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2021 DIGILAW 190 (KAR)

Thippeswamy S/o Basappa v. State of Karnataka

2021-02-01

H.P.SANDESH

body2021
ORDER : 1. Heard the learned counsel for the petitioner and also High Court Government Pleader appearing for the State. 2. The factual matrix of the case is that the complainant Mrs. Keerthana T.R. Excise Sub-Inspector-I, Molakalmuru Range registered a case on 13.12.2019 in FIR No. 14-2019-20/1409/SIE1/140909 against this petitioner for the offence punishable under Section 20(ii)(B), 25, 8(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). The allegation against this petitioner is that on 30.12.2019, as per the instructions of the Deputy Commissioner of Excise, the complainant along with staff based on the credible information, went near Tumakurlahally gate and at about 1.30 p.m. when the suspected vehicles were being checked, this petitioner came riding a motorcycle and on looking to the Excise officials, he became panic and after intercepting his vehicle and searching it, the ganja weighing 2 kgs. was found in the bag, which was being transported for its unauthorized and illegal sale. The vehicle and the narcotic drug were seized by drawing the panchanama and subjected the same for P.F. The case was registered and the police have also, after the investigation, filed the charge sheet. The petitioner was arrested on 13.12.2019 and remanded to Judicial Custody and thereafter on 05.07.2020, the petitioner was enlarged on bail. 3. The petitioner being the owner of the vehicle filed an application under Section 457 of Cr.P.C. for interim custody of the said vehicle and vide order dated 27.08.2020, the learned Sessions Judge was pleased to reject the said application on the ground that the petitioner is not entitled for the custody as per Section 60(3) of the NDPS Act. Hence, the present petition is filed invoking Section 482 of Cr.P.C. praying this Court to release the subject matter of the vehicle, which was seized in the said crime. 4. Learned counsel appearing for the petitioner would submit that the Sessions Judge ought to have considered the application of the petitioner for the interim custody and committed an error in not entertaining the application. Ever since the seizure of the aforesaid vehicle, the police have kept the same in the open premises without any protection from exposing to sun and air and if the vehicle is exposed to sun and air for longer period of time, the mechanical condition of the vehicle and its value would be deteriorated. Ever since the seizure of the aforesaid vehicle, the police have kept the same in the open premises without any protection from exposing to sun and air and if the vehicle is exposed to sun and air for longer period of time, the mechanical condition of the vehicle and its value would be deteriorated. Learned counsel also would submit that under Sections 36-C and 51 of the NDPS Act, the provisions of the Criminal Procedure Code is applicable when seizures are made under the NDPS Act. Under these circumstances, the learned Sessions Judge ought to have applied the provisions under Section 451/457(1) of Cr.P.C. and released the vehicle in favour of the petitioner. Hence, it requires interference of this Court to release the vehicle. 5. Per contra, the learned High Court Government Pleader appearing for the State would submit that the similar question was raised before this Court in Criminal Petition No. 4792/2020 and this Court dealt with the matter in detail referring to the judgment in the case of Union of India vs. Mohanlal and Another, (2016) 3 SCC 379 . Learned counsel also relied upon the judgment of the Kerala High Court in the case of Smart Logistics Represented by its Managing Partner M. Gopinath vs. State of Kerala, 2020 SCC Online Ker. 3760. Learned counsel referring to this judgment brought to the notice of this Court paragraph Nos. 18 to 26 and also paragraph Nos. 53 and 54 of the judgment, wherein the Kerala High Court made an observation that it is only proper to grant an opportunity to the petitioner to make a representation to the Drug Disposal Committee raising its claim over the vehicle. 6. Learned High Court Government Pleader also brought to the notice of this Court that today in Criminal Revision Petition No. 623/2020, the Coordinate Bench referred the matter to the larger bench since the matter requires to be considered by the larger bench. 7. 6. Learned High Court Government Pleader also brought to the notice of this Court that today in Criminal Revision Petition No. 623/2020, the Coordinate Bench referred the matter to the larger bench since the matter requires to be considered by the larger bench. 7. In reply to the arguments of the learned High Court Government Pleader appearing for the State, learned counsel for the petitioner brought to the notice of this Court the judgment of the Chhattisgarh High Court passed in Criminal Miscellaneous Petition No. 1374/2020 between the parties Tikeshwar Singh vs. State of Chhattisgarh, wherein it is held that vehicle seized for commission of offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985; interim custody can be granted under Section 451/457 of the Code of Criminal Procedure, 1973. The Chhattisgarh High Court while passing the order has taken note of and discussed Sections 60, 63 of the NDPS Act and also discussed Section 51 of the NDPS Act and so also considered Section 36-C of the NDPS Act. Having considered the relevant provisions, the High Court set aside the order of the learned Special Judge and remitted the matter to the Special Judge to pass an order on interim custody of the vehicle within 10 days from the date of the production of certified copy of this order as per the decisions of the Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat and in the matter of Ashok Kumar vs. State of Bihar and Others. 8. Having heard the submissions of the respective counsel and also on perusal of the relief sought in the present petition, the prayer is to release the vehicle for interim custody of the petitioner invoking Section 457 of Cr.P.C. Having perused the order of the Trial Court, the Trial Court referring to the judgment of the Apex Court in Ganga Hire Purchase Pvt. Ltd. vs. State of Punjab and Others, discussed the scope of Sub-Section (3) of Section 60 of the NDPS Act and comes to a conclusion that it is a deterrent measure to check the offences under the Act in question which have been found to be dangerous to the entire society and held that applicant does not deserve to be allowed. 9. 9. The Chhattisgarh High Court in the judgment referred supra, no doubt discussed in detail Sections 60, 63 and 51 of the NDPS Act and so also Section 36-C of the NDPS Act. Having perused the entire judgment, the Chhattisgarh High Court did not discuss the judgment of the Apex Court reported in the case of Union of India vs. Mohanlal and Another, 2016(1) SCC (Crl.) 864. The Coordinate Bench of this Court in Crl. Pet. No. 4792/2020 has made a reference to the judgment of the Apex Court in Mohanlal’s case while dealing with the similar situation and comes to a conclusion that in view of the specific provisions under the special enactment, the Magistrate or the Special Court cannot entertain the petition. However, given the liberty to the petitioner to approach the said Drug Disposal Committee to release the vehicle in question, which shall be considered by the Committee within 15 days after the receipt of an application from the petitioner. 10. Learned High Court Government Pleader appearing for the State would submit that in Criminal Revision Petition No. 623/2020, the matter has been referred to the larger bench since there are conflicting decisions in the judgment of this Court and also the judgments of the other High Courts and this matter also requires to be referred to the larger bench. 11. Having considered the principles laid down in the judgment of the Coordinate Bench of this Court and also the judgment of the Chhattisgarh High Court and so also the judgment of the Kerala High Court, the Kerala High Court in the Division Bench, when the matter was referred to larger bench, in similar circumstances, as referred by this Court, considered the reference and relying upon the principles laid down in the judgment of Mohanlal’s case of the Apex Court held that there is no two way of looking at it. Apparently, in such instances, going by the statutory provision under the Special Act, the power of the Magistrate to consider the claim under Section 451 of Cr.P.C. stands denuded. 12. Apparently, in such instances, going by the statutory provision under the Special Act, the power of the Magistrate to consider the claim under Section 451 of Cr.P.C. stands denuded. 12. Having perused the principles laid down in the judgment of the Apex Court as well as the judgment of the Kerala High Court and so also the judgment of the Chhattisgarh High Court, this Court has to take note of the very object of bringing the enactment i.e. Special Enactment with regard to the disposal of the articles of psychotropic substances and also the conveyance seized. The special provision is introduced under Section 52A of the Act and also the amendment made in the year 2014 is for inclusion of the conveyance. Thus, it is clear that if the vehicle which was involved in the psychotropic substances has been seized, while releasing the said vehicle for interim custody, the very object of the Special Enactment and the wisdom of the Legislature are to be taken note of. 13. Learned counsel referring the judgment of the Chhattisgarh High Court (supra) and also the judgment of Madhya Pradesh High Court in the case of Manoj Kumar Pandey vs. State of M.P. 2019 SCC Online MP 2315 and Tripura High Court in the case of Sri. Sankar Das vs. State of Tripura (Crl. Pet. No. 9/2018), would submit that the very judgment of the Apex Court passed in Mohanlal’s case has been distinguished and entertained the petition under Section 457 of Cr.P.C. 14. Having considered the submissions of both the respective counsels, the decision of the Chhattisgarh High Court, wherein the judgment of the Apex Court in Mohanlal’s case has not been discussed, but in other judgments the decision of the Apex Court referred supra has been discussed. However, this Court has to take note of the principles laid down in the judgment referred supra in the case of Union of India vs. Mohanlal and Another and Paragraph No. 30.3 of the said judgment is extracted hereunder:- “30.3. However, this Court has to take note of the principles laid down in the judgment referred supra in the case of Union of India vs. Mohanlal and Another and Paragraph No. 30.3 of the said judgment is extracted hereunder:- “30.3. Cases in which the proceedings are still pending before the Courts at the level of trial court, appellate court or before the Supreme Court: In such cases the heads of the department concerned shall ensure that appropriate applications are moved by the officers competent to do so under Notification dated 16-1-2015 before the Drugs Disposal Committees concerned and steps for disposal of such narcotic drugs and psychotropic and controlled substances and conveyances taken without any further loss of time.” 15. The Apex Court, in the said decision, while dealing with the similar circumstances, the cases in which the proceedings are still pending before the Courts at the level of the Trial Court, the Appellate Court or before the Supreme Court, it is made clear that the heads of the department concerned shall ensure that appropriate applications are moved by the officers competent to do so under Notification dated 16.01.2015 before Drugs Disposal Committees concerned and steps for disposal of such narcotic drugs and psychotropic and controlled substances and conveyance taken without any further loss of time, specific direction was given to the concerned department to ensure that appropriate applications are moved by the officers competent to do so and when the Apex Court specifically dealt with the matter with regard to when the matter is pending at the level of the Trial Court, in the case on hand also, the petitioner has approached the Magistrate invoking Section 451 of Cr.P.C. and the same has been rejected. It is also to be noted that when the specific provision has been made under the Special Enactment, the Court has to take note of the wisdom of the Legislature in bringing the special enactment to deal with the interim custody of the vehicle. 16. The Co-ordinate Bench of this Court in Crl. R.P. No. 623/2020 vide order dated 12.11.2020 passed an order to release the vehicle. Thereafter, the State filed an application in the very same petition to recall the order on the ground that the relevant provisions of law was not brought before this Court with regard to bar under Section 52A of the NDPS Act. R.P. No. 623/2020 vide order dated 12.11.2020 passed an order to release the vehicle. Thereafter, the State filed an application in the very same petition to recall the order on the ground that the relevant provisions of law was not brought before this Court with regard to bar under Section 52A of the NDPS Act. This Court considered I.A. No. 1/2020 and dismissed the application. However, referred the matter to the Larger Bench making an observation that Section 52A of the NDPS Act cannot take away the jurisdiction of the Magistrate or the Special Court to decide the question as to the entitlement of the claimant for the interim custody of the seized vehicle. It is also observed that the notification issued by the Central Government runs counter to Sections 60 and 63 of the NDPS Act. It is further observed that these questions, therefore, require to be considered by the Larger Bench. 17. The Apex Court in the judgment in the case of Mohanlal (supra) in Paragraph No. 30.3 has held that cases in which the proceedings are still pending before the Courts at the level of Trial Court, Appellate Court or before the Supreme Court, in such cases the heads of the department concerned shall ensure that appropriate applications are moved by the officers competent to do so under notification dated 16.01.2015 before the Drugs Disposal Committees concerned and steps for disposal of such narcotic drugs and psychotropic and controlled substances and conveyances taken without any further loss of time. 18. This Court having considered the direction of the Apex Court, instructed the learned High Court Government Pleader to verify as to whether any steps has been taken as directed by the Appellate Court and the learned High Court Government Pleader submits that no such steps has been taken even though the judgment was passed in 2016. It is pertinent to note that vide notification dated 16.01.2015, there is no provision for release of such narcotic drugs and psychotropic and controlled substances and conveyances. But the Apex Court in the said judgment held that the same has to be dealt with by the Drugs Disposal Committee. When the notification is silent with regard to the procedure to be adopted for the release of interim custody, there is difficulty to take the interim custody of the same. 19. But the Apex Court in the said judgment held that the same has to be dealt with by the Drugs Disposal Committee. When the notification is silent with regard to the procedure to be adopted for the release of interim custody, there is difficulty to take the interim custody of the same. 19. It has to be noted that the judgments referred above including the judgment of the Kerala High Court when the matter was referred, has categorically held that the matter has to be dealt with under Section 52A of the NDPS Act. The Co-ordinate Bench of this Court also considering the judgment of Kerala High Court in Crl. Pet. No. 4792/2020 directed to approach the Drugs Disposal Committee for the release of the vehicle. Now there are contrary judgments. One Co-ordinate Bench of this Court in Crl. Pet. No. 4792/2020 vide order dated 24.11.2020 passed the order to approach the Drugs Disposal Committee and the other Co-Ordinate Bench of this Court in Crl. R.P. No. 623/2020 vide order dated 12.11.2020 allowed the petition for release of the vehicle, but subsequently on filing of the I.A., the matter is referred to the Larger Bench. It is also important to note that Madhya Pradesh High Court in the judgment in the case of Manoj Kumar Pandey (supra) discussed Sections 52A, 60 and 63 of the NDPS Act and ordered to release the vehicle in favour of the applicant. 20. Having considered the judgments referred supra, there are conflicting judgments and the Co-ordinate Benches of this Court also passed conflicting judgments. When such being the case, when the matter is already referred to the Larger Bench by the Co-Ordinate Bench of this Court while considering I.A. No. 1/2020 in Crl. R.P. No. 623/2020, it is appropriate to refer this matter also to the Larger Bench to consider the questions involved in the matter on record with regard to Sections 52A, 60 and 63(2) of the NDPS Act as to who is the competent authority to release the same. Even in the notification dated 16.01.2015, no provision or modality is prescribed for release of vehicle to interim custody. In the absence of procedure evolved for release of vehicle also, the matter has to be considered by the Larger Bench. In the case on hand, the question involved is in respect of conveyance and not narcotic drugs substances. Even in the notification dated 16.01.2015, no provision or modality is prescribed for release of vehicle to interim custody. In the absence of procedure evolved for release of vehicle also, the matter has to be considered by the Larger Bench. In the case on hand, the question involved is in respect of conveyance and not narcotic drugs substances. Hence, the office is directed to place this matter before the Hon'ble Chief Justice to refer this matter also to the Large Bench in view of the order passed in Crl. R.P. No. 623/2020 to take up the matter before the Larger Bench, since the issue involved in the matter is similar in nature.