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2016 DIGILAW 550 (CAL)

Raju Singha v. State of West Bengal

2016-07-14

RANJIT KUMAR BAG

body2016
JUDGMENT : R.K. Bag, J. The petitioner has preferred this revisional application challenging the order dated October 6, 2015 passed by learned Judge, Special Court, under N.D.P.S. Act, Malda, in Special Case No.11 of 2015, by which learned Judge of the trial court refused to return the seized vehicle to the petitioner on interim bond during pendency of the criminal case. 2. Learned counsel appearing on behalf of the petitioner submits that the vehicle bearing No. BW-65A/3030 belonging to the petitioner was seized on February 19, 2015 on the allegation of transporting 39 litres of phensedyl without any authority of law. Learned counsel specifically submits that the petitioner is the owner of the said seized vehicle and as such the vehicle should have been returned to the petitioner on interim custody during the pendency of the criminal case on any condition, but learned Judge of the trial court refused to return the seized vehicle to the petitioner on interim custody. He has relied on the decision of this Court in "Ainul Haque v. The State of West Bengal & Anr." (CRR 1152 of 2015 decided on January 7, 2015), in support of his contention that the bar under Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 will not be attracted in returning the seized vehicle on interim bond during the pendency of the criminal case. 3. Mr. Gupta, learned counsel appearing for the opposite party State submits that the petitioner has been arraigned as an accused in the criminal case by filing supplementary charge sheet and that the return of the seized vehicle to the petitioner at this stage will be barred under Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 4. It appears from the impugned order under challenge in the revision that on February 19, 2015 the vehicle bearing no.W.B.-65A/3030 was seized on the allegation of transporting 39 litres of phensedyl without any authority of law. It appears from the materials on record that the petitioner is the registered owner of the said seized vehicle. The question for consideration of the court is whether the seized vehicle can be returned to the petitioner on interim custody during the pendency of the criminal case, in spite of having provision for confiscation of the vehicle under Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The question for consideration of the court is whether the seized vehicle can be returned to the petitioner on interim custody during the pendency of the criminal case, in spite of having provision for confiscation of the vehicle under Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985. This issue has already been decided by this Court in "Ainul Haque v. The State of West Bengal & Anr." (CRR No. 1152 of 2015 decided on January 7, 2015). It is relevant to quote paragraphs 8, 9, 10 and 11 of "Ainul Haque v. The State of West Bengal & Anr." (supra) which are as follows:- 8. In "Sunderbhai Ambalal Desai v. State of Gujarat" reported in (2002) 10 SCC 283 the Supreme Court has directed the criminal court to exercise the power under Section 451 of the Code of Criminal Procedure for return of the seized articles on some conditions pending final decision of the criminal case. With regard to the return of the seized vehicle during pendency of the criminal case the Supreme Court has observed as follows in paragraph 17 of the said judgment: "17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles." 9. In "B.S. Rawant v. Shaikh Abdul Karim" reported in 1989(2) Bom CR 209 learned single Judge of the Bombay High Court held that the provisions of Section 451 or Section 457 of the Code of Criminal Procedure are not inconsistent with the provisions of the NDPS Act and as such the seized article or the seized vehicle may be returned to the rightful claimant as an interim custody on condition that the said seized vehicle or seized article may be produced before the trial court for taking final decision whether the said article or vehicle is liable to be confiscated or to be returned to the rightful claimant. It is held by the Bombay High Court in the said decision that the vehicle seized for transporting narcotic drug or psychotropic substance can be returned to the registered owner as an interim custody on condition of production of the said vehicle before the trial court at the appropriate stage of the proceeding under Section 451 or Section 457 of the Code of Criminal Procedure. 10. In "Tridip Mitra v. State of West Bengal" reported in 2006(2) CHN 198 learned single Judge of our High Court also laid down that during pendency of the trial learned Judge of the Special Court under NDPS Act has jurisdiction under Section 451 and Section 457 of the Code of Criminal Procedure to pass necessary order for return of the seized vehicle as an interim custody. It is relevant to quote paragraph 16 of the said judgment: "16. The decision of the Supreme Court in Sunderbhai Ambalal Desai and decision of the Bombay High Court mentioned above clearly reveals that, provisions of Sections 41, 42, 43, 51, 53, 55, 60 and 63 of the NDPS Act do not exclude operation of Sections 451 and 457(1) of the Code. The decision of this Court in Asis Bose v. State of West Bengal (supra) and Sri Jiban Aich v. State of West Bengal (supra) concerning Forest Act reveals that vehicle used in transporting forest produce should not be released normally but can be released imposing certain conditions which will have deterrent effect on the owner and putting different conditions including condition that the said vehicle henceforth shall not be used in indulging similar type of offence in future. Besides that, the general provisions laid down by the Supreme Court in Sunderbhai Amlalal Desai (supra) cannot be ignored as it was observed that the vehicles should not be kept in Court compound or thana compound for indefinite period till the conclusion of trial to allow the vehicles lose its value open to sky, sun and rain. The Supreme Court and this Court clearly laid down the consideration of the Court is production of the vehicle at the time of trial and also during confiscation proceeding if any confiscation proceeding is started at all and for securing that the said vehicle is not used in similar type of offence in future. The Supreme Court and this Court clearly laid down the consideration of the Court is production of the vehicle at the time of trial and also during confiscation proceeding if any confiscation proceeding is started at all and for securing that the said vehicle is not used in similar type of offence in future. If Government fiscal policy of fetching money by auction of vehicles after confiscation proceeding is considered then also it is desirable that the vehicles should be in good condition. A vehicle if kept at thana or Court compound open to sky for indefinite period would become scrap material within a year or two for want of maintenance. A scrap material cannot fetch such money which a good conditioned vehicle would fetch." 11. In "Rabi Ranjan Ojha v. The State of West Bengal" reported in (2011) 2 C.Cr. L.R. (Cal) 755 learned single Judge of our High Court interfered in the order of refusal to return the seized vehicle passed by learned Judge of the Special Court. In this case the vehicle was seized for carrying narcotic drug, but the said seized vehicle was returned to the registered owner on furnishing bank guarantee of Rs. 5,00,000/- on condition that the registered owner will produce the vehicle as and when called for by the court and the registered owner will not change the nature and character of the vehicle without the permission of the trial court." 5. In view of the proposition of law laid down by the Supreme Court, Bombay High Court and our High Court, I do not find any merit in the submission made on behalf of the State that the seized vehicle can be returned to the registered owner as an interim custody only on fulfilment of the conditions laid down under Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act. In my view, the seized vehicle can be returned to the petitioner being the registered owner of the said vehicle on furnishing of bond with surety and on condition that the petitioner will produce the seized vehicle before the trial court as and when called for and that he will not change the nature and character of the vehicle during the pendency of the criminal case before the trial court. 6. 6. As a result, the order dated October 6, 2015 passed by learned Judge, Special Court, under N.D.P.S. Act, Malda, in Special Case No.11 of 2015 is hereby set aside. The seized vehicle bearing No. BW-65A/3030 is returned to the petitioner on furnishing bond of Rs. 7 lakh with one registered surety of the same amount subject to the condition that the petitioner shall not alienate the seized vehicle or change the nature and character of the seized vehicle during the pendency of the criminal case and that the petitioner will produce the said seized vehicle before the trial court as and when called for and that the petitioner must produce the said seized vehicle before the trial court on conclusion of trial to decide whether the said vehicle will be confiscated or the same will be returned to the petitioner. 7. With the above observations, the criminal revision is disposed of. 8. Let a copy of the order be sent down to the learned court below for favour of information and necessary action. 9. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.