Friday, 28 June 2019

Whether vehicle seized under NDPS Act can be released on Supratnama?

Even otherwise in the absence of any provision, which bars from release of any vehicle seized, there appears no reason to keep the vehicle in Police custody until the conclusion of the trial. There are various issues related with the upkeep of such articles specially a vehicle. This Court is of the view that the provision of Section 60 of the Act at all does not debar from releasing a vehicle during pendency of the trial. The provision of Section 60 of the Act and Section 451 of the Code act in different spheres. It is the matter of interim custody only. If vehicle is given to it's owner with certain conditions namely producing it whenever called to do so; not changing it's shape without prior permission of the Court; not to transfer it's ownership without prior permission of the Court, etc; the production of the vehicle may be ensured at any later stage of the trial or at the time of confiscation proceeding.

In the High Court of Uttarakhand at Nainital
(Before Ravindra Maithani, J.)

Abhijeet Kumar  v. State of Uttarakhand 

Criminal Misc. Application No. 368 of 2019
Decided on April 10, 2019,
Citation: 2019 SCC OnLine Utt 265

The Judgment of the Court was delivered by
Ravindra Maithani, J.:— The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) has been filed for quashing the impugned order dated 20.02.2019 passed by Special Judge, Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”), Dehradun in Case Crime No. 24 of 2019 under Section 8/20 of the Act, whereby the learned trial court dismissed the application of the petitioner for the release of his vehicle (Activa Scooty) bearing registration no. U.K.07-DH-1545.
2. On 15.01.2019, a Police party was on patrolling duty. Upon information having been received, an Activa Scooty bearing registration no. U.K.07-DH-1545 (hereinafter referred to as ‘the vehicle’) was intercepted, which was being driven by the petitioner. According to Police case, at that time, 134 gram of Charas was recovered from the petitioner. It is also the case that from the pillion rider Mr. Ranjeet, 233 gram of Charas was recovered. The vehicle was taken into custody and F.I.R. No. 04 of 2019 under Section 8/20 of the Act was registered against the petitioner on 15.01.2019 at 11:50 p.m. The petitioner moved an application before the court for release of the vehicle. By the impugned order dated 20.02.2019, application was rejected. Aggrieved, the instant petition has been filed.
3. Learned counsel for the petitioner would argue that learned court below has erred in law in holding that in view of the provision of Section 60 of the Act, the vehicle cannot be released. It is argued that in view of Section 51 of the Act, the provisions of the Code would be applicable in cases of warrants, arrests, searches and seizures and in view of Section 451 of the code, the vehicle ought to have been released in the custody of its registration owner. Therefore, the impugned order deserves to be set aside and petition allowed.
4. In support of his contention, learned counsel has relied upon the principles of law as laid down in the case of Gurbinder Singh @ Shinder v. State of Punjab, 2016 (4) RCR (Criminal) 492, in which the Court held that a vehicle used for transporting the narcotic drugs can also be released under Section 451 of the Code.
5. Section 51 of the Act provides that in cases of search and seizure, provision of Code shall be applicable so far as they are not inconsistent in the provision of the Act. It reads as hereunder:—
51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. — The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.”
6. It is true that Section 60 of the Act, interalia, provides for confiscation of any conveyance used for carrying any psychotropic substances and the procedure of such confiscation has been provided under Sections 60 and 63 of the Act. Section 60 and 63 of the Act read 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 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.
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, 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.”
7. No such provision has been brought to the notice of the Court, which may restrict the power of the Court to release any vehicle seized in connection with an offence committed under the Act. Definitely, as per the provisions of Section 51 of the Act, the provision of the Code will apply, interalia, in the cases of release of any vehicle. There are three situations which deal with for the release of any article seized by the Police. They are Section 451, 452 and 457 of the Code. The provision of Section 451 of the Code comes into play when any property is produced before the court during any inquiry or trial. In such cases, the Court may make such order, which it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial. Section 452 of the Code makes provision for disposal of property at the conclusion of trial and Section 457 makes provision in cases when the seizure of property by any Police is reported to the Magistrate under the provision of the Code and such property is not produced before the court during inquiry or trial.
8. Learned court below placed reliance on the principles of law as laid down in the case of Ganga Hire Purchase Pvt. Ltd. v. State of Punjab, (1999) 5 SCC 670. The question for determination in the case of Ganga Hire purchase (supra) was different, which is in paragraph 1 of the judgment, which reads as hereunder:—
“1. The short question that arises for consideration in this appeal is whether on account of the hire purchase agreement, the appellant can be held to be the owner within the ambit of Sub-section (3) of Section 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act’).
9. The Court, interalia, held in the case of Ganga Hire Purchase Ltd. (supra) that in the absence of any definition of “owner” in the Act, it would be reasonable to construe that the expression “owner” must be held to mean “the registered owner” of the vehicle in whose name, the vehicle stands registered under the provisions of the Motor Vehicles Act.
10. Learned court below has also placed reliance in the case of Union of India v. Dinesh Kumar Verma, (2005) 9 SCC 330. In the case of Dinesh Kumar Verma (supra), Hon'ble Court under the facts and circumstances of the case, held that the vehicle ought not to have been released. The Hon'ble Supreme Court has not laid down any such principles which may bar release of the vehicle, which had been seized in connection with the offence of the Act.
11. Section 60 of the Act does not provide for confiscation of any vehicle, immediately after it's seizure. Confiscation is a separate procedure un-connected with conviction, acquittal or discharge of the accused. It is only the satisfaction of the court, trying an offence under the Act, to decide as to whether the vehicle is liable to be confiscated or not. In the instant case, trial is yet to begin. Whether the petitioner was, in fact, carrying Charas with him? Whether the petitioner has committed any offence under the Act, is yet to be established. Whether any proceeding for confiscation would at all be initiated? It has also to be decided at a later stage of the trial. Section 451 of the Code makes provision for interim custody of any article. It reads as hereunder:—
451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation.- For the purposes of this section' property” includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.”
12. In the case of Sunderbhai Ambalal Desai v. State of Gujarat(2002) 10 SCC 283, Hon'ble Supreme Court has, interalia, held that the powers of Section 451 of the Code shall be expeditiously and judiciously exercised. It would serve various purposes, namely:
“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.”
13. Even otherwise in the absence of any provision, which bars from release of any vehicle seized, there appears no reason to keep the vehicle in Police custody until the conclusion of the trial. There are various issues related with the upkeep of such articles specially a vehicle. This Court is of the view that the provision of Section 60 of the Act at all does not debar from releasing a vehicle during pendency of the trial. The provision of Section 60 of the Act and Section 451 of the Code act in different spheres. It is the matter of interim custody only. If vehicle is given to it's owner with certain conditions namely producing it whenever called to do so; not changing it's shape without prior permission of the Court; not to transfer it's ownership without prior permission of the Court, etc; the production of the vehicle may be ensured at any later stage of the trial or at the time of confiscation proceeding. In the case of Ashok Kumar v. State of Bihar, (2001) 9 SCC 718, Hon'ble Supreme Court while releasing a vehicle, imposed various conditions, which are as hereunder:—
“1. He shall execute a bond in a sum of Rs. 1,00,000/- (one lakh) with two solvent sureties to the satisfaction of the Chief Judicial Magistrate, Muzaffarpur.
2. He must satisfy the court that he is the registered owner of the vehicle.
3. He shall not allow his son Deepak Singh to use the vehicle until disposal of the prosecution case against him. He shall file an undertaking in court to that effect.
4. He shall produce the vehicle either before the court or before such other authorities as the court may direct.
5. He will not transfer the vehicle to anybody else nor possession of the same be parted with until disposal of the case.”
14. In view of the foregoing discussion, this Court is of the view that the learned court below ought to have released the vehicle with certain conditions. Accordingly, the impugned order dated 20.02.2019 deserves to be set aside and the petition deserves to be allowed.
15. The petition under Section 482 of the Code is allowed. The impugned order dated 20.02.2019 is set aside. The matter is remitted to the Court below to pass order afresh within two weeks from the date of production of certified copy of this order.

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