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2022 DIGILAW 912 (ALL)

Shivam Singh v. State of Uttar Pradesh

2022-05-31

GAUTAM CHOWDHARY

body2022
JUDGMENT : 1. Heard Sri Jata Shankar Pandey, learned counsel for the applicant, Sri Ashish Pandey appearing for NCB as well as Sri. Rajeshwar Singh, Rakesh Chand Srivastava, Sri Amit Sinha, learned A.G.A. assisted by Rajnish Pandey and Sri Madnesh Prasad Singh, learned State Law Officer for the State and perused the record. 2. The present application has been filed for quashing the order dated 4.9.2021 passed by Additional Sessions Judge, Court No. 10, Allahabad in N.C.R. No. UPAD-01007233/2021 (State/NCB Vs. Vinod Yadav), under sections 8/20 N.D.P.S. Act, arsing out of Case Crime no. 188 of 2021, Police Station Shankargarh, District Prayagraj. 3. Learned counsel for the applicant contends that the vehicle bearing registration No. UP62 AT8908 belongs to the applicant and no useful purpose would be served in keeping the vehicle at police station which would result in the vehicle becoming junk. Learned counsel for the applicant has relied upon a decision of Hon'ble Apex Court in the matter of Sunder Bhai Ambalal Desai Vs. State of Gujarat 2003 (46) A.C.C. 223 wherein it been held:- "that any vehicle can not be permitted to be kept for a long time in the premise of police station and allowed to be destroyed. The fact and circumstance of this case is different from the fact and circumstance of Sunder Bhai Ambalal Desi's case (Supra), hence the impugned order passed by learned Judge can not be said illegal or improper. However, it is made clear that if the application for confiscation has not been filed or is not pending or the vehicle has still not been confiscated the revisionist may file fresh application for release of his vehicle in order to avoid the damage before he court below and the learned Judge may consider the application according to provision of law". 4. In support of his contention, learned counsel for N.C.B. as well as learned A.G.A. for the State has also placed the reliance of Revision Vs. Shajahan decided on 28.10.2019 in Crl. Rev. Pet No. 1449 of 2018 decided by the Kerala High Court, whereof the paragraph No. 4 and 5 of the judgement is quoted below: 4. 4. In support of his contention, learned counsel for N.C.B. as well as learned A.G.A. for the State has also placed the reliance of Revision Vs. Shajahan decided on 28.10.2019 in Crl. Rev. Pet No. 1449 of 2018 decided by the Kerala High Court, whereof the paragraph No. 4 and 5 of the judgement is quoted below: 4. The main contention urged by the learned counsel for petitioners is that the conveyances involved in transportation of narcotic drugs or psychotropic substances may not belong to the actual transporter, in which event, confiscation and destruction by the competent officer without any enquiry in that regard may affect the rights of the owner of such vehicle. In fact, S.63 of the Act had provided for a procedure in making confiscations. S.63 gives the power to the Court to decide whether any article or thing seized under the Act is liable to be confiscated in terms of Sections 60, 61 or 62 of the Act. Before the amendment to Section 52A, conveyance was not included as an item which should be seized and disposed. The very fact that conveyance had been incorporated in the amendment itself indicates that the Government intended to provide a special procedure to deal with such conveyance, while taking into account the fact that most of the transportation are done in conveyances which itself is defined Crl.R.P.No.1440/2018 & conn. cases u/s 2(viii) as meaning "a conveyance of any description whatsoever including any aircraft, vehicle or vessel." Therefore, if any vehicle is involved in transportation of narcotic drug, psychotropic substance or controlled substance, such vehicles also could be seized and disposed of in terms of S.52A(1) of the Act. S.63 was a special procedure available at the inception of the Act and when the statute had been amended giving the power of disposal of narcotic drugs, psychotropic substances, controlled substances or conveyances to a special officer, he will have to act in accordance with the procedure prescribed under the Act or the Rules framed thereunder. 5. When a Special Act prescribes the procedure for dealing in specified goods and the NDPS Act being a special statute and latter in time, the provisions of the special statute has to be followed by the Magistrate. 5. When a Special Act prescribes the procedure for dealing in specified goods and the NDPS Act being a special statute and latter in time, the provisions of the special statute has to be followed by the Magistrate. In other words, the Magistrate may not have jurisdiction to entertain a petition u/s 451 of Cr.P.C. in the light of the special provision made u/s 52A of the NDPS Act. In fact, in Mohanlal (supra), the Apex Court had issued certain directions which are extracted hereunder:- "31. To sum up we direct as under: Crl.R.P.No.1440/2018 & conn. cases 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under subsection (3) of Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order. 31.2. The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized narcotic drugs and psychotropic and controlled substances and conveyances duly equipped with vaults and double-locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No. 1 of 1989 to ensure proper security against theft, pilferage or replacement of the seized drugs. 31.3. The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts. 31.4. 31.3. The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts. 31.4. Disposal of the seized drugs currently lying in the Crl.R.P.No.1440/2018 & conn.cases Police Malkhanas and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading "disposal of drugs". 5. After hearing the learned counsel for the applicant, learned counsel for N.C.B as well as A.G.As., and after perusing the order impugned as well as averments made in the present application, this Court is of the opinion, that the arguments as raised by learned counsel for the applicant has substance that the vehicle shall be released in order to avoid damage but the applicant has been wrongly moved before the learned Magistrate. Such vehicle also could be seized and disposed of in terms of Section 52A (1) of the Act. However, the proper remedy available to the applicant to move application under section 63 of N.D.P.S. Act before the trial court, which is quoted below:- "63. Procedure in making confiscations.— (1) In the trial of offences 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: 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: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1[controlled 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 sale would be for the benefit of its owner, it 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 sale. 6. Accordingly, there is no infirmity in the impugned order. However, the contention advanced by learned counsel for the applicant is acceptable up to the extent that to avoid damage of the vehicle, the release of vehicle is necessary. 7. Considering the aforesaid judgments and discussions section 52A(1) and Section 63 of the N.D.P.S. Act are attracted. Therefore, the application is disposed off with liberty to the applicant to move an appropriate application under section 52A(1) and section 63 of the N.D.P.S. Act before the trial court, the same shall be entertained by the court below in accordance with law, as expeditiously as possible.