Sunday, 3 November 2019

Whether Magistrate can release vehicle seized under NDPS Act?

By way of amendment, the scope of S.52A has undergone some
changes. S.52A(1) after the amendment reads as under:-
“(1) The Central Government may, having regard to the
hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of narcotic

drugs, class of psychotropic substances, class of
controlled substances or conveyances, which shall, as
soon as may be after their seizure, be disposed of by
such officer and in such manner as that Government
may, from time to time, determine after following the
procedure hereinafter specified.”
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

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. 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. Apparently, in such instances,
going by the statutory provision under the Special Act, the power
of the Magistrate to consider a claim u/s 451 of Cr.P.C. stands
denuded.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
 MR.JUSTICE A.M.SHAFFIQUE
&
 MR.JUSTICE N.ANIL KUMAR

Crl.Rev.Pet No.1440/2018

SHAJAHAN Vs  INSPECTOR OF EXCISE


Dated this the 28th day of October 2019


These matters have come before us by way of a reference
as per order of the learned Single Judge dated 9/4/2019. It was
noticed that this Court in Hassainar Aseez B. v. State of
Kerala (2017 (2) KLT 741) held that a vehicle which was seized
under the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as NDPS Act) could be released subject to
certain conditions if an application is filed u/s 451 of the Criminal
Procedure Code. It was observed that S.52A of the NDPS Act read
with the judgment of the Apex Court in Union of India v.
Mohanlal and Another [(2016) 3 SCC 379] indicates that the
Magistrate does not have jurisdiction to pass orders u/s 451
Cr.P.C. In the light of the aforesaid controversy, the matter has
been referred to this Court.
2. The issue has been well covered by the judgment of

the Apex Court in Mohanlal (supra). In that case, the Apex Court
had occasion to consider the manner in which narcotic drugs and
psychotropic substances are being seized, sampled and being
kept safe. It was noticed that several of the contraband articles
were being stored for a considerably long period which may
ultimately result in destruction and though there were provisions
for destruction of contraband articles, it remain so incurring
storage space, time, money and other difficulties. S.52A was
introduced into the statute book to get over the difficulties that
were being faced in disposal of seized narcotic drugs and
psychotropic substances. Necessarily, the procedure prescribed
u/s 52A requires to be followed when any narcotic drugs,
psychotropic substances, controlled substances or conveyances
are seized and forwarded to the officer in charge of the police
station or the officer empowered u/s 53 or the officer referred to
in sub-section (1), who shall prepare an inventory of such articles
and take such procedures as prescribed therein. The idea of
disposing the narcotic drugs and other substances including
conveyances is after getting it certified by the Magistrate and the
Magistrate's jurisdiction is confined to ensure compliance of

Section 52A(2) and (3). Sub-section (4) is a non obstante clause
which clarifies the situation and it reads as under:-
“4. Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the
inventory, the photographs of narcotic drugs or
psychotropic substances, controlled substances or
conveyances and any list of samples drawn under
sub-section (2) and certified by the Magistrate, as
primary evidence in respect of such offence”.
3. The inventory, the photographs of narcotic drugs,
psychotropic substances, controlled substances or conveyances
and any list of samples drawn under sub section (2) and certified
by the Magistrate, is treated as primary evidence in respect of
any offence. Viewed in that angle, the Magistrate may not have
any jurisdiction to deal with the substances or conveyances to
any of the articles mentioned therein as held in Hassainar
Azeez (supra). In Hassainar Azeez (supra), a learned Single
Judge of this Court who had referred the matter had observed
that the vehicles seized under the NDPS Act can be released to
the interim custody of the registered owner of the vehicle u/s 451
of the Criminal Procedure Code placing reliance on the Apex

Court judgment in Sunderbhai Ambalal Desai (2003 (2) KLT
1089). But the Apex Court judgment in Sunderbhai Ambalal
Desai (supra) was prior to introduction of S.52A, which
provision was introduced by way of substitution on 7/3/2014.
Prior to the amendment, the provision reads as under:-
“(1) The Central Government may, having regard to the
hazardous nature of any narcotic drugs or psychotropic
substances, their vulnerability to theft, substitution,
constraints of proper storage space or any other
relevant considerations, by notification published in the
Official Gazette, specify such narcotic drugs or
psychotropic substances or class of narcotic drugs or
class of psychotropic substances which shall, as soon as
may be after their seizure, be disposed of by such
officer and in such manner as that Government may,
from time to time, determine after following the
procedure hereinafter specified.”
By way of amendment, the scope of S.52A has undergone some
changes. S.52A(1) after the amendment reads as under:-
“(1) The Central Government may, having regard to the
hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of narcotic

drugs, class of psychotropic substances, class of
controlled substances or conveyances, which shall, as
soon as may be after their seizure, be disposed of by
such officer and in such manner as that Government
may, from time to time, determine after following the
procedure hereinafter specified.”
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

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. 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:

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 sub-section (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. Disposal of the seized drugs currently lying in the

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”.
6. In the light of the aforesaid law laid down by the Apex
Court, the said procedure has to be followed in every case and
there is no two way of looking at it. Apparently, in such instances,
going by the statutory provision under the Special Act, the power
of the Magistrate to consider a claim u/s 451 of Cr.P.C. stands
denuded. Reference is answered accordingly.
Registry shall place the matters before the regular court as
per roster for appropriate orders.
28-10-2019 Sd/- A.M.SHAFFIQUE, JUDGE
Sd/- N.ANIL KUMAR, JUDGE

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