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Orissa High Court · body

2009 DIGILAW 684 (ORI)

Subash Chandra Panda v. State of Orissa

2009-09-01

C.R.DASH

body2009
JUDGMENT C.R. DASH, J. : The short point that arises in this revision is as to whether the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’ for short) has power to release the vehicle seized by the police on the allegation of transporting “Ganja” weighing 14 Kg. 30 grams in the interim zima of the petitioner, who is admittedly the registered owner of the vehicle in question especially in view of the provisions for confiscation of such vehicle under Section 60(3) of the Act. 2. Chapter 34 of the Code of Criminal Procedure (hereinaf¬ter referred to as ‘The Code’ for short) deals with disposal of properties by creating a trichotomy in the sense that competent criminal Court has been empowered to deal with the question at different stages and provisions to that effect have been enacted in Section 451, Section 452 and Section 457 of the Code. Section 451 of the Code deals with interim custody of the seized property and the question of disposal of such property arises where the property has been seized and/or otherwise produced before the Court. Applicability of Section 457 of the Code arises where the property has been seized by the police, but not produced before the Court. Section 452 of the Code takes care of disposal of property after enquiry or trial in any criminal Court is conclud¬ed. There is however, no provision for interim custody of the seized properties in the N.D.P.S. Act. In that view of the mat¬ter, it is to be seen whether the provisions in Section 60(3) of the Act for confiscation of conveyance etc. involved in transpor¬tation of contraband articles bar or exclude operation of Sec¬tions 451 and 457 of the Code. 3. Sub-section (3) of Section 60 of the Act provides for confiscation of animal or conveyance etc. Said provision reads thus : “60. involved in transpor¬tation of contraband articles bar or exclude operation of Sec¬tions 451 and 457 of the Code. 3. Sub-section (3) of Section 60 of the Act provides for confiscation of animal or conveyance etc. Said provision reads thus : “60. Liability of illicit drugs, substances, plants, arti¬cles and conveyances to confiscation- (1) xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance [or controlled substances], 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 which provides for procedure in making confiscation reads thus :- “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 accord¬ingly. (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 connec¬tion therewith is not known or cannot be found, the Court may inquire into and decide such liability and 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 connec¬tion 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 [or controlled substance] the opium popy, coca plant or cannabis plant is liable to speedy and natural decay, or if the Court is of opinion that it’s sale would be for benefits 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. Combined reading of Section 60(3) and Section 63 of the Act makes it clear that stage of confiscation of a conveyance comes only after the trial is over when the competent Court decides to proceed for confiscation under Section 60 of the Act. On the decision of the competent Court that Articles or conveyance described in Section 60 or 61 or Section 62 of the Act are liable to confiscation accordingly only after affording a reasonable opportunity of being heard to the person who may claim any right over the conveyance or articles. I have no hesitation to hold that any article or conveyance or for that matter a vehicle can only be confiscated under Section 60(3) of the Act only after the trial is concluded and the competent Court decides to proceed for confiscation. In my view I am supported by the decision reported in Khema v. State of Rajasthan, 2000 Crl. J., 2079 and Sujeet Kumar Biswas v. State of U.P., 2001 Crl. J., 4431. In my view I am supported by the decision reported in Khema v. State of Rajasthan, 2000 Crl. J., 2079 and Sujeet Kumar Biswas v. State of U.P., 2001 Crl. J., 4431. The object of the provision in Section 60(3) of the Act is to see that the vehicle or conveyance which is used for commission of an offence under the act is not made available to the person/persons who have indulged themselves in activities blameworthy under the Act. But if the owner of the vehicle or conveyance in question is not an accused in the offence alleged and is innocent, there is provision in Section 60(3) of the Act for him to prove the pre¬cautions taken by him against wrongful user of his vehicle or conveyance. In other words the legislature has made express provision in Section 60(3) of the Act to protect an innocent owner before confiscating his vehicle or conveyance. 4. Taking into consideration the stage of confiscation of a vehicle or conveyance and protection of an innocent owner in the provision of the Act itself, as discussed supra, the obvious question that arises for consideration is as to whether an inno¬cent owner of a vehicle or conveyance shall be made to suffer till an order for confiscation is passed or such an innocent owner is to be protected by taking resort to Section 451 or Section 457 of the Code. 5. Chapter-V of the Act provides for procedures relating to power to issue warrant and authorization, power of entry, search, seizure and arrest without warrant or authorization, power of seizure and arrest in public place and so on. Section 52 under Chapter-V of the Act provides for disposal of persons arrested and articles seized. Section 55 of the Act clearly mandates the police to take charge of articles seized and deliv¬ered. Section 51 of Act makes provisions for applicability of the provisions of the Code of Criminal Procedure in the manner pro¬vided in the Section which reads thus :- “51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures- The provisions of the Code of Criminal Procedure, 1973, shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act”. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures- The provisions of the Code of Criminal Procedure, 1973, shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act”. A cursory reading of the aforesaid provision is Section 51 of the Act makes it clear that the provisions of the Cr.P.C. will not apply if they are inconsistent with the provision of the Act in respect of warrants issued, arrests, searches and seizures made under the Act. There is provision in Section 55 of the Act interdicting an Officer-in-charge of a Police Station to take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of the Police Station and which may be delivered to him. There is no express provision in the act for release of the property like vehicle or conveyance in interim custody of a rightful owner. Provision contained in Section 51 of the Act does not expressly bar operation of the provision of the Cr.P.C. if they are not inconsistent with the provision of the Act. Taking into consideration the stage of the confiscation proceeding in the scheme of the trial as provided under Section 60(3) of the Act, safe custody of the articles seized and delivered to a police officer under Section 55 of the Act pending order of the Magis¬trate, absence of any specific provision in the Act for release of valuable articles like vehicle, etc. in the interim custody of the registered owner and especially in view of the mandate for confiscation of a vehicle or conveyance after the trial is con¬cluded and further fact that the commercial price of such an article is to be protected in the interest of justice, I have no hesitation to hold that operation of Sections 451 and 457 Cr.P.C. is not specifically excluded by Section 51 of the Act. In my view I am supported by the decisions rendered in the case of B.S. Rawant v. Shaikh Abdul Karim, 1989 Criminal Law Journal 1998, Madanlal v. State NCT of Delhi, 2002 Criminal Law Journal 2605; and Sujeet Kumar v. State of U.P., 2001 Criminal Law Journal 4431. In my view I am supported by the decisions rendered in the case of B.S. Rawant v. Shaikh Abdul Karim, 1989 Criminal Law Journal 1998, Madanlal v. State NCT of Delhi, 2002 Criminal Law Journal 2605; and Sujeet Kumar v. State of U.P., 2001 Criminal Law Journal 4431. Section 60(3) of the Act by making provision for protecting the interest of an innocent before confiscating his vehicle also lends support to my aforesaid view that an innocent owner till an order of confiscation is passed is entitled to interim custody of the vehicle pending trial of the case. 6. Such being the position of law, the safe custody of the property in question can be given in interim zima of the rightful owner if motion to that effect is made before the competent Court either under Section 451 Cr.P.C. or Section 457 Cr.P.C., as the case may be. 7. In the present case learned Special Judge has rejected the petition filed by the present petitioner under Section 457 Cr.P.C. mainly on two grounds :- (i) Non-completion of the investigation by the time the petition for interim release was filed; and (ii) Possibility of confiscation of the vehicle under Section 60(3) of the Act. 8. So far as the second question is concerned, I have already discussed in detail about the matter. So far as the first question is concerned, it is submitted by learned Additional Standing Counsel appearing for the State that investigation has been completed in the meantime, accused persons have already been released on bail and discreet enquiry by the police reveals that the present petitioner has no criminal antecedent. In view of such submission, I do not find any impediment so far as re¬leased of the vehicle in interim zima of the petitioner is con¬cerned. In the result the revision is allowed. Learned Special Judge is directed to release the vehicle in interim zima of the petitioner subject to conditions like property security/Bank security etc. as deemed fit and proper by him in the facts and circumstances of the case and subject to further condition that the petitioner shall make the vehicle available to the Court as and when required. Revision allowed.