Kerala High Court
Shilpa.I.G vs State Of Kerala on 14 January, 2021
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
Crl.MC.No.4914 OF 2019(D)
AGAINST THE ORDER IN CMP NO.5398 OF 2018 IN CC No.841/2018 DATED
29-12-2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA.
PETITIONER:
SHILPA.I.G.
AGED 40 YEARS,
D/O. I K GOPI,
ILLATHUPARAMBIL HOUSE, KEEZHUNNA, THOTTADA, KANNUR.
BY ADVS.
SRI.ASHIS KORATTYSWAROOPAM,
SHRI.AKHILESH A.K.
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE SHO KUTHUPARAMBA, THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
SR PP SRI D.CHANDRASENAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
14.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.4914/2019(D) 2
C.R
ORDER
Dated this the 14th day of January, 2021.
This Crl.M.C is filed challenging an order passed by Judicial First Class Magistrate Court, Kuthuparamba ( for short, 'the court below') in C.M.P No.5398/2018 in C.C No.841/2018. By the order, the court below has dismissed the application filed by the petitioner under Section 452 Cr.P.C for getting the custody of the vehicle released in her favour.
2. The averments of the petitioner in C.M.P No.5398/2018 filed for the purpose were that she was the owner of the vehicle bearing Registration No. KL-13-AJ-3354, which was allegedly involved in an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act), that she has no involvement in the offence with reference to which the vehicle was seized, that the accused in the case has pleaded guilty and that he was convicted and sentenced for the offence on 31.08.2018. It is averred by the petitioner that a notice under Sub section (3) of Section 60 of the NDPS Act had been Crl.MC.No.4914/2019(D) 3 given to her as a pre-step for disposal of the property in C.C No.841/2018. Responding to the notice, she has filed an affidavit stating that the vehicle was not used by her for transportation of Ganja but was given to the accused, a friend of her husband only for his personal use. The court after verification of the case records found that 48 grams of Ganja was seized from the possession of the accused while he was traveling in the aforesaid motorcycle. In the FI Statement lodged, it was alleged that the accused was sitting on the motorcycle and on noticing the approach of the Police to him, he had attempted to escape by starting the motorcycle. In the search held in his body, six packets of Ganja were recovered. The vehicle was also examined and, one packet containing Ganja kept concealed in its battery was also seized. Thus altogether 48 grams of Ganja was seized from the possession of the accused. Therefore, alleging that the vehicle was used for transportation of Ganja, a crime was registered against him and after holding investigation, he was chargesheeted for illegal possession of Ganja.
3. On entering appearance itself the accused pleaded guilty and was convicted and sentenced. In that context, the owner of the vehicle has approached this Court by filing C.M.P Crl.MC.No.4914/2019(D) 4 No.5398/2018 under Section 452 Cr.P.C for getting the vehicle released to him.
4. Section 60 of the NDPS Act deals with the liability of illicit drugs, substances, plants, articles and conveyances to confiscation. Section 61 deals with confiscation of goods used for concealing illicit drugs or substances. Section 62 deals with confiscation of sale proceeds of illicit drugs or substances and Section 63 deals with procedure while making confiscations.
5. Section 63 of the NDPS Act being relevant in the context is extracted hereunder;
"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 for 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, or controlled substance, the opium poppy, cocoa plant or cannabis plant is liable to speedy and natural decay, or if the Crl.MC.No.4914/2019(D) 5 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. '' (Emphasis supplied)
6. The 1st proviso to Section 63 of the NDPS Act says that an order of confiscation of an article or thing shall not be made until expiration of one month from the date of seizure, or without hearing any person who may claim any right thereto and evidence, if any, which he may produce in respect of his claim.
7. In the case on hand, the vehicle having been found involved in transportation of Ganja, undoubtedly is liable to confiscation. But proviso to Section 63 says that an order to confiscate the vehicle can only be issued after hearing a person who claims to have any right over the vehicle and appreciating any materials produced by her to establish her claim.
8. Admittedly, a notice under sub-section (3) of Section 60 of NDPS Act was served on the petitioner and she has filed an affidavit stating that the vehicle was not used for transportation of Ganja and had given the vehicle to the accused for his personal use and the accused is a friend of her husband.
9. Sub-Section (3) of Section 60 of NDPS Act provides for the kind of the enquiry required while ordering confiscation of a Crl.MC.No.4914/2019(D) 6 conveyance used in carrying any of the Narcotic Drugs or Psychotropic Substances and inorder to have a clear idea, it is extracted hereunder:-
"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.-
(1) xxxxx (2) xxxxx (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." (Emphasis supplied) Therefore, a vehicle shall be liable to confiscation unless the owner of it proves that;
1. it was used without his knowledge or connivance or that of his agent and the person in charge of it and
2. each of the persons referred thereto had taken all reasonable precautions against use of it in the offence.
10. Sub-section (1) of Section 63 provides that, whether the accused is convicted or acquitted or discharged, the court shall decide, whether any article or thing seized in the case under the Act is liable to confiscation and if it decides that the article or thing is so liable, it may order confiscation.
Crl.MC.No.4914/2019(D) 7
11. 1st proviso to sub-section (1) of Section 63 provides that an order of confiscation of an article or thing shall not be made until the expiry of one month from the date of its seizure, or without hearing any person who may claim any right thereto and appreciating the evidence, if any, which he produces in respect of his claim. Sub-section (3) of Section 60 provides that any vehicle used in carrying any narcotic drugs shall be liable to confiscation unless the owner of the conveyance proves that it was so used without his knowledge or connivance, that of his agent, if any and that of the person in charge of the conveyance and that each of them had taken all reasonable precautions against such use. The overall effect of the above provisions is that after passing an order of conviction, acquittal or discharge as the case may be, the court holding the trial shall decide on the liability of the vehicle proved as used by the accused for transportation of the Ganja, for confiscation, if the vehicle used belongs to another person, the latter must be served with notice and reasonable opportunity of hearing must be afforded to him to establish that he or his agent or other person, who was in charge of it at the relevant time had taken all reasonable precautions against the use of the vehicle in the Crl.MC.No.4914/2019(D) 8 transportation of Ganja and it was used by the accused without knowledge or connivance of the owner or other persons referred to above. Only when the owner of the vehicle failed to establish the above, the vehicle shall be ordered to be confiscated. Therefore, if the article or thing seized in a case involving narcotic drugs or psychotropic substances is established as belongs to the accused himself in the trial held against him, the trial court shall decide on the liability of those to confiscation in the very same proceedings itself and record its finding on it in the judgment itself.
12. Whereas the article or thing seized in the case belongs to another person, after passing of an order of discharge in favour of the accused or passing of a judgment either of conviction or acquittal after holding trial, notice must be issued to the owner of the article or thing, at the relevant time of commission of the offence by the accused and an independent enquiry must be held simultaneous to the passing of the order or judgment as above by affording him with reasonable opportunity of being heard.
13. In the case on hand, as stated in the impugned order, a notice has been issued to the petitioner to show cause against the proposed confiscation and admittedly she has filed an affidavit. Crl.MC.No.4914/2019(D) 9 But the trial court failed to conduct any enquiry into the relevant aspects as contemplated under Sub-Section (3) of Section 60 and 1st proviso to Section 63 of the NDPS Act. The court below ought to have granted the petitioner, who is the owner of the vehicle and not an accused in the case, reasonable opportunity of being heard. The court below has passed the impugned order in an application filed by the owner of the vehicle for getting custody of it under Section 452 Cr.P.C, directing confiscation of the vehicle without holding an enquiry as contemplated under provisions discussed above. The court below observed in the impugned order that the petitioner failed to establish the relevant aspects envisaged under sub-section (3) of Section 60 of NDPS Act without affording him reasonable opportunity to establish. The impugned order suffers for the reasons stated above.
In the result, Crl.M.C stands allowed. The impugned order is set aside. The court below shall decide on the liability of the vehicle to confiscation after initiating an independent enquiry, affording reasonable opportunity to the petitioner to adduce evidence to establish lack of knowledge or connivance of herself, her agent, if any and the person in charge of the vehicle at the Crl.MC.No.4914/2019(D) 10 relevant time, about the use of the vehicle in the offence alleged and the reasonable precaution taken by each of them against use of it by the accused in the transportation of Ganja.
Sd/-
MARY JOSEPH
JJ JUDGE
Crl.MC.No.4914/2019(D) 11
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 A TRUE COPY OF THE FIR IN CRIME NUMBER
429 OF 2018 OF KUTHUPARAMBA POLICE
STATION.
ANNEXURE II CERTIFIED COPY OF THE ORDER IN CMP
NO.5398 OF 2018 IN CC NO.841 OF 2018
ON THE FILES OF THE JUDICIAL FIRST
CLASS MAGISTRATE, KUTHUPARAMBA.
//TRUE COPY//
Sd/-
PA (GR II) TO JUDGE