Orissa High Court
M/S. Pinnacle Clothing Co vs State Of Odisha ... Opp. Party on 4 January, 2021
Author: S.Pujahari
Bench: S.Pujahari
CORAM : HON'BLE SHRI JUSTICE S.PUJAHARI
CRLREV No.481 of 2020
M/s. Pinnacle Clothing Co. ... Petitioner
- Versus -
State of Odisha ... Opp. Party
ORDER
03. 04.01.2021 In the wake of the pandemic Covid-19, the case is taken up through V.C.
2. The petitioner in this criminal revision has challenged the sustainability of the order dated 04.12.2020 passed by the learned Special Judge, Koraput-Jeypore in Misc. Case No.143 of 2020, arising out of T.R. No.12 of 2020 rejecting the prayer made by him under Section 457 of Cr.P.C. for release of the fabric bundles/rolls seized in connection with Boipariguda P.S. Case No.20 of 2020 registered for alleged commission of offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act").
3. Facts relevant for disposal of this revision petition are as follows:-
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The S.I. of Police, namely, Ramesh Kumar Debata of Boipariguda Police Station along with the staff of the said Police Station while returning to the Police Station after performing patrolling duty and checking of vehicles in the night intervening 8/9.02.2020 near Boipariguda Chhak, intercepted a close body container truck bearing registration No.HR- 38-Z-1135 coming from Malkangiri side. On such interception, out of the four occupants in the said truck, two persons alighted from the said vehicle and took to their heel, but the other two persons, one of whom was in the driver seat, on being asked the cause of their fleeing, disclosed that as the vehicle was containing contraband 'Ganja', seeing the police, they fled away. The police personnel commanded to nab those two, however nabbed them soon after and brought them to the Police Station. Then on verification of the container, it was found that the container was carrying Fabric roll / bundles and smell of 'Ganja' was emitting out. On search, it was also found 47 nos. of jerry bags containing 'Ganja' were 3 there, besides 500 nos. of rolls of fabric. Those jerry bags were then unloaded and on weighment of the 'Ganja' in all 47 jerry bags weighed 1127 Kgs. Then the police conducting other formalities required under law stated to have seized the 'Ganja', so also the truck along with fabric roll and other documents in respect of the transportation of such fabric roll. Since against the persons, who are apprehended at the spot, disclosed commission of offence punishable under Section 20(b)(ii)(C) of the NDPS Act, the S.I. of Police of Boipariguda Police Station conducting such search and seizure lodged the report, pursuant to which, the case was registered and during the course of investigation, the seizure of the articles was reported to the learned Special Judge in the aforesaid case.
4. The case of the petitioner is that he is the owner of the seized fabric roll/bundles which he had imported from the manufacturer-Shaoxing Easyway Textile Co. Ltd. at Chaina through Chennai Port and on landing of the articles, i.e., 869 fabric roll/bundles at Chennai Port, after the custom clearance of the 4 entire stock, the same were handed over by their clearing agent, namely, R.K. Logistics for the delivery of the same in the destination of the petitioner at Noida to the Transporter - Tamil Nadu Logistics. The said Transporter hired two container trucks from one Mr. Sohan Singh for transportation of the aforesaid goods and out of the same, the container truck carrying 233 fabric roll/bundles had already reached the destination, but the offending truck bearing registration No.HR-38-Z-1135 carrying 636 fabric rolls/bundles did not reach at the destination in time. On being enquired, it was disclosed before the petitioner by their transporter that it was seized in connection with the aforesaid case. Thereafter, the transporter filed a petition under Section 457 of Cr.P.C. for release of the aforesaid articles seized, but the same was rejected by the learned Special Judge, Koraput-jeypore on irrelevant ground that the investigation was in progress and against the said order, the petitioner had filed a revision petition vide CRLREV No.343 of 2020 before this Court and when 5 this Court declined to entertain the same as the present petitioner had not filed a petition under Section 457 of Cr.P.C. before the Court below, the petitioner sought for withdrawal of the same with liberty to approach the Court below by filing a petition under Section 457 of Cr.P.C. which was allowed. In the meanwhile investigation has already been completed and the petitioner is not arraigned as an accused. Thereafter, the petitioner moved the Court below by filing a petition under Section 457 of Cr.P.C. for release of the articles seized. The learned Special Judge refused to release the same in favour of the petitioner for the reasons that original invoice showing his entitlement and also his power of attorney had not filed the original authorizing him to make such prayer and the article being used to conceal the contraband Narcotic drugs, i.e., 'Ganja' inside, was liable for confiscation. Even if the case of the prosecution is accepted, it reveals that both the articles, such as, 'Ganja' and fabric roll/bundles were separately, inside the container at the time of seizure. However, without 6 appreciating the aforesaid fact and also in a misconception of law with regard to post-trial confiscation, the prayer of the petitioner was rejected assigning the reasons, as stated earlier. Hence, he has filed this revision petition challenging the same.
5. It is the contention of the learned senior counsel appearing for the petitioner that since the articles seized were subject to natural decay and destruction and he is the rightful owner of the property, even Section 61 of the NDPS Act says that the articles seized if used to conceal the contraband narcotic drugs is liable for confiscation, but the same being a post-trial exercise and can only be done only in the event when the evidence are brought during the trial disclosing the same, the learned Special Judge should not have refused to release the articles in favour of the petitioner in exercise of the jurisdiction under Section 457 of Cr.P.C., more so when evidence collected does not disclose that the articles seized were used to conceal the contraband 'Ganja' as both the articles were remained distinct inside the 7 container and it was never the case of the prosecution that inside the fabric roll/bundles 'Ganja' packets were there. Therefore, there being no material to disclose that the fabric roll were used to conceal the 'Ganja', as such, the same is not liable for confiscation. In such premises, more particularly when the petitioner-company is not an accused, the order of the learned Special Judge suffers from gross illegality and, as such, liable to be set-aside. The other ground that is assigned, are not tenable in the absence of any rival claim with regard to ownership and also the Firm having authorized to file the case to the attorney holder. However, the attorney holder has also filed special power of attorney in this case, that is executed by the partners of the company. In such premises, the revision petition be allowed by setting aside the impugned order and the trial Court be directed to release the aforesaid fabric roll/bundles in favour of the petitioner-owner, submits the learned counsel for the petitioner.
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6. Counter affidavit in this case though stated to have been filed by the State counsel, but the same has not been brought to record. However, it is fairly submitted by the learned counsel for the State that the fabric roll/bundles and the 'Ganja' seized inside the offending vehicle were kept independently, but he defended the impugned order on the ground that there is provision of confiscation as the same was used as cover to transport the contraband 'Ganja', and the person who sought for release of the fabric roll/bundles did not show his authority for seeking release on behalf of the owner and document was not filed indicating entitlement of the petitioner for the same as owner.
7. Before addressing the contention of the parties, it would be apposite to mention here that release of the property seized in connection with N.D.P.S. Act in appropriate cases, in exercise of power under Sections 451 and 457 of Cr.P.C is not ousted under the N.D.P.S Act. But, it appears that the trial Court refused to release the seized fabric rolls in 9 favour of the transporter assigning the reason that the petitioner could not show his entitlement by filing the original invoice and also the authority of special power of attorney to represent him, so also taking note of the provision of Section 61 of the N.D.P.S Act that the property is liable for confiscation, sustainability of which has been questioned by the learned senior counsel appearing for the petitioner, but defended by the State counsel with the submission, as stated earlier.
8. To appreciate the contention of the parties, it would be apposite to have a look to the provision of dealing with disposal of the article seized in connection with cases under the NDPS Act, Section 52 of the N.D.P.S Act which mandates the Authority or Officer to take necessary steps with regard to the persons taken to custody and the articles seized, reads thus:-
"52. Disposal of persons arrested and articles seized - (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without 10 unnecessary delay to the Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to -
(a) the officer-in-charge of the nearest
police station, or
(b) the officer empowered under
section 53.
(4) The authority or officer to whom
any person or article is forwarded under sub-
section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.
9. Sections 60, 61, 62 and 63 of the N.D.P.S Act deal with post-trial disposal of the articles mentioned therein. Section 63 deals with the manner of making confiscation. However, Section 63(2) deals with confiscation of the articles which are liable for confiscation under Sections 60, 61 and 62 of the N.D.P.S Act when the person who has committed the offence, is not known. The said Sections are reproduced below :-
"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.11
(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 the 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 substances], 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.
61. Confiscation of goods used for concealing illicit drugs or substances - Any goods used for concealing any [narcotic drug, psychotropic substance or controlled substance] which is liable to confiscation under this Act shall also be liable to confiscation.
Explanation.- In this section "goods" does not include conveyance as a means of transport.
62. Confiscation of sale proceeds of illicit drugs or substances.- Where any [narcotic drug, psychotropic substance or controlled substance] is sold by a person having knowledge or reason to believe that the drug or substance is liable to confiscation under this 12 Act, the sale proceeds thereof shall also be liable to confiscation.
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 articles 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."
10. A bare perusal of the aforesaid provisions would go to show that it is incumbent on the part of the Authority or officer who is in custody of the persons or articles seized in connection with a case under the 13 N.D.P.S Act to take steps for disposal of the person and articles in the manner known to law. The same necessarily implies that the officer concerned has to produce before the Court the articles seized and also the person concerned who has been taken to custody in connection with a case under the N.D.P.S Act. Sections 60, 61 and 62 of the N.D.P.S Act provide for the post-trial decision required to be taken by the Court with regard to disposal of the illicit narcotic drugs, psychotropic substances, controlled substances, plants, articles and conveyances, so also any lawful drugs and the narcotic drugs or substances [or controlled substances] which though are imported or exported lawfully, but along with the same, there are illicit narcotic drugs or psychotropic substances or controlled substances, and also the materials, apparatus, utensils which are used, the receptacles or packages covering used for such contraband drugs and the contents in the same, and animal or conveyance used in committing such offence.
Section 61 of the N.D.P.S Act speaks of confiscation of goods besides the conveyance, which is used for 14 concealing any narcotic drug or psychotropic substance or controlled substance which are liable for confiscation under Section 60 of the N.D.P.S Act. Section 62 of the N.D.P.S Act relates to confiscation of the sale proceeds of such illicit drugs or substances. Section 63 of the N.D.P.S Act prescribes the procedure for confiscation with regard to the articles or things seized under the N.D.P.S Act, which are liable for confiscation under Sections 60, 61 and 62 of the N.D.P.S Act irrespective of conviction/acquittal or discharge of the accused tried for committing such offence in the trial. However, Section 63(2) of the N.D.P.S Act deals with disposal of the articles or things seized which are liable for confiscation under Sections 60, 61 and 62 of the N.D.P.S Act, but the person who committed the offence in connection therewith is not known. Exercise of such power under Section 63(2) of the NDPS Act, however, is subject to limitation that no order for confiscation/disposal can be made until expiry of thirty days of such seizure or without hearing the person, who comes forward claiming such article seized or without considering the evidence produced by him. The second 15 proviso to the said sub-ection, however, speaks that if any article or thing seized in such case other than the narcotic drug, psychotropic substance [controlled substance], opium poppy, coca plant or cannabis plant, is liable to speedy and natural decay or the Court is of the opinion that it's immediate sale would be for the benefit of its owner, the Court may dispose of the same by sale without complying with the requirement as mentioned for confiscation as provided in the first proviso to the same. But, the sale proceeds thereof shall be subject to confiscation complying with procedure for confiscation of the articles sold.
11. Under the NDPS Act, when it was enacted, there was no provision for pre-trial disposal of the articles seized in the cases where the accused persons are known. But, later on, considering the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant considerations, in respect of any narcotic drugs, psychotropic substances, controlled substances, or conveyances, Section 52A of the NDPS Act empowers the Central Government to notify for 16 disposal of narcotic drugs and psychotropic substance or controlled substance or conveyance, or class thereof soon after seizure by such officer in such manner as that Government may provide from time to time. However, procedure for such disposal has been prescribed in the said section. The Central Government has also in the meanwhile come with a notification in this regard. The same necessarily oust the jurisdiction of the Court to exercise the power under Sections 451 and 457 of Cr.P.C. in respect of those articles mentioned in the notification seized in connection with NDPS cases. But, the same is not relevant for the purpose of this case as the articles / goods sought to be released in this case are not the narcotic drugs or psychotropic substance or the conveyance, to which the said provision applies.
12. Section 452 of Cr.P.C. also deals with the post-trial disposal of the property by way of confiscation, destruction or release of the same to appropriate person of property seized in connection with a case. In spite of the same, the Court are not denuded of power to exercise the jurisdiction under Sections 451 and 457 of Cr.P.C. in 17 appropriate cases to direct disposal or release of the articles seized as the mandate of law is not to keep such property unnecessarily detained. The mandate of the Apex Court in the case of Sunderbhai Ambala Desai vrs. State of Gujarat, reported in (2003) 24 OCR (SC) 444 is to release such property or dispose of the same. In such premises, when the NDPS Act does not specifically or impliedly prohibit, applicability of Sections 451 and 457 of Cr.P.C. to any article/goods seized, the said provisions can be invoked to release and disposal of the goods or articles seized, by the Court concerned in appropriate cases during investigation or pre-trial stage, if facts and circumstance, so warrants, notwithstanding the provision for post-trial confiscation
13. Keeping in mind the aforesaid, when the case in hand is addressed, it appears to this Court that post- trial confiscation has weighed the mind of the Court as prima-facie materials were there indicating that inside the fabric roll/bundles, 'Ganja' were kept to prevent it detection of the 'Ganja' being transported with the fabric rolls. The learned Special Judge, therefore, held as the 18 goods were used to conceal the narcotic drugs and, as such, liable for confiscation, hence, refused to release the same. However, such a finding of the trial Court has been seriously disputed by the learned senior counsel appearing for the petitioner. According to him, though prima-facie materials are there to indicate both contraband 'Ganja' and fabric rolls seized were there in the container, but fabric roll being never used as a wrapper, therefore, it is submitted, Section 61 of the NDPS Act, which weighed the mind of the trial Court, has no application to the case at hand. Furthermore, it is also submitted that when the petitioner-firm, the owner, is not added as an accused in this case and he has no nexus with the offence alleged, his article seized is not liable for confiscation. On close scrutiny of the order of the learned Special Judge, it cannot be said that the learned Special Judge under the impression that as the petitioner was an accused in the case and also using the article seized as wrapper, refused to release the same. What weighed the mind of the learned Special Judge is that since the fabric roll were used as cover up to avoid the detection of 'Ganja', 19 the learned Special Judge has held it to be coming under Section 61 of the NDPS Act and, as such, the same is liable for confiscation. The article seized is used for concealment of the 'Ganja' or not can be decided during confiscation proceeding after going through the evidence adduced in the trial. But, it appears that in the container truck 'Ganja transportation' was camouflaged by the fabric roll therein, as such, finding of the learned Special Judge prima-facie cannot be said to be without any substance. In such cases, prima-facie applicability of Section 61 of the NDPS Act is not ruled out, but the same being a post-trial exercise and applicability of Sections 451 and 457 of Cr.P.C. is not ousted by such prescription of post-trial confiscation of the fabric roll as well as the fabric roll being subject to natural decay and destruction, the learned Special Judge should have considered the same while considering the prayer of the petitioner. Furthermore, the learned Special Judge should have also taken note of the fact that keeping the aforesaid articles in the Police Station till the conclusion of the trial to be dealt with Section 61 of the NDPS Act, is beneficial to none. In 20 such premises, when there was no rival claim and the materials on record, those were collected by the police, indicate the petitioner to be the owner, the learned Special Judge should have released the same in his favour allowing him to use the articles keeping the value of the same as security, to be dealt with Section 61 of the NDPS Act after conclusion of the trial. If at all, the learned Special Judge was not satisfied from the materials produced about the ownership of the petitioner, it could have asked for more information or documents in support of the same as well as the person representing the same to furnish the proof thereof. But, without making such an effort, the learned Special Judge rejected the prayer. At the cost of repetition, it is stated that keeping the article seized in the Police Station is beneficial to none. There is also no rival claim. In such premises, the articles seized are required to be disposed of at the pre-trial stage in exercise of power under Section 457 of Cr.P.C.
14. Hence, this Court set-aside the impugned order and direct the learned Special Judge, Koraput- Jeypore to release the fabric roll in favour of the petitioner 21 after verifying the documents with regard to the ownership of the seized articles, on furnishing Bank Guarantee commensurate to the value of the fabric roll/bundles seized. It is stated that the value of the fabric roll/bundles is Rs.39 lacs. However, this Court is not inclined to make any comment on the value thereof and, as such, it is left open to the learned Special Judge to go through the materials collected or produced or obtained such information as it may deem fit and proper with regard to the value of the fabric roll seized and asked the petitioner to furnish Bank Guarantee of that amount. The period of Bank Guarantee is required to be fixed by the learned Special Judge. The Bank concerned be intimated by the learned Special Judge to invoke the Bank Guarantee before its expiry if not renewed and transmit the sale proceeds thereof to the Court to be dealt with after disposal of the case, if the same is not renewed by the petitioner well ahead of expiry of the same. However, on conclusion of the trial, if it is found that the articles are liable for confiscation, the Bank concerned be asked to invoke the Bank Guarantee and remit back the amount to 22 the Court to forfeit the same to the State. But, if it is found that the fabric rolls released are not liable for confiscation, the Bank concerned be directed to discharge the Bank Guarantee furnished.
15. With the aforesaid order, this revision petition stands disposed of being allowed.
The parties may utilize a copy of this order as per the High Court's Notice No.4587 dated 25.03.2020.
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S.Pujahari, J.
MRS