Allahabad High Court
Shams Tavrej vs Union Of India on 11 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:103648 Reserved on 01.05.2023 Delivered on 11.05.2023 Court No. - 53 Case :- CRIMINAL REVISION No. - 2868 of 2021 Revisionist :- Shams Tavrej Opposite Party :- Union of India Counsel for Revisionist :- Ishwar Chandra Tyagi,Ashvani Tripathi Counsel for Opposite Party :- Ashish Pandey Hon'ble Shiv Shanker Prasad,J.
1. Heard Sri Ashvani Tripathi, learned counsel for the revisionist as well as learned A.G.A. for the State and perused the record.
2. The present criminal revision has been preferred by the revisionist Shams Tavrej against the order dated 15.09.2021 passed by Additional Sessions Judge/Special Judge (N.D.P.S. Act), Court No.16, Deoria in Criminal Misc. Case No.255 of 2021(State v. Dharmendra Tiwari and others), arising out of Case Crime No.06 of 2021, under Sections 8/20/29 N.D.P.S. Act, Police Station Deoria, District Deoria whereby the application of the revisionist for release of Bolero No.UP 52 AS 0586 has been rejected.
3. The prosecution case in short is as under:
A specific information received on 29.01.2021 at about 16.30 hours through reliable sources has been received by the Narcotics Control Bureau Lucknow (for short "NCB") on 29.01.2021 at 17.00 hours that two persons namely Dharmendra Tiwari s/o Late Subhash Tiwari and Rafeeq Ansari (driver) S/o Mustaq Ansari would reach to rental room of Govind Pandey for supplying 200-250 Kg. of ganja approximately by Bolero Car bearing Registration No.UP 52 AS 0586. The said Ganja consignment was to bring by Govind Pandey from Itanagar (Arunachal Pradesh) itself in any truck container which would be changed on the way and transported by Bolero Car to his rental house. On receiving the said information, the NCB requested the Station House Officer, Police Station Kotwali District Deoria to provide the police team for association. The NCB team with police team proceeded further to take action at 13.45 hours and requested Srii Ram Kripal and Sri Sharma Prasad and apprised them with the information available with the team and requested to remain present as independent witnesses for entire search-cum-seizure procedure. After that the NCB team along with police personnels and independent witnesses reached at Mahuaani Road near Navjeevan Jyoti School Sonughat Chauraha, P.S. Kotwali Deoria, District Deoria at 14.00 house on same day and noticed that a Bolero Car bearing Registration No.UP 52 AS 0586 was standing there and two persons were there with the packets of plastic bag. The team members introduced themselves and showed their departmental identity card and the purpose for interception. On being asked, both persons disclosed their names as Dharmendra Tiwari and Rafeeq Ansari, who were informed that their personal search under Section s 50 of NDPS Act, 1985 (as amended) would be conducted prior to sear the bolero vehicle. In pursuance of their request, Smt. Nishtha Upadhyay (C.O. City Deoria) was requested to conduct their personal search in her presence. Nishtha Upadhyay C.O. reached on the spot and personal search of both persons were conducted in her presence, but neither any Narcotic drugs/Psychotropic substance nor any incriminating documents/items were recovered from them. After this packets wrapped with plastic bag which was kept in Bolero Car were unloaded from the bolero car and counted as total 22 packets. All packing material packed in the plastic gunny bag and marked as "M". Thereafter all packets were weighed and marked as P-1 to P-22. The total weight of all packets was 225 Kg. The bolero car bearing Registration UP 52 AS 0586 used illicit trafficking of Ganja was seized under Section 60(3) of NDPS Act 1985 and entire 225 Kg Ganja has been seized under Section 22 of NDPS Act, thereafter the NCB departmental seal No.20 was used in this search-cum-seizure procedure and arrested the accused Dharmendra Tiwari and Rafeeq Ansari and prepared search-cum-seizure memo on 30.01.2021 in the presence of all officers of NCB team and Police team as well as independent witnesses. Accordingly a Case Crime No.6 of 2021 under Sections 8/20/29 of NDPS Act has been registered against them.
On the basis of their statements and seized contraband, both persons were arrested for involvement in the trafficking of Ganja and thereafter their voluntary statements under Section 67 of NDPS Act 1985 were recorded. In their voluntary statements they have accepted their involvement in the illicit trafficking of above seized drugs and they have also stated that the main trafficker of seized Ganja was Govind Pandey and no role/involvement of any manner was disclosed by the accused Dharmendra Tiwari and Rafeeq Ansari against the revisionist.
Thereafter a notice under Section 67 of NDPS Act 1985 was sent to the revisionist/owner of Bolero car through registered post for recording his statement. Thereafter the voluntary statement of owner of vehicle/revisionist under Section 67 of NDPS Act was recorded on 15.03.2021, wherein he has stated that he was doing business of shoes and slippers since last 12 years from a rental shop. He purchased a bolero car on loan in the year 2017 for personal use. He has further stated that after purchasing the car, the revisionist kept Rafeeq Ansari as driver. The said car was also used as public vehicle on rent. On 30.03.2021 the Rafeeq Ansari (driver) came to the revisionist and said that wanted to take the said vehicle for dropping some persons at Deoria, as he was working as driver of the revisionist since two years he permitted him to take the said vehicle along with him. However, his driver Rafeeq Ansari used the said bolero in illicit trafficking without knowledge of the revisionist.
During investigation, Govind Pandey was also arrested by NCB team on 02.03.2021 and his voluntary statement under Section 67 of NDPS Act was also recorded on 23.4.2021, wherein he has also not disclosed any role/involvement of revisionist in any manner in the illicit trafficking of above seized drugs.
After completing the investigation, the concerned Intelligence Officer has submitted complaint against the accused persons, namely, Dharmendra Tiwari, Rafeeq Ansari and Govind Pandey under Sections 8/20/29 NDPS Act on 26.07.2021. Thereafter, the revisionist moved an application for release of his Bolero car before learned court below on 16.02.2021 but the said application was rejected by the court below for want of prosecution. Being aggrieved, the revisionist filed an application alongwith affidavit before the Special Judge NDPS Act Deoria for release Bolero Car No.UP 52 AS 0586 in favour of revisionist. The Incharge Additional Sessions Judge/Special Judge (NDPS Act) Court No.16 without considering the material and evidence available on record, illegally rejected the release application of the revisionist vide order dated 15.09.2021. It is against this order that the present criminal revision has been filed by the revisionist.
Learned counsel for the revisionist submits that he purchased the Bolero Car No.UP 52 AS 0586 on loan of Rs.6,99,174/- from HDFC Bank for his personal use, thereafter he was paying installment of Rs.14,395/- as fixed by bank. The accused persons, namely, Dharmendra Tiwari, Rafeeq Ansari and Govind Pandey have not assigned any role or involvement of the revisionist in the illicit trafficking of above seized drugs and also no any allegation has been leveled in the complaint. The confiscation proceedings initiated by the NCB regarding the vehicle of revisionist is wrong as the said vehicle was used by the driver in the illicit trafficking of above seized drugs without knowledge of the revisionist.
The learned counsel for the revisionist has drawn the attention of the Court to the judgment of the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283 wherein it has been held that in our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.
Learned counsel for the revisionist further submits that the vehicle was given by the revisionist to the driver for his personal work and, he illegally used in trafficking of Narcotic drug/psychotropic substance without his knowledge. Therefore, impugned order passed by the Incharge Additional Session Judge/Special Judge NDPS Act Court No.16 dated 15th September, 2021 rejecting the release application of the revisionist is not tenable in the eye of law the same is illegal arbitrarily and against the eye of law.
On the cumulative strength of the aforesaid, learned counsel for the revisionist submits that the judgment and order passed by learned In-charge Additional Session Judge/Special Judge NDPS Act Court No.16, which has been passed on surmises and conjectures, is liable to be quashed by this Court.
On the other-hand, learned A.G.A. submits that the court below while passing the impugned order has recorded categorical finding of fact and there is no illegality or infirmity therein so as to warrant any interference by this Court in exercise of revisional jurisdiction. He therefore, submits that the present criminal revision lacks merit and is liable to be dismissed.
There is no dispute that the revisionist is the owner of the vehicle in question having all the documents with regard to his vehicle. The only question involved is whether the trial court had jurisdiction to release the Bolero car in question?
As per the facts of the case, the NCB team had intercepted the Bolero car and the alleged recovery of 225 kilograms of Ganja is shown from the vehicle of the revisionist. Admittedly, the vehicle in question is seized the provisions of the NDPS Act. To ascertain the role of the vehicle owner notice is alleged to have been sent by the NCB on which the revisionist responded and his statement was recorded under Section 67 NDPS Act on 15th March, 2021.
It is claimed by the revisionist that his vehicle be released as per provisions of Cr.P.C. (Sections 451 and 457) in light of judgment Sunderbhai Ambalal Desai (supra). The revisionist has also claimed benefit of judgment Dhirendra Singh Thapa (supra) passed by this Court.
On going through the general provisions in this regard, this Court finds that in the Cr.P.C. the seized vehicle can be released as per Sections 451 and 457 of Cr.P.C. but here in the case in hand the vehicle has been seized under the provisions of NDPS Act. The NDPS Act admittedly is a special act which prescribes a procedure for dealing in specified case and NDPS Act being a special statute, the provisions of special statue has to be followed by the Court. Section 63 of the NDPS Act provides a procedure for making confiscation. Section 52-A of NDPS Act provides for the seizure and disposal of seized narcotic drug psychotropic substances and the conveyances. Before the amendment of Section 52-A of the Act in 1989 the word 'Conveyance' was not included as item which could be disposed of under Section 52-A of NDPS Act. As per the learned A.G.A. the very fact that word 'Conveyance' had been incorporated, the amendment itself indicates that the Government intended to provide a special procedure to deal with the disposal of such conveyances. While taking into account the fact that most of the transportation are done in conveyance which itself is defined under Section 2 (viii) as meaning "a conveyance of any description whatsoever and includes any aircraft, vehicle There is no dispute that the revisionist is the owner of the vehicle in question having all the documents with regard to his vehicle. The only question involved is whether the trial court had jurisdiction to release the Bolero car in question?
It is held by Kerala High Court in Shajahan Vs. Inspector of Excise and others vide judgment and order dated dated 28th October, 2019 passed in Criminal Revision Petition No. 1440 of 2018 that because the special statute has been amended giving the power of disposal of narcotic drugs, psychotropic substances, controlled substances or conveyance to special officer, he will have power to act in accordance with the procedure prescribed under the Act or the rules framed thereunder.
In the case of Union of India Vs. Mohanlal and another reported in (2016) 3 SCC 379, the Apex Court held that when any narcotic drug, psychotropic and controlled substances and conveyances are seized, the same shall be forwarded to the officer in-charge nearest to the police station, who shall approach the magistrate concerned and with his permission the sampling shall be done under the supervision of the magistrate. Further, it is directed by the Apex Court that 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. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures.
The question to be decided in this revision is that in view of the amended provisions of Section 52A of the NDPS Act and the notification dated 16.01.2015, whether the learned magistrate/ special court has the authority under the provisions of Sections 451 and 457 Cr.P.C., or Drug Disposal Committee is to release the vehicle to consider the application for interim custody of the vehicle/conveyance.
The same questions were decided by the Division Bench of the Karnataka High Court At Bengaluru on 17.05.2022 in Criminal Petition No.3571/2021 Rathnamma Vs. State represented by PSI Channagiri Police Station Davanagere, State Public Prosecutor High Court of Karnataka, Bengaluru and accompanied petitions in a reference made to that Court.
As per Division Bench of Karnataka, High Court at Bengaluru provisions of Section 451 of Cr.P.C. are not inconsistent with the provisions of NDPS Act, paragraph-47 of the judgment reads as follows:-
"47. In the peculiar facts and circumstances of the present case, we are of the considered opinion, that we have no hesitation in holding that there is no provision under the NDPS Act debarring release of the vehicle for interim custody. The provisions of Section 451 of Cr.P.C., as already stated supra, is found not inconsistent with the provisions of the NDPS Act and is applicable to the vehicle seized under the NDPS Act as well. Thereby, the law laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai's case stated supra will apply to the vehicles seized under the NDPS Act as well. Any contrary view taken by the Courts of law would be against the interest of the owner of the vehicles, the public at large and the State."
In paragraph-50 of the same judgment the Division Bench held that:-
"50. Since the provisions of the Code of Criminal Procedure including Section 451/457 have been expressly made applicable by virtue of Sections 36-C and 51 of the NDPS Act to the proceedings before the Special Court and there is no express bar contained in the NDPS Act for grant of interim custody as contained in Section 52C of the Indian Forest Act, 1927, therefore, merely on the ground that the vehicle is liable to confiscation under Section 60 of the NDPS Act, it cannot be held that once the vehicle is seized for commission of offence under the NDPS Act, interim custody cannot be granted, as jurisdiction of criminal court has to be construed strictly unless expressly excluded."
Regarding Standing Order No.1/ 1989 and notification dated 16.01.2015, the Apex Court in judgment Union of India Vs. Mohanlal and another (supra) held that the earlier Notification/ Standing Order No.1 of 1989 shall be treated to be superseded to the extent the subsequent notification dated 16.01.2015 prescribes a different procedure. In order to avoid any confusion arising out of the continued presence of two notifications on the same subject it was made clear by the Division Bench of Karnataka High Court that disposal of narcotic drugs and psychotropic and controlled substances and conveyances shall be carried out in the manner prescribed, till such time the Government prescribed a different procedure for the same.
Admittedly, in the present case also, the respondents have not produced any procedure prescribed by the Central Government as directed by the Hon'ble Supreme Court in Union of India Vs. Mohanlal and another (supra).
Regarding applicability of the provisions of Cr.P.C., in this regard the Division Bench of Karnataka High Court in its judgment in paragraph-55 held that:-
"55. In view of the above, there is no expression to release the interim custody of the vehicle or exclude the provisions of the Code of Criminal Procedure in view of the Section 36-C of the NDPS Act. It is also relevant to consider, at this stage, that either in the Notification dated 16.01.2015 or the amended provisions of Section 52-A of the NDPS Act, no mechanism is provided for consideration of application for grant of interim custody of the vehicle."
In paragraph- 56 of the judgment the Division Bench held as follows:-
"56. The entire object of the Notification is to either dispose or destroy the drugs. Clause 9(1), (2), (4), (5)(a)(c)(d) of the Notification concerns with Disposal, while Clause 9(5)(b), (6), (7) concerns with Destruction. The only clause which has relevance to conveyances is Clause 9(5)(e) which depicts that seized conveyances shall be sold off by way of tender or auction as determined by the Drug Disposal Committee. The said Clause does not concern to interim custody and it only concerns with Disposal which is akin to Section 452 of the Cr.P.C. Needless to emphasize that this sale is post-trial. Thereby the Notification, dated 16.01.2015 or the provisions of Section 52A of the NDPS Act does not deal with the interim custody of the seized Articles or Conveyances. The Legislature has intentionally not used the word "Custody" under Section 52A of the NDPS Act, as can be seen under Sections 451 and 457 of the Code of Criminal Procedure. Therefore, the power or jurisdiction cannot be conferred to authority/officer including the Drug Disposal Committee, who is not vested with the same by the Statute. The power under the Notification issued cannot go beyond the statutory provisions of Section 52A of the NDPS Act."
Lastly, the Division Bench of Karnataka High Court held that the judgments in Shahjahan Vs. Inspector of Excise (supra) and Union of India Vs. Mohanlal and another (supra), there was no occasion to consider the application for release of the interim custody of the vehicle (conveyances) and in that view of the matter, the said judgments relied upon by the learned counsel for the respondents to the effect that Drug Disposal Committee has power and not the Magistrate or the Special Court under the NDPS Act have no application to the facts and circumstances of the present application.
A perusal of Section 36- C and 51 of the NDPS Act indicates that the provisions of Cr.PC. so far as, they are not in contradictions with the special Act NDPS Act, shall be applicable to the NDPS Act and as in the NDPS Act no procedure for interim custody of the vehicle is prescribed Sections 451 and 457 of Cr.P.C. specifically deal with the custody and disposal of property pending trial and the procedure to be followed by the police upon seizure of property. Consequently the judgment Sunderbhai Ambalal Desai (supra) shall be applicable to the facts of the present case and as in the judgment Union of India Vs. Mohanlal and another (supra), only the disposal of seized narcotic drug, psychotropic and controlled substances and conveyances were discussed and there was no occasion to consider the matter of release or the interim custody of the vehicle (conveyance).
On the deeper scrutiny of the provisions of NDPS Act, Code of Criminal Procedure as well as the judgments noticed above, this Court is of the considered opinion that law laid down by the Apex Court in Sunderbhai Ambalal Desai (supra) will apply to the vehicle seized under the NDPS Act as well. Thus, the Magistrate/ Special Judge, NDPS Act shall have power to consider the application for the interim custody of the conveyance/ vehicle under the provision of Section 451 and 457 of Cr.P.C.
The finding of the trial court that the Drug Disposal Committee would dispose of the vehicles seized under NDPS Act is against the mandate of the Apex Court in Union of India Vs. Mohanlal and another (supra).
The revision is hereby allowed. The order dated 15.09.2021 passed by Additional Sessions Judge/Special Judge (N.D.P.S. Act), Court No.16, Deoria in Criminal Misc. Case No.255 of 2021(State v. Dharmendra Tiwari and others), arising out of Case Crime No.06 of 2021, under Sections 8/20/29 N.D.P.S. Act, Police Station Deoria, District Deoria is hereby set aside. The revisionist is directed to appear before the court concerned within a period of 15 days from today to get his application decided on the basis of law discussed above.
Order Date :- 11.05.2023 Sushil/-