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Rajasthan High Court · body

2023 DIGILAW 520 (RAJ)

Suresh S/o Shri Thakra Ram Bishnoi v. State

2023-02-15

ASHOK KUMAR JAIN

body2023
ORDER : 1. This Misc. Petition under Section 482 Cr.P.C. has been filed by the petitioner-accused being registered owner of the vehicle KWID Renault No. RJ46-CA-1198 (Model 2017), aggrieved against the order dated 09.02.2021 passed by the learned Special Judge, NDPS Cases No. 1, Chittorgarh, whereby the learned Special Judge rejected the application under Section 451 of the Cr.P.C. filed by the petitioner for Supurdginama/handing over the custody of vehicle in question during trial to him. 2. Learned counsel for the petitioner while relying upon the order passed by the Coordinate Bench of this Court in the case of Shyam Sunder vs. State of Rajasthan passed in S.B. Criminal Revision Petition No. 86/2023 decided on 25.01.2023 submits that police has falsely implicated the petitioner-accused as illegal recovery was effected from the vehicle itself. He further submits that the vehicle in question is lying unattended and likely to devalue, if the same remains lying open in the police station during trial. He further submits that the learned trial Court has dismissed the application for releasing the vehicle on supurdginama on the ground that there is a provision of confiscation of the vehicle under Section 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short) but the same cannot be resorted at the preliminary stage. He further submits that the present petitioner is a registered owner of the vehicle in question and there is no doubt regarding ownership of the vehicle in question and the certified copies has already been placed on record by him before the learned trial Court. Lastly, learned counsel submits that the petitioner is ready and willing to agree on any terms and conditions imposed by this Court. 3. Aforesaid contentions are opposed by the learned Public Prosecutor on the ground that in the present case, the accused-petitioner is a principal accused, who is facing trial for illegal transportation of the narcotic goods. He further submits that prima facie there is an evidence on record regarding involvement of the petitioner-accused in commission of crime thus, considering the proviso to Section 60 (3) of the NDPS Act, custody of the vehicle in question cannot be handed over to petitioner. 4. Heard learned counsel for the parties and perused the material available on record. 5. He further submits that prima facie there is an evidence on record regarding involvement of the petitioner-accused in commission of crime thus, considering the proviso to Section 60 (3) of the NDPS Act, custody of the vehicle in question cannot be handed over to petitioner. 4. Heard learned counsel for the parties and perused the material available on record. 5. On perusal of the record, it reveals that the vehicle in question was seized by the officer who prepared Panhnama at the time of recovery and the learned trial Court while relying on the provision of Section 60 of the NDPS Act rejected the application under Section 451 Cr.P.C. filed by the petitioner for release the vehicle in question on Supurdginama. Section 60 of the NDPS Act is reproduced as under: 60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation: (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 2[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 [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 [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 [or controlled substance], 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. 6. 6. The Coordinate Bench of this Court in the case of Shyam Sunder (Supra) while relying upon the judgment rendered in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, (2002) 10 SCC 283, ordered to release the vehicle, though the principle of law in Sunderbhai Ambalal Desai (Supra) pertains to Sections 451 and 457 of the Cr.P.C. but the same are made applicable under the NDPS Act as well. 7. Herein, I would like to refer the judgment of Union of India vs. Mohan Lal, (2016) 1 SCC (Cri) 864 wherein directions for disposal of case property i.e. Narcotic Drugs and Psychotropic Substances and conveyance, were issued by the Hon’ble Supreme Court and in pursuant to that guidelines for disposal of the property seized during investigation was issued by the Central Government. Section 60 of the NDPS Act further indicates that whenever any offence punishable under the Act is committed and in respect of which any means or connivance is used then the same is liable for confiscation but there is one exception which is provided under sub-section (3) of Section 60 of the NDPS Act i.e. unless the owner proves that the seized vehicle was used without any knowledge or connivance. Herein, the fact itself indicates that when the vehicle in question was intercepted by the police, the present petitioner himself was driving the vehicle from which poppy straw was recovered by the police. 8. Normally the confiscation proceedings will take place only after conclusion of trial and in the case at hand, learned trial Court has rejected the application for release of vehicle in question on temporary Supurdginama on the ground of provision of confiscation under Section 60 of the NDPS Act. The trial of the case will take its own time and as the same is not likely to be concluded in a time bound manner, therefore, in such situation, the learned trial Court is duty bound to consider the interim custody or disposal of the vehicle in question on conditions as imposed by it. 9. The reasons as stated in the impugned order dated 09.02.2021, specifically indicates that the learned trial Court has not applied its mind with regard to entitlement to release the vehicle is concerned. 9. The reasons as stated in the impugned order dated 09.02.2021, specifically indicates that the learned trial Court has not applied its mind with regard to entitlement to release the vehicle is concerned. The provision of confiscation as provided under Section 60 of the NDPS Act further provides for the defence of the registered owner itself but the same was not examined by the trial Court. 10. In view of the aforesaid provisions, this Court is of the opinion that the order passed by the learned trial Court is unjust, improper and passed without application of mind, therefore, the same is liable to be interfered by this Court. 11. Accordingly, the Misc. Petition is allowed. The impugned order dated 09.02.2021 passed in Misc. Criminal Application No. 85/2021 passed by the learned earned Special Judge, NDPS Cases No. 1, Chittorgarh is quashed and set aside. The matter is remanded back to the trial Court for fresh consideration of the application for release of vehicle in question within a period of four weeks from the date of receipt of this order afresh after providing an opportunity of hearing to the parties concerned. The parties shall appear before the trial Court, either personally or through the Counsel before the concerned court on 01.03.2023. The court shall thereafter, proceed to hear the application for release of vehicle in question afresh without being influenced by any previous order and decide the same as per law.