was so used without his knowledge and in spite of all precautions taken by him against such use. In support of his defence, he can also lead evidence. In this case, the petitioner is not the party or accused in the main case nor at any point of time he was provided any opportunity to explain his case and plead his defence. Therefore, in my opinion, the order of confiscation passed by the trial Court is not sustainable on this account and is liable to be set aside. 15. Therefore, in my opinion, the order of confiscation passed by the trial Court is not sustainable on this account and is liable to be set aside. 15. Consequently, the part of the impugned order relating to confiscation of tractor-trolly in question is set aside and the matter is remitted to the trial Court to consider the question of confiscation of the tractor-trolly in question after providing due opportunity of hearing to the petitioner to enable him to lead evidence in support of his claim and thereafter decide the matter in accordance with law. Order accordingly.