Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 931 (RAJ)

Lalita Devi v. State of Rajasthan

2014-04-12

PRASHANT KUMAR AGARWAL

body2014
JUDGMENT 1. - The petitioner has preferred this Criminal Misc. Petition under Section 482 Cr.P.C. against the order dated 8.5.2013 passed by the Sessions Judge Tonk in Criminal Revision Petition No.87/2012 whereby the learned revision Court while dismissing the revision petition filed by the petitioner has uphe and affirmed the order dated 6.7.2012 passed by the Chief Judicial Magistral Tonk in respect of FIR No. 164/2012 registered at Police Station Kotwali, Tonk for offence under Section 8/20 of the NDPS Act. By way of its order dati 6.7.2012, the Chief Judicial Magistrate, Tonk dismissed the application filed the petitioner under Section 451 Cr.PC. for temporarily releasing the selzi vehicle in his favour on 'Supurdginama'. 2. Brief relevant facts for the disposal of this petition are that FIR No. 164/2012 came to be registered at Police Station Kotwali, Tonk on 5.6.20121 offence under Section 8/20 of the NDPS Act against one Shri Kamal @ Ram on the premise that 210 grams of narcotic drug (Ganja) was recovered fit his possession when he was carrying it in a polythene bag in his hand riding on a motorcycle bearing registration No. RJ-26-SG-0989. At the time recovery of the aforesaid contraband, seizure memo regarding seizure oft aforesaid motorcycle was also prepared and it is said that after investigation charge-sheet for the aforesaid offence has already been filed against Kamal @ Ram. Claiming to be the registered owner of the aforesaid the present petitioner filed an application under Section 451 Cr.PC, temporarily releasing the vehicle in his favour during pendency of the trial the same was dismissed by the Chief Judicial Magistrate, Tonk vide its on dated 6.7.2012 mainly on the ground that in such cases the seized cannot be released even temporarily during pendency of the trial. Fee aggrieved, the petitioner filed the aforesaid revision petition, but the same also dismissed by way of impugned order dated 8.5.2013 almost on the sin ground. Dissatisfied with the aforesaid orders, the petitioner is now before Court by way of this Criminal Misc. Petition. 3. Fee aggrieved, the petitioner filed the aforesaid revision petition, but the same also dismissed by way of impugned order dated 8.5.2013 almost on the sin ground. Dissatisfied with the aforesaid orders, the petitioner is now before Court by way of this Criminal Misc. Petition. 3. Inviting attention towards Section 61 of the NDPS Act learned court for the petitioner first of all submitted that according to this provision goods used for concealing any narcotic drug which is liable to confiscate under the Act is also liable to confiscation, but in the present case it is not case of the prosecution itself that the aforesaid motorcycle was used by accused or any other person including the petitioner to conceal the recover narcotic drug (Ganja), rather the case of the prosecution is that contraband was recovered when the accused was carrying it in a pith bag in his hand. Thus, according to the prosecution case the motorcycle not liable to confiscation and, therefore, it is in the interest of justice temporarily released in favour of the petitioner during pendency of the trip was further submitted that even if for the sake of arguments it is admitted the seized vehicle is liable to be confiscated even then it is required to released during pendency of the trial as the well settled legal position is the proceedings for confiscation of a seized vehicle would commence only the conclusion of the trial. in the present case, charge-sheet has been against the accused only and the trial may take its own time for its condition and if in the meanwhile the seized vehicle is not temporarily released condition may deteriorate day by day and its value would be read substantially as it is lying in an open place at the Police Station and the has no proper arrangement for its care. it was also submitted that charge-sheet has not been filed against the petitioner although he is registered owner of the aforesaid vehicle. 4. In support of his submissions, learned counsel for the petitioner relied upon the cases of Usman Khan v. State of Rajasthan reported in 2009 s WLC (Raj.)UC 217 , Makhan Singh v. State of Rajasthan & anr. it was also submitted that charge-sheet has not been filed against the petitioner although he is registered owner of the aforesaid vehicle. 4. In support of his submissions, learned counsel for the petitioner relied upon the cases of Usman Khan v. State of Rajasthan reported in 2009 s WLC (Raj.)UC 217 , Makhan Singh v. State of Rajasthan & anr. reported in 2008 (2) R.Cr.D. 209 (Raj.) , Vijay Kumar v. State of Rajasthan, reported in 2001 (2) R.Cr.D. 161 (Raj.) , Prakash Chand v. State of Rajasthan reported in 2010 (1) Cr.L.R. (Raj.) 507 and Hadman Ram Dhayal v. State of Rajasthan reported in 2009 (1) Cr.L.R. (Raj.) 727 . 5. On the other hand, learned Public Prosecutor controverting the submissions made on behalf of the petitioner, submitted that the material available on record shows that the narcotic drug (Ganja) was recovered from the possession of the accused while he was transporting it from one place to another riding on the aforesaid motorcycle and, therefore, involvement of the vehicle is also shown. it was further submitted that according to Section 60 of the Act any vehicle used in carrying any narcotic drug is also liable to confiscation unless the owner of the vehicle proved 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 vehicle and that each of them had taken all reasonable precautions against such use. it was also submitted that proceedings for confiscation of a vehicle can be Initiated against the owner at any stage and it is not the requirement of law that it can be Initiated only at the conclusion of the trial against the accused. Attention was also invited to the fact that the proceedings for confiscation of a vehicle can be initiated against the owner : even If accused against whom charge-sheet was filed for an offence under the Act has been acquitted by the trial Court. 6. I have considered the submissions made on behalf of the respective parties and perused the material made available on record as well as the relevant legal provisions and the case law. 7. It has not been disputed that "Ganja" is also a narcotic drug within the meaning of provisions of the Act. 6. I have considered the submissions made on behalf of the respective parties and perused the material made available on record as well as the relevant legal provisions and the case law. 7. It has not been disputed that "Ganja" is also a narcotic drug within the meaning of provisions of the Act. According to clause (viii) of Section 2 of the Act "conveyance" means a conveyance of any description whatsoever and Included any aircraft,, vehicle or vessel. it has also not been disputed that motorcycle is also a conveyance/vehicle within the meaning of the provisions of the Act. According to Clause (xxviii) of Section 2 of the Act "to transport" means to take from one place to another within the same State or Union territory. Section 8 of the Act, apart from others, prohibits transport of narcotic drug from one place to another without a valid licence, permit or authorisation. in the present case from the reading of FIR copy of which has been made available on record, it is revealed that narcotic drug (Ganja) weighing 210 grams was recovered from the possession of the accused-Shri Kamal Kumar when he was carrying it in a polythene bag in his hand while riding on the aforesaid motorcycle. it is thus prima facie clear that the aforesaid motorcycle was in fact used to carry the seized narcotic drug from one place to another although it was in his hand in a polythene bag and was not concealed in it. 8. Section 20 of the Act, apart from others, provides punishment for transport of narcotic drug (Ganja) from one place to another. Section 25 of the Act provides that whoever being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of the Act, shall be punishable with the punishment provided for that offence. it is thus clear that by this deeming provision owner of the vehicle is equally liable for the commission of an offence under the Act if he knowingly permits it to be used for the commission of an offence under the provisions of the the Act. it is thus clear that by this deeming provision owner of the vehicle is equally liable for the commission of an offence under the Act if he knowingly permits it to be used for the commission of an offence under the provisions of the the Act. According to Section 35 oi the Act in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence oi such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. in the present case, although till date charge-sheet has not been filed against the present petitioner for offence under Section 25 of the Act, but it cannot be denied that according to the aforesaid provision he is liable to be prosecuted and charge-sheet may also be filed against him. At this stage of the proceedings in the light of Section 35'of the Act presumption can be raised that the petitioner knowingly permitted the accused Shri Kamar Kumar to use the aforesaid vehicle to carry the recovered narcotic drug from one place to another. Under Section 43 of the Act power has been conferred upon the authorised officer to seize in any public place the conveyance liable to confiscation under the provisions of the Act If he has reason to believe that it may furnish evidence of the commission of the offence punishable under the provisions of the Act. Thus, according to this provision not only the narcotic drug, but also the vehicle which has been used in a public place to transport such narcotic drug can be seized by the authorised officer. in the light of the facts averred in the FIR, at this stage of the proceedings it cannot be said that the aforesaid vehicle has been illegally seized. 9. According to sub-section (3) of Section 60 of the Act any conveyance used in carrying narcotic drug shall be liable to confiscation unless the owner of the conveyance proves that it was so used without his knowledge connivance and that he had taken all reasonable precautions against such use. 9. According to sub-section (3) of Section 60 of the Act any conveyance used in carrying narcotic drug shall be liable to confiscation unless the owner of the conveyance proves that it was so used without his knowledge connivance and that he had taken all reasonable precautions against such use. it is thus clear that if any vehicle is found to be used in carrying any narcotic drug it is also liable to be confiscated and burden is on the owner of the vehicle to prove otherwise. Learned counsel for the petitioner has wrongly relied upon Section 61 of the Act as it provides for confiscation of goods used for concealing narcotic drug and psychotropic substance, which are liable to confiscation. According to explanation to Section 61 of the Act "goods" does not Include conveyance as a means of transport. in the present case, it is not the case of the prosecution that the seized vehicle was used to conceal any narcotic drug. Otherwise also, a vehicle is not included in the category oi goods, within the meaning of the provision. 10. Section 63 of the Act provides for the procedure for confiscation, but it nowhere provides that the proceedings for confiscation of a vehicle or any other article can be Initiated only after conclusion of trial against the accused. According to this provision irrespective of the result of the trial order for confiscation can be made. I am of the considered view that proceedings for confiscation of a vehicle can be Initiated without waiting for the conclusion oi the trial more particularly in a case in which the owner of the vehicle has not been made accused. A complete procedure has been prescribed under Sections 60, 61, 62 & 63 of the Act for confiscation of contraband and the articles used for the purpose of dealing in contraband and the conveyance and irrespective of the decision in the trial, the Court has power to pass an order regarding confiscation. Whether the owner of the conveyance is tried along with other accused or not create any restraint on the authority of the Court to pass on order regarding confiscation of the conveyance? Whether the owner of the conveyance is tried along with other accused or not create any restraint on the authority of the Court to pass on order regarding confiscation of the conveyance? To safeguard the interest of the owner, it is expected from the Court concerned 5 that the independent proceedings regarding confiscation may be commenced as soon as the charge-sheet is filed instead of waiting for the trial to come to an end and then to start such proceedings. By adopting such course, the chance of the vehicle being wasted or damaged would be minimized. If this course is adopted by the Court, the plea taken by the owner of the vehicle for it avoiding confiscation can be considered at the earliest and even the need to temporary release the vehicle can be avoided. Temporary release of he vehicle before finally deciding the question of confiscation would not be in the interest of justice as the owner by adopting delaying tactics may avoid his liability. Hon'ble Supreme Court in the case of State of Karnataka v. K. Krishnan, reported in 2000 Cr.L.J. 3971 (SC) , while dealing with the provisions of Karnataka Forest Act which also provides for confiscation of a vehicle used in commission of a forest offence has held as below:- "Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the 2 same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer of the Appellate Authority has to specify the reasons which justify such release, apparently, prima facies excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattles, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come." The NDPS Act also provided for confiscation of a vehicle if it is found to be used for carrying a narcotic drug and, therefore, the observations made by Hon'ble Supreme Court in the aforesaid case are equally applicable to the present case also. it is pertinent to note that the authorised officer under the provisions of Karnataka Forest Act in the aforesaid case ordered to release the seized Jeep to the Interim custody of the owner of the vehicle on the condition that he shall furnish irrevocable bank guarantee from a scheduled bank which shall be renewable from time to time till the disposal of the case charged against the Jeep. The owner of the vehicle being not satisfied with the aforesaid order, filed a petition under Section 482 of the Code of Criminal Procedure in the High Court of Karnataka and the High Court modified the order of the authorised officer in the manner that the aforesaid condition of bank guarantee was removed. The owner of the vehicle being not satisfied with the aforesaid order, filed a petition under Section 482 of the Code of Criminal Procedure in the High Court of Karnataka and the High Court modified the order of the authorised officer in the manner that the aforesaid condition of bank guarantee was removed. The State of Karnataka challenged the same before the Hon'ble Apex Court. in the last para of the judgment Hon'ble Supreme Court observed that it even does not approve the order of the Authorised Officer, who released the vehicle on the condition that the owner would furnish irrevocable bank guarantee. it is thus clear that Hon'ble Apex Court was of the firm view that in such matters in which the vehicle is liable to be confiscated normally it is not be released even temporarily during pendency of trial or confiscation proceedings, in the present case also as the seized vehicle is liable to be confiscated by the Court at the conclusion of the trial or of the confiscation proceedings to be initiated against the petitioner, I am of the view that no illegality or perversity has been committed by the Courts below if they refused to release the seized vehicle and dismissed the application filed by the petitioner. So far as the case law relied on by the learned counsel for the petitioner is concerned, in view of the principle laid down by the Hon'ble Supreme Court in the aforesaid case, the same is of no help to the petitioner. 11. Consequently, the petition being meritless Is, hereby, dismissed. However, it is expected from the trial Court to Immediately initiate confiscation proceedings against the petitioner and to conclude the same at the earliest and as far as possible within a period of two months from the date on which reply is filed by the petitioner to the notice for confiscation of the vehicle.Petition dismissed. *******