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2022 DIGILAW 788 (GAU)

Devendar Kumar v. Union Of India

2022-07-22

ROBIN PHUKAN

body2022
JUDGMENT : 1. This revision petition, under Sections 401/397 of the Code of Criminal Procedure, is directed against the order dated 09.03.2022, passed by the learned Addl. Sessions Judge, FTC, Cachar, Silchar, in NDPS Case No. 09/2019, and also against the order dated 18.01.2022, passed by the learned Addl. Sessions Judge, FTC, Cachar, Silchar, in NDPS Case No. 09/2019, corresponding to Departmental Case No. 04/CL/NDPS/DRI/SIL/2018-19, dated 07.01.2019. It is to be noted here that vide impugned order, dated 09.03.2022, the learned Addl. Sessions Judge, FTC, Cachar, Silchar, has directed Directorate of Revenue Intelligence (DRI) to arrange for disposal of Truck bearing registration No. HR55-P-3867 (HR-69-B-7255) observing all the legal formalities and by putting it to public auction, after wide publicity of such auction and shall also prepare the inventory and ascertain the minimum valuation from authorized Govt. Officer of Transport Department. And vide order dated 18.01.2022 the Addl. Sessions Judge, FTC, Cachar, Silchar, has rejected the petition filed by the petitioner - Shri Devender Kumar, seeking interim custody of Truck bearing registration No. HR-55-P-3867 (HR-69-B-7255) seized in connection with the aforementioned case. 2. The factual background, leading to filing of the present petition, is briefly stated as under: 'Acting on a tip off the Officers of the Directorate of Revenue Intelligence, Silchar Sub-Regional Unit with assistance of Custom Officials and BSF personnel intercepted a twelve wheeler Truck displaying a fake registration No. HR-55-P-3867, instead of the actual Registration No. HR-69B-7255 (with Engine No. FYPZ118673 & Chassis No. MB1KYC1FPYN3463) near Hilara Railway Crossing, Cachar on 07.01.2019, at around 20.00 hrs. and found it carrying 424.500 kg of semi compress dry cannabis, outwardly covered/sealed with cello tape in the shape of a rectangular block, of worth Rs. 37,55,500/(Rupees Thirty Seven Lakhs Fifty Five Thousand Five Hundred) only, in a secret chamber and effected seizure vide seizure case No. 04/CL/NDPS/DRI/SIL/2018-19, dated 07.01.2019, under section 43(a) of the NDPS Act, 1985, as amended for contravention of the provision of section 8 of the Act. Also it has arrested two persons, namely- Bheem Singh Rawat- driver of the Truck and one Abhay Kumar, Khalashi for commission of the offence under section 20 read with section 29 of the Act. Thereafter, investigation was carried out and a complaint was lodged before the Chief Judicial Magistrate, Cachar, Silchar on 08.01.2019. While the trial was going on before the learned Addl. Thereafter, investigation was carried out and a complaint was lodged before the Chief Judicial Magistrate, Cachar, Silchar on 08.01.2019. While the trial was going on before the learned Addl. Sessions Judge, FTC, Cachar, Silchar, the petitioner had filed one petition before the learned Addl. Sessions Judge, seeking custody of the seized Truck, but the learned court below vide impugned order dated 18.01.2022 has dismissed the prayer after hearing both the parties. Then after conclusion of trial, the learned court below, vides impugned order dated 09.03.2022 had directed the Directorate of Revenue Intelligence (DRI) to arrange for disposal of Truck bearing registration No. HR-55-P-3867 (HR-69-B-7255), observing all the legal formalities and by putting it to public auction.' 3. Being highly aggrieved, the petitioner has approached this court by filing the present petition on the ground that the learned court below had passed the impugned orders without application of judicial mind and without considering the fact that the petitioner is the legal owner of the vehicle and there is no dispute regarding the same and that he possessed all the relevant documents and that confiscation proceeding has to be started only after conclusion of trial and that the learned court below has failed to consider the provision of section 60, 60(3) as well as section 63 of the NDPS Act, and that the petitioner, being owner of the vehicle, is not an accused, and therefore, it is contended to allow the petition. 4. The respondent has filed its objection, dated 15.05.2022, wherein it is stated that commercial quantity of cannabis was recovered from the secret chamber of the Truck, specially created with the sole intention to carry contraband in order to deceive the law enforcing agencies and a fake registration No. HR-55-P-3867 was used instead of the actual Registration No. HR-69B-7255 and that the registration detail that was obtained from the Registering Authority, Sonipat Haryana reveals that the petitioner is the registered owner of the seized Truck and follow up investigation reveals that the petitioner left the given address and hence could not be examined and it is fit case to confiscation. 5. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, the learned Standing Counsel (SC) for the DRI. 6. Mr. 5. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, the learned Standing Counsel (SC) for the DRI. 6. Mr. Ahmed, learned counsel for the petitioner, submits that the petitioner is the owner of the seized vehicle and that he had all the relevant documents in that regard and there is no dispute regarding the same. Further, Mr. Ahmed, submits that the learned court below has failed to consider the facts that the petitioner was not an accused in this case and that the learned court below also failed to appreciate the relevant provision of law and therefore, Mr. Ahmed contended to set aside the impugned orders of the learned court below and to release the seized vehicle in the custody of the petitioner. 7. Per contra, Mr. S. C. Keyal, learned SC for DRI submits that the impugned orders suffers from no infirmity and this is a fit case for confiscation of the seized vehicle under section 63 of the NDPS Act as it was used in carrying 424.500 Kg contraband substance (Ganja). Mr. Keyal therefore, contended to dismiss the petition. 8. Having heard the submissions of learned Advocates of both side I have carefully gone through the petition and the grounds mentioned therein and the documents placed on record and also carefully gone through the impugned orders. It appears that out of the two impugned orders, the order dated 09.03.2022, is a final order passed after conclusion of trial. But, the impugned order dated 18.01.2022, by which the learned court below has dismissed the prayer of interim custody of the petitioner, was passed during trial. 9. It also appears that the learned court below, while rejecting the interim custody prayer of the petitioner had observed that the petitioner has not only claiming to be the registered owner of the vehicle but he is also one of the accused persons named in this case, and therefore, it cannot be said that the vehicle was used by the petitioner without his knowledge for transporting the contraband and therefore, as per provision of section 60(3) of NDPS Act the vehicle cannot be released. 10. In the given facts and circumstances on the record, it cannot be said that the reason, so assigned by the learned court below suffers from any infirmity. 10. In the given facts and circumstances on the record, it cannot be said that the reason, so assigned by the learned court below suffers from any infirmity. A careful perusal of the provisions of Section 60(3) and Section 63 of the NDPS Act, makes it abundantly clear that the conveyance seized under the NDPS Act shall be liable to confiscation only when the owner of the conveyance, who was given an opportunity by the Court could not prove that the conveyance was used without his knowledge or connivance. In the case in hand the petitioner had failed to convince the learned court below that the vehicle was used in commission of the crime without his knowledge or connivance. This fact is apparent from the order dated 18.01.2022. 11. Further it appears that the Court will have to decide whether a vehicle seized under the NDPS Act is liable to confiscation or not only on conclusion of the trial. The learned court below had passed the impugned order dated 09.03.2022, after conclusion of trial, while the petitioner had failed to prove that the vehicle was used in commission of the crime without his knowledge or connivance. Therefore, it cannot be said that the impugned order dated 09.03.2022, suffered from any infirmity or illegality. 12. It may be noted here that Hon'ble Apex Court in the case of Union of India vs. Mohanlal and another reported in [ (2016)3 SCC 379 ], had categorically held that disposal of any seized item is to be made by the Drug Disposal Committee only. The relevant portion is extracted herein below:- '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.' 13. In view of above, legal as well as factual position, and also in view of the impugned order dated 09.03.2022, now the concerned official of DRI has to approach the Drug Disposal Committee for disposal of the seized vehicle. In view of above, legal as well as factual position, and also in view of the impugned order dated 09.03.2022, now the concerned official of DRI has to approach the Drug Disposal Committee for disposal of the seized vehicle. Therefore, I am inclined to grant liberty to the petitioner to approach the said DDC for release of the vehicle in question. It is provided that in the event of filing a petition to that effect by the petitioner, the said Committee shall consider the same within a period of 15 (fifteen) days from the date of receipt of application. 14. With above observation and direction, this Criminal Revision Petition stands dismissed. The parties have to bear their own costs.