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2008 DIGILAW 263 (CAL)

Kamaluddin Mondal v. State

2008-03-05

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) BY this application prayer has been made for appropriate order for return of the Motor Cycle to the petitioner which was seized in connection with Tehatta P. S Case No. 120 of 2007 dated 17.4.07 under Sections 15/17/18/29 of N. D. P. S Act now pending before the learned Judge, Special court, N. D. P. S Act, Nadia being Case No. 94/07. (2.) THE order of the learned Judge, Special Court dated 5.7.07 passed in N.D.P.S. Case No. 94/07 is under challenge. The learned Judge before whom prayer was made by the petitioner for return of the Motor Cycle bearing no WB-24/t. A-1035, register the prayer observing that since this was the alamat of the case and charge-sheet has been submitted it could not be returned and more particularly this motor cycle was used by the accused persons in transporting narcotic substance. Before the learned Single Judge it was submitted by the petitioners learned Counsel that the seized motor cycle was a new one and the owner of the vehicle handed overt the motor cycle to the accused persons at their request just to have a joy ride. (3.) I have heard the learned Advocate for the petitioner and the learned Advocate for the State of West Bengal. (4.) SECTION 60 (3) of the N. D. P. S. Act, 1985 reads as follows:- "any animal or conveyance used in carrying any narcotic drugs 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. " (5.) UNDERSTANDABLY, the petitioner is not the accused in the FIR. He was never arrested. He has not been charge-sheeted in the case. FIR and the charge-sheet is against different persons. Allegation is that on 17.4.07 in evening in course of petrol duty the police officers along with others apprehended two accused persons when they were going by a motor cycle and pursuant to some source information one pollythin bag containing opium kept inside the box of the Motor Cycle was seized. They failed to produce any valid document. They were arrested. They failed to produce any valid document. They were arrested. Upon completion of investigation charge-sheet was submitted against the accused persons under Sections 15, 17, 18, 29 of N. D. P. S. Act. (6.) THE certificate of Insurance stood in the name of the petitioner and certificate was issued in September, 2006. Now the question is whether the vehicle seized in connection with offence under N. D. P. S. Act can be placed in the interim custody of the petitioner pending conclusion of the trial. Irrespective of whether the accused charged with offence under the sections of N. D. P. S. Act is convicted or acquitted the vehicle allegedly used in transporting the contraband goods under the said Act can be confiscated. The proceeding of confiscation takes place only after conclusion of the trial. Now the question is whether the provision of Section 451 Cr. P. C. constitutes bar to interim custody of the seized property pending trial of the case. Section 451 Cr. P. C. reads thus:- "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." (7.) MR. S. S. ROY, learned Advocate appearing for the State of West bengal submits that there are unreported decision of this Court rejecting prayer for return of conveyance in interim custody of the persons who made such prayer but no such unreported decision has been cited before this Court. (8.) HAVING gone through the relevant provisions of the Act it does not appear that operation of Section 451 Cr. P. C. has been made a bar in the matter of offence under the N.D.P.S. Act. (8.) HAVING gone through the relevant provisions of the Act it does not appear that operation of Section 451 Cr. P. C. has been made a bar in the matter of offence under the N.D.P.S. Act. My attention has been drawn to the decision in the case of B. S. Rawant v. Shaikh Abdul Karim and Anr., reported in 1989 Crl. LJ 1998 wherein Bombay High Court observed as follows:-"the provisions of Sections 41,42,43,55,51,53,60 and 63 of the Narcotic Drugs and Psychotropic Substance Act do not exclude he operation of Section 451 or Section 457 (1) of Cr. P. C. Under sections 60 and 63 of the Act such an article or vehicle used for the purpose of commission of an offence under this Act is liable for confiscation. In other words, the article or the vehicle must be available at the time of trial or at the end of the trial for the purpose of confiscation. It does not mean that, the vehicle shall always remain at the concerned police station pending the trial. Where, in application for return and custody of the motor vehicle (a taxi)seized under Section 42 of the Act, the applicant claims to be the owner thereof and avers that he is not in any way concerned with the offence and further undertakes to produce the said vehicle subject to the terms and conditions imposed there upon at the time of the final hearing of the matter, there is no reason why such as application cannot be considered by the Court when there is no provision under the Act prohibiting an interim custody and neither Section 451 nor Section 457 (1) of the Cr. P. C. is inconsistent; with the provisions of the Act." (9.) THE decision of the Delhi High Court in the case of. . . . . v. State of nct if Delhi, 2002 Criminal Law Journal 2605 has been cited where a learned Single Judge observed that provision of Section 451 Cr. P.C. in so far as it relates to passing of order for appropriate custody of conveyance pending conclusion of the trial is not inconsistent with any of the section of N. D. P. S. Act including Section 60 (3) and Section 63 of the Act. Therefore, bombay and Delhi decision speak in same voice. P.C. in so far as it relates to passing of order for appropriate custody of conveyance pending conclusion of the trial is not inconsistent with any of the section of N. D. P. S. Act including Section 60 (3) and Section 63 of the Act. Therefore, bombay and Delhi decision speak in same voice. (10) FURTHERMORE, there is decision of this Court also on this point which is Tridip Mitra v. State of West Bengal, 2006 (1) C Cr. LR (Crl) 96 where a learned Single Judge of this Court also held that Sections 41,42,43,51,53, 60 and 63 of the N. D. P. S. Act do not exclude release of vehicle, under Section 451 Cr. P. C. and Bombay decision was approvingly quoted there and it was observed that during pendency of the trial or pendency of the criminal proceeding the learned Special Judge has the jurisdiction under Sections 451 and 457 of Cr. P. C. to pass order in accordance with law concerning return of the vehicle. This decision followed the guideline of the Supreme Court in the case of Sunderbhai amblal Desai v. State of Gujarat, JT 2002 (10) SC 80 wherein Their lordships of the Supreme Court made certain guideline in the matter of release of seized property under Section 451 Cr. P. C. In this decision also their Lordships of the Supreme Court held that procedure under Section 451 of Cr. P. C. also should be followed similarly for the Narcotic Drugs. (11.) THE vehicle in the instant case has been lying in the police station for a long time. The petitioner is not an accused. In the circumstances, it appears to be a fit case where judicial discretion in compliance with Section 451 Cr. P. C. which does not run counter to Section 60 (3) of N. D. P. S. Act can be exercised. In that view of the matter I allow the petition and set aside the order of the learned Judge, Special Court under the N. D. P. S. Act, Nadia dated 5.3.07. (12.) THE vehicle shall be released in favour of the petitioner against a bond of Rs. 50,000/- with two sureties to the satisfaction of the learned judge concerned on the following terms:- (a) The petitioner shall not dispose of the vehicle till conclusion of the trial. (12.) THE vehicle shall be released in favour of the petitioner against a bond of Rs. 50,000/- with two sureties to the satisfaction of the learned judge concerned on the following terms:- (a) The petitioner shall not dispose of the vehicle till conclusion of the trial. (b) The petitioner shall be bound to produce the vehicle at the trial whenever the same would be required and asked for by the learned Judge. (c) A coloured photograph of the vehicle with clear depiction of vehicle number shall be taken before release in interim custody in favour of the petitioner. (d) The petitioner shall not change the chasis number, engine number and other parts of the vehicle or shall not change the colour of the vehicle. (e) The vehicle shall be available and produced before the learned Trial Court if and when called for by the Court below in connection with. . . . . . . . proceedings. Let a copy of this order be sent to the learned Judge, Special Court under the N. D. P. S. Act, Nadia for information and necessary action with reference to Tehatta P. S. Case No. 120 of 2007 dated 17.4.2007.