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Himachal Pradesh High Court · body

2021 DIGILAW 479 (HP)

Narcotics Control Bureau v. Sangeeta Bhardwaj

2021-07-29

SANDEEP SHARMA

body2021
JUDGMENT : Sandeep Sharma, J. 1. Instant Criminal Revision Petition filed under Section 397 of the Code of Criminal Procedure, lays challenge to order dated 28.02.2020 passed by learned Special Judge, Nalagarh, District Solan, Himachal Pradesh, in Cr.M.A. No. 66-NL/4 of 2020, whereby an application having been filed by the respondent for release of the vehicle in case FIR No. 66 of 2019, dated 7.11.2019, registered at NCB, Chandigarh, under Sections 18, 25, 28, 29 and 60 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (For short 'Act'), came to be allowed. 2. Precisely, the facts of the case as emerge from the record are that the application for release of the vehicle, as detailed hereinabove, came to be filed in the Court of learned Special Judge, Nalagarh, District Solan, H.P., on behalf of the respondent. Learned Special Judge vide order dated 28.08.2020 allowed the application and ordered that the custody of the vehicle be given to its rightful claimant i.e. respondent alongwith the documents after furnishing supardari in the sum of Rs. 10,00,000/- with one surety of the like amount to the satisfaction of Additional Chief Judicial Magistrate/JMIC, Nalagarh. While passing aforesaid order of release of vehicle, court below also put conditions that the respondent will produce the vehicle before this Court or police as and when required and she will not change the nature and character of the vehicle, especially the cavity made in the said vehicle during the pendency of the criminal case before this Court. 3. Being aggrieved and dissatisfied with the aforesaid order of release of vehicle made in favour of the respondent, petitioner-NCB, at whose instance FIR, as detailed hereinabove, came to be lodged has approached this Court in the instant proceedings, praying therein to set-aside the aforesaid impugned order. 4. I have heard learned counsel representing the parties and gone through the record carefully. 5. Mr. Ashwani Pathak, learned Senior Counsel representing the petitioner-NCB vehemently argued that impugned order in the instant proceedings is totally contrary to the provisions contained under Section 60 of the Act, which specifically provides for confiscation of conveyance used in carrying/transporting any narcotic drugs and psychotropic substance. 5. Mr. Ashwani Pathak, learned Senior Counsel representing the petitioner-NCB vehemently argued that impugned order in the instant proceedings is totally contrary to the provisions contained under Section 60 of the Act, which specifically provides for confiscation of conveyance used in carrying/transporting any narcotic drugs and psychotropic substance. He further submits that since owner of the conveyance sought to be released failed to prove that vehicle so used was without her knowledge, there was no occasion for the court below to order release of the vehicle allegedly used for transportation of the contraband, which is subject matter of the case. 6. Mr. Y.P.S. Dhaulta, learned counsel representing the respondent while supporting the impugned order of release made in favour of the respondent, contends that till the time factum with regard to involvement of the vehicle in the alleged incident is not proved in accordance with law, vehicle allegedly used for transportation of contraband cannot be confiscated, rather same is liable to be released in favour of its rightful owner after completion of necessary codal formalities. 7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that vehicle bearing registration No. HP-12-J-4403 (Mahindra Pick up) was apprehended by the police allegedly transporting the contraband prohibited under NDPS Act. Aforesaid vehicle though was owned by the respondent namely, Sangeeta Bhardwaj, but she had handed over the same to accused Kuldeep by way of higher purchase agreement. As per own case of the petitioner, sum of Rs. 16, 200/- per month was being paid by main accused Kuldeep against loan installments. Since, the case stands registered against the main accused Kuldeep and trial is under process, respondent being lawful owner of the vehicle, as detailed hereinabove, made an application for release of the vehicle, which prayer of her came to be resisted on behalf of the petitioner on the ground that vehicle in question can be again used by the accused for similar like offence. Court below before passing order on the application, called for the report and found that vehicle belongs to the respondent namely, Sangeeta Bhardwaj and she had given the same to the main accused Kuldeep on hire purchase agreement. Court below before passing order on the application, called for the report and found that vehicle belongs to the respondent namely, Sangeeta Bhardwaj and she had given the same to the main accused Kuldeep on hire purchase agreement. Since, challan is yet to be filed and as such, Court below while placing reliance upon the judgment rendered by Hon'ble Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638 and judgment rendered by this Court in case titled Ashok Kumar v. State of H.P., 2008 (2) Shim. LC 452, proceeded to allow the application and ordered for release of the vehicle. 8. Before ascertaining the correctness of the submissions made by learned counsel representing the petitioner-NCB, it would be apt to take note of the provisions contained under Section 60 of the Act, herein below:-- "60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.--2(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 3 [or controlled substances] 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 3 [or controlled substances] which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance 3 [or controlled substances], 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 3 [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." 9. Perusal of aforesaid provisions of law though clearly reveals that conveyance used in carrying any narcotic drug or psychotropic substance is liable to confiscation in terms of provisions contained in sub-section (1) or sub-section (2) of Section 60, unless the owner of the animal or conveyance proves that it was so used without his/her knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance had taken all reasonable precautions against such use. Though, in the case at hand, this Court finds that court below while ordering for release of the vehicle has not bothered to record the reasons, if any, assigned by the petitioner qua the involvement of her vehicle in the offence but yet same can be gathered from the pleadings adduced on record by the petitioner-NCB. Petitioner-NCB in the petition at hand itself has stated that the vehicle was though owned by respondent Sangeeta Bhardwaj, but had handed over the same to main accused Kuldeep on the basis higher purchase agreement. It has been averred that as per higher purchase agreement, sum of Rs. 16,200/- per month was being paid by main accused Kuldeep against the loan installment. Since it stood established on record that vehicle allegedly used by main accused for transporting the prohibited drugs of the narcotic substance was given by respondent Sangeeta Bhardwaj on higher purchase agreement, it can be safely inferred/concluded that original owner of the vehicle involved in the alleged in the incident had no intimation that vehicle given by her on higher purchase agreement is/was being used for transporting prohibited narcotic substance. Once vehicle in question on account of higher purchase agreement was in possession and control of main accused Kuldeep, it cannot be said that original owner i.e. respondent had not taken reasonable precautions against unauthorized use of the vehicle. 10. Once vehicle in question on account of higher purchase agreement was in possession and control of main accused Kuldeep, it cannot be said that original owner i.e. respondent had not taken reasonable precautions against unauthorized use of the vehicle. 10. Leaving everything aside, this court after having carefully perused the provisions contained under NDPS Act with regard to confiscation of illicit drugs, substances, plants, articles and conveyances finds that though the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plaint, materials, apparatus and utensils in respect of which or by means of which such offence has been committed are liable to be confiscated alongwith any animals or conveyance used in carrying/transporting any narcotic drugs or psychotropic substance or any article in terms of provisions of sub-section (1) or sub-section (2), but questions remains that at what stage order with regard to confiscation, which ultimately required to be passed by trial Court under Section 63 of the Act, shall be passed. Though, in terms of section 60 of the Act any psychotropic substance, as detailed in sub-section (i) and (ii) of section 60 is liable to be confiscated alongwith conveyance used for transportation immediately after its recovery, but order of confiscation, if any, can only be passed when Court arrives at a definite conclusion that article seized under the Act is liable to be confiscated under Sections 60, or section 61 and section 62 and, if it decides that the articles is so liable, it may order confiscation accordingly. 11. In the case at hand, learned senior counsel representing the petitioner was unable to point out order, if any, of confiscation as provided under Section 63 of the Act passed by the competent court of law. Sub-clause 2 of Section 63 further provides 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. Sub-clause 2 of Section 63 further provides 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. It has been further provided in the aforesaid provision of law that if any such article or thing, other than a narcotic drugs, psychotropic substances (controlled substance), the opium poppy, coca plant or cannabis plaint is liable to speedy and natural decay or if the court is of opinion that its sale would be for the benefit of its owner, it can direct it to be sold. 12. Since in the case at hand respondent specifically set up a case before the court below that she had handed over the vehicle involved in the incident being lawful owner to main accused Kuldeep on higher purchase agreement and same was being misused by Kuldeep without her knowledge, it would be too premature to conclude complicity, if any, of the vehicle in the alleged incident. Otherwise also, if it is presumed at this stage that vehicle owned by respondent was misused by main accused Kuldeep, by transporting prohibited narcotic substance, even then opportunity is required to be provided to rightful owner to prove that unauthorized use of the vehicle by the main accused was not in her knowledge. Since aforesaid question/issue can only be raised/decided in the trial; confiscation of the vehicle in terms of Section 60 of the Act prior to conclusion of the trial, cannot be ordered at this stage when charges are yet to be framed. 13. Hon'ble Apex Court in case titled Sunder bhai Ambalal Desai v. State of Gujarat, AIR 2003 Supreme Court 638, which have been otherwise taken note by learned court below has specifically dealt with the power under Section 451 Cr.P.C. exercised by the Court while dealing with the issue of disposal of seized articles. In the aforesaid judgment, Hon'ble Apex Court has categorically held that power under Section 451 Cr.P.C. should be exercised expeditiously and judiciously since it would serve the various purposes. 14. At this stage, it would be profitable to take note of para No. 7 to 20 of aforesaid judgment herein:-- "7. In the aforesaid judgment, Hon'ble Apex Court has categorically held that power under Section 451 Cr.P.C. should be exercised expeditiously and judiciously since it would serve the various purposes. 14. At this stage, it would be profitable to take note of para No. 7 to 20 of aforesaid judgment herein:-- "7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation. 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. 8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under- "4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance." 9. The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. 10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes 11. With regard to valuable articles, such as golden or sliver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest. 12. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest. 12. For this purposes, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:- (1) preparing detailed proper panchanama of such articles: (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. 13. For this purpose, the Court may follow the procedure of re-cording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition. 14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SIIO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed. Vehicles 15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. For currency notes, similar procedure can be followed. Vehicles 15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. 16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. 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. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. 19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. 19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing. 20. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same." 15. In para-20 of aforesaid judgment, which is reproduced hereinabove, Hon'ble Apex Court has specifically held that for Narcotic drugs also procedure under Section 451 Cr.P.C., should be followed by recording evidence and disposal. It has been further held in the aforesaid judgment that no useful purpose would be served by keeping seized vehicle at the police station for a long period. It is for the Magistrate to pass appropriate order immediately by taking personal bond and guarantee as well as security for return of the said vehicle, if required at any point of time. 16. Co-ordinate Bench of this Court in case titled Ashok Kumar v. State of Himachal Pradesh, 2008 (2) Shim. L.C. 452 while placing reliance upon the aforesaid judgment held that once petitioner undertakes to produce the vehicle before the Court as and when required, prayer for release of vehicle should be allowed. Hon'ble Apex Court in Rajendera Prasad v. State of Bihar and another, (2001) 10 SCC 88 , has held that custody of vehicle should be entrusted temporarily to its registered owner during the pendency of the trial. Their Lordships have held as under:-- "We are not deciding the question as to the title of the vehicle in dispute nor the correctness of the rival versions regarding the transactions relating to the vehicle. Their Lordships have held as under:-- "We are not deciding the question as to the title of the vehicle in dispute nor the correctness of the rival versions regarding the transactions relating to the vehicle. We do not want the vehicle to remain in the compound of the police station exposed to heat and cold because the automobile is likely to be lost to all in such situation. To avert this situation, we are inclined to entrust it temporarily to the appellant who is the ostensible name-holder in the registration certificate. The custody of the vehicle with the appellant will be on behalf of the court and this arrangement is only till the stage when the court passes the order regarding disposal of the property on conclusion of the trial". 17. Consequently, in view of the observations made herein above, this Court finds no illegality and infirmity in the impugned order dated 28.8.2020, passed by learned Special Judge, Nalagarh, District Solan, H.P., and accordingly same is upheld. The present petition stands disposed of in the aforesaid terms alongwith pending applications, if any.