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2019 DIGILAW 976 (GAU)

Pankaj Kr. Ghosh v. State of Assam

2019-09-02

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. 1. None appears for and on behalf of the appellant to press the appeal. However, being an old pending one and after considering the nature of challenge before the appeal, this Court propose to dispose of the appeal in presence of the learned Additional Public Prosecutor, Assam. 2. It may be mention here that a case was registered by Gauripur PS on 22.07.2009 on the allegation that on receipt of the secret information about forcefully taking away a truck towards Astomirchar in Dhubri, the police proceeded and apprehended a truck No. AS-16/8809 and after checking it was found that the driver of the truck, Moinul Haque was driving the vehicle carrying nine bags of ganja. Gauripur PS Case No. 280/09 under Section 20 of NDPS Act was registered. Police seized the truck as well as the Ganja. The sample of seized ganja were sent to FSL. The said driver faced the trial and denied the charge under Section 20(b) of the NDPS Act. 3. The learned court on examination of the seven witnesses produced by prosecution and in the light of all materials on record came to a finding that as per the allegation in the FIR itself it depicts that some miscreants took away the aforesaid truck forcefully and by the time police arrived and the said miscreants fled away and only the driver of the truck who was found inside the vehicle was brought to the police station. The Court was of the view that the said seized Ganja was recovered from the truck but the driver was not in conscious position and the real assailant fled away from the place of occurrence. It was found and held that the driver, who merely drives the vehicle in absence of miscreants cannot be presume to be in possession of ganja, as the other culprits fled away. After observing all details, the learned trial court finally held that the prosecution failed to bring home the ingredients of the offence under Section 20(B) of the NDPS Act against the accused and the accused was acquitted by its order dated 12.11.2010 in Special Case No. 16/2019. After observing all details, the learned trial court finally held that the prosecution failed to bring home the ingredients of the offence under Section 20(B) of the NDPS Act against the accused and the accused was acquitted by its order dated 12.11.2010 in Special Case No. 16/2019. In the said order the learned court has also observed that as the said truck AS-16-8809 was used by some miscreants in transporting the narcotic drug and those persons did not come to the picture to face the trial and accordingly he directed that the aforesaid vehicle be confiscated under Section 60 of the NDPS Act. It is further directed that after auction sell of the aforesaid vehicle in presence of the Magistrate the said amount was deposited before the Treasury. 4. The State has not come forward to challenge the aforesaid finding but the present appellant, who is the registered owner of the said vehicle has now challenge the findings of the court regarding confiscation, by way of this appeal. It is contended by the appellant that he is the registered owner of the vehicle and he himself is a driver and running his vehicle for public purpose and some miscreants along with the accused Moinul Haque stolen his vehicle on 20.06.2009 for such illegal purpose and he accordingly lodged an FIR before the Gauripur PS and it is on the basis of the said information police apprehended the aforesaid truck along with the driver and the miscreants fled away. Being the registered owner of the vehicle and also no way connected with the aforesaid NDPS case vide GDR Case No. 280/2009 such an order of confiscation should not have been made by the learned trial court without giving him an opportunity of being heard and as such the impugned order of confiscation is liable to be set aside. 5. Thus, limited question has been raised before this Court by way of this appeal as to whether the trial court can pass confiscation of the vehicle related to the case in terms of the Section 60 of NDPS Act as has been passed in the present case. To get the answer we have to appreciate the provision of Section 60 onwards of the NDPS Act. Now Section 60 and 63 provides as follows: "60. To get the answer we have to appreciate the provision of Section 60 onwards of the NDPS Act. Now Section 60 and 63 provides as follows: "60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation:- (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2) Any narcotic drug or psychotropic substance lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation. (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. Section 63 provides the procedure for making confiscations: (1) In the trial of offense 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 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 connection 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 connection 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. Provides further that if any such article or thing, other than a narcotic drug, psychotropic substance, the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its scale would be for the benefit of its owner, if 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 scale." Thus, the aforesaid provision clearly indicates that confiscation is not an automatic one but it is subject to inquiry by the trial court and firstly it has to justify whether such article is liable to be confiscated in terms of the Section 60 of the Act. 6. Now, in the instant case, as has been found that learned trial court has passed the aforesaid order of confiscation without following any procedure as narrated in Section 60 and 63 of the Act, which has rendered such decision unsustainable in the eye of law. In the evidence it has came up that the present appellant is the owner of the said truck and the said truck was given zimma to the present appellant (cross-examination of the PW-7). This aspect of the matter escape from the notice of the court while passing the order that the zimma of the vehicle was already given to the owner of the vehicle/appellant. Accordingly, the present appeal succeeds and the impugned order so far as regard the confiscation of the vehicle, under challenge is hereby quashed and set aside. 7. Return the LCR along with a copy of this order.