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2022 DIGILAW 2054 (RAJ)

Deva Ram v. State

2022-07-19

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT Pushpendra Singh Bhati, J. - Learned counsel for the petitioner submits that the accused Deva Ram was arrested and charged under Section 8/15 of the NDPS Act. Learned counsel further submits that from the possession of Deva Ram, 4 kg 200 gms of poppy husk/straw was recovered and also an amount of Rs. 4,91,100/- was recovered. 2. Learned counsel for the petitioner further submits that before the trial could be completed, the accused-Devaram died and he is survived by his wife and two small children. Learned counsel further submits that wife and minor children do not have much means for survival and the amount which belonged to deceased Devaram ought to be released to his wife and children. 3. Learned counsel for the petitioner also submits that NDPS Act envisages acquittal and conviction, but there is no direct law upon abatement and since the trial itself is abated, therefore, any kind of proof regarding the amount having been a sale proceeds would not be possible. Learned counsel further submits that the provisions of Sections 60, 61, 62 & 63 of NDPS Act deal with the situation where the person is acquitted or convicted but here is in the present case, the trial has abated because the accused is died and wife and minor children are seeking the amount to be released in their favour. 4. Learned counsel for the petitioner has relied upon the judgment rendered by Hon'ble Delhi High Court in Jagwat Prasad v. Delhi Administration reported in 1992 (2) RCR (Criminal) 460, relevant para of the judgment reads as under:- "(6) No doubt this section provides that whether the accused is convicted or acquitted or discharged still the Court has the power to confiscate provided the matter falls under Section 60, 61 or 62 of the said Act. In the facts and circumstances of this case it is to be seen whether the case of the petitioner is covered either under Section 60, 61 or 62 and if not why should his money be not returned. Counsel for the State admits that the case is not covered under Section 60 or 61 but contended that this case is covered under Section 62. Counsel for the State admits that the case is not covered under Section 60 or 61 but contended that this case is covered under Section 62. I am afraid, I am not in agreement with the contention of the learned counsel for the State because the bare reading of Section 62 makes it clear that the prosecution has to have a prima facie evidence to link this amount with the sale proceeds of any drug. Merely because the amount of Rs. 55,000.00 was lying at the same place wherever 50 grams, of heroin was recovered, to my mind, would not show that it was the amount of a sale of any drug. On the contrary petitioner has prima facie Filed evidence indicating that this amount he collected and saved for the marriage of his youngest daughter. Prosecution ought to have verified this fact of loan and sale of scooter. In response to the petitioner's application before learned A.C.M.M., the defense taken was that this amount must have been earned by selling heroin because the accused has no other source of income. He was trading in heroin and since the amount and the heroin was recovered from the same place, therefore, presumption should be drawn that it was from the sale of the drug. This reply does not indicate that the prosecution is sure that the amount of Rs. 55,000.00 was the sale proceeds of any drug or subsistence as required under section 62 of the said Act. Mr. Grover further contended that the provision of Section 68A would apply to the facts of this case. I think this contention of Mr. Grover cannot be accepted. It is not only when the case is finally determined and the person is held guilty that the Court would have the jurisdiction to confiscate the article or the drug as the case may be. In fact Section 63 gives ample power to the Court to confiscate any article or things seized under this Act irrespective of the fact whether the accused is convicted, acquitted or discharged. The question for determination at the moment is not whether the amount of Rs. 55,000.00 can be confiscated at this stage or not but whether this amount of Rs. 55,000.00 is the sale proceeds of the drug or the petitioner had the knowledge? The question for determination at the moment is not whether the amount of Rs. 55,000.00 can be confiscated at this stage or not but whether this amount of Rs. 55,000.00 is the sale proceeds of the drug or the petitioner had the knowledge? (7) In the absence of any material having come on record at this stage to prima facie link this amount with the sale proceeds, it will be in the interest of Justice and fairplay if this amount is refunded to the petitioner subject to the terms which may be imposed by the trial court." Learned Public Prosecutor opposes the petition, but is unable to point out that as to how it can now be established by anyone without the accused having been survived as to whether the amount in question was the sale proceeds out of the contraband or not. Learned Public Prosecutor however, fairly submits that abatement is a unique condition where the accused has died even before the trial is completed and thus, establishing anything negative or positive would be almost impossible. This Court, after hearing learned counsel for the parties and perusing the record of the case as well as provision of the NDPS Act, particularly, Section 60, 61, 62 & 63, finds that the condition of abatement does not squarely fall in any of the provision. At this stage, this Court has to look into the fact whether it is possible for the parties either of them to prove or not to prove that the amount was the sale proceeds out of the contraband in question. The clear answer is that once the accused has expired before the completion of the trial arrival at a definite conclusion by the learned court below would be difficult. This Court is also conscious of the fact that wife and children are financially weak and may require the amount for their livelihood and essential expenditure. The clear answer is that once the accused has expired before the completion of the trial arrival at a definite conclusion by the learned court below would be difficult. This Court is also conscious of the fact that wife and children are financially weak and may require the amount for their livelihood and essential expenditure. Without going into the merits of the case as well as looking to the fact that the accused has died before the trial could be completed; the trial has abated; the accused is survived by wife and two small children; the abatement is not dealt with in Section 60, 61, 62 & 63 of NDPS Act, and the precedent law laid down by the Hon'ble Delhi High Court in Jagwat Prasad v. Delhi Administration (supra), the present petition is allowed and the impugned order dated 14.07.2020 passed by learned Special Sessions Judge (NDPS Act Cases), Sojat, District Pali is quashed and set aside. Thus, in the peculiar facts and circumstances and in absence of any material having come on record at this stage of abatement of trial to prima-facie link the amount with the sale proceeds of the contraband, in the interest of justice and fairplay, the amount in question, which has been seized by the State Machinery, is directed to be released in favour of widow of the accused-Devaram within a period of 30 days from today. All pending applications also stand disposed of accordingly.