Madhya Pradesh High Court
Abhijit Singh vs The State Of Madhya Pradesh on 14 December, 2010
Author: Rakesh Saksena
Bench: M.A.Siddiqui, Rakesh Saksena
(1) Cr.A.No.590/2010
HIGH COURT OF MADHYA PRADESH: JABALPUR
(AFR)
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri M.A.Siddiqui
CRIMINAL APPEAL NO.590/2010
Abhijit Singh S/o Prakash Narayan aged
about 10 years resident of village Sonbarsha
P.S. Garh District Rewa (MP) (Minor)
Through his father Shri Babbu Singh @
Prakash Narayan Singh S/o Shri Sadhulal
aged about 33 years resident of village
Sonversa P.S.Garh District Rewa (MP).
.......Appellant
-Versus-
State of Madhya Pradesh
Through Police Station - Garh,
District-Rewa (Madhya Pradesh)
.......Respondent
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For the appellant: Shri Sandeep Singh,Advocate.
For the respondent: Shri Yogesh Dhande, Panel Lawyer.
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Date of hearing: 16/11/2010
Date of Order: 14/12/2010
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ORDER
Per: Rakesh Saksena,J.
Question of law which crops up for consideration on reference by single bench about the applicability of the proviso attached to section 63(2) of Narcotic Drugs and Psychotropic Substances Act, 1985 is :-
"Whether the proviso would be applicable to a case where a registered owner of the vehicle or his known agent and person-in-charge thereof has faced the trial ?"
2. Relevant facts for proper appreciation of the issue raised, are taken from the reference order dated 7.9.2010 that this appeal, (2) Cr.A.No.590/2010 under section 454 of the Code of Criminal Procedure, has been preferred against the order directing confiscation of the jeep, bearing registration No. MP-17-B-1901, as contained in the operative part of the judgment dated 17.9.2009 passed by Special Judge (under the Narcotic Drugs and Psychotropic Substances Act, 1985) [for short 'the Act'], Rewa in Special Case No.14/2008. By that judgment, accused persons viz. Sardar Saket and Babbu Singh alias Prakash Narayan Singh, father of appellant Abhijit Singh, were convicted under section 8(c) read with section 20(b)(ii)(B) read with section 29 of the Act and sentenced to undergo rigorous imprisonment for 15 months and to pay fine of Rs.15,000/- and in default, to suffer rigorous imprisonment for one year.
3. Undisputedly, the appellant, a minor, is the registered owner of the vehicle.
4. Learned counsel for the appellant, before the single bench, placing reliance on the decision of another single bench decision of this Court in Prem Narayan Gupta vs. State of M.P. 2003(1) MPLJ 122 submitted that the order of confiscation without affording opportunity to appellant of being heard was not sustainable in law. In case of Prem Narayan (supra), order of confiscation of Maruti Van owned by the appellant, who was found guilty of transportation of 1.87 quintals of Ganja, was set aside on the ground that no inquiry as per proviso to sub-section (2) of section 63 of the Act (hereinafter referred to as 'the proviso') was made. Single Bench raised some doubt as to the correctness of the judgment in Prem Narayan's case (supra). According to it, the proviso to sub-section (2) of section 63 of the Act is attracted only when a person, who committed offence in connection with the seized vehicle, is not known or cannot be found because it is a cardinal principle of interpretation that a proviso does not travel beyond the provision to (3) Cr.A.No.590/2010 which it is appended. Accordingly, the proviso would not be applicable to the subject matter covered by sub-section (1) of section 63 of the Act. In Prem Narayan's case (supra), language of the proviso was construed with reference to the provision of sub-section (3) of section 60 of the Act. A known owner of the vehicle, irrespective of whether he is tried as an accused or not as well as irrespective of the decision of the trial Court, in order to save his vehicle from confiscation, has to prove that the vehicle was used for transportation of contraband without knowledge or connivance of himself, or his agent or person-in-charge of the conveyance and that each of them had taken all reasonable precautions against such use.
5. Before proceeding to answer the reference, attention may be directed to the provision of section 63 of the Act which are reproduced 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 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, (4) Cr.A.No.590/2010 as nearly as may be practicable, apply to the net proceeds of the sale."
6. A bare perusal of sub-section (1) section 63 reveals that in the trial of offence under the Act, the Court has to decide whether any article or thing seized under the Act is liable to be confiscated under sections 60, 61 or 62 and, if it decides that the article, is so liable, it may order its confiscation irrespective of the fact whether accused is convicted, acquitted or discharged.
7. Sub-section (2) of section 63 is attracted in different circumstances where the person who committed the offence under the Act is not known or cannot be found. Thus, an article seized under the provisions of the Act can be confiscated if it appears liable to confiscation under sections 60, 61 or 62 of the Act. Even if the person who committed the offence in connection with the contraband is not known or cannot be found but the proviso attached to section 63(2) carves out an exception to this provision that no order of confiscation of the said article 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. The language of this proviso, if construed, normally means that even if the offender is not known or cannot be found still court may inquire into and decide the liability of such vehicle to be confiscated but subject to conditions (i) that no order of confiscation of the article shall be made until the expiry of one month from the date of seizure or (ii) without hearing any person who may claim any right to that contraband or article or considering any evidence produced by him in respect of his claim.
8. There is marked distinction between the provisions of section 63(2) and section 60(3) of the Act. Sub-section (3) of section 60 of the Act reads as under:-
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"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.-
(1).... ....
(2).... ....
(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) of 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.
9. On a plain reading of section 60(3), it can be concluded that for escaping the confiscation under the Act section 60(3) imposes a liability on the owner of the seized animal or conveyance to prove that it was 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. The standard of proof required from the owner of the conveyance is similar as lies on the prosecution to prove its case. This is in view of the provision of section 35 of the Act which engrafts a presumption of culpable mental state. It reads as under:-
35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable (6) Cr.A.No.590/2010 doubt and not merely when its existence is established by a preponderance of probability.
Sub-section (2) clearly postulates that a fact under the Act is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
10. The aforesaid standard of proof is required for a person to save the seized vehicle from confiscation and escape the liability for confiscation under both the provisions i.e. under section 60(3) or under section 63(2) of the Act, yet in view of the proviso attached to sub-section (2) of section 63 right of hearing and to adduce evidence if any in respect of his claim is conferred only when the person who committed the offence in connection with the vehicle or article is not known or cannot be found. In Dwarka Prasad Vs. Dwarka Das Saraf - AIR 1975 SC 1758, Apex Court held that a proviso must be limited to the subject matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. 'Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context'. .... ...... ....... ......To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. In M/s. Mackinnon Mackenzie and Co.Ltd. v. Audrey D' Costa and another- AIR 1987 SC 1281, Apex Court held "the proviso cannot travel beyond the provision to which it is a proviso." In Kush Sahgal and others vs. M.C.Mitter and others- AIR 2000 SC 1390, Apex Court explained that:- " Since the natural presumption is that but for the PROVISO, the enacting part of the (7) Cr.A.No.590/2010 section would have included the subject-matter of the PROVISO, the enacting part has to be given such a construction which would make the exceptions carved out by the PROVISO necessary and a construction which would make the exceptions unnecessary and redundant should be avoided (See: Justice G.P.Singh's "Principles of Statutory Interpretation" Seventh Edition 1999, p-163). This principle has been deduced from the decision of the Privy Council in Govt. of the Province of Bombay v. Hormusji Manekji, AIR 1947 PC 200 as also the decision of this Court in Durga Dutt Sharma v Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980.
11. In view of the aforesaid proposition of law, we find that the proviso tacked with sub-section (2) of section 63 is applicable only to enacting part of section 63(2) of the Act. It cannot be stretched out to make applicable to the provision of sub-section (3) of section 60 of the Act where the accused is a known person.
12. It has been observed by the Apex Court in Ganga Hire Purchase Pvt. Ltd. vs. State of Punjab and others (1999) 5 SCC 670, that "the very purpose for engrafting sub-section (3) of section 60 of the NDPS Act is to have it as a deterrent measure to check the offences under the Act in question which have been found to be dangerous to the entire society. In the absence of any definition of "owner" in the NDPS 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."
13. It is though settled that the PROVISO does not travel beyond the provision to which it is attached, yet in respect to the proviso attached to section 63(2) of the Act we feel that sometime an occasion may arise where the person who committed the offence, even if is known and/or has been found, the person claiming his right (8) Cr.A.No.590/2010 to the article/vehicle liable to be confiscated, should be heard and permitted to adduce evidence in respect of his claim. Such eventuality may arise when the owner of the vehicle is not known. For sake of example if accused steals a car at Ahmedabad and is apprehended at Indore carrying contraband in it and is prosecuted under the Act at Indore, and it is not disclosed to owner of the car of it being seized at Indore, should owner of the car be debarred from claiming his right to car merely because the person who committed the offence in relation to car was known and apprehended.
14. In the aforesaid circumstances, in our opinion, it would be unjust to deny owner of the car to claim his right to it merely because the offender was known. Of course it would be incumbent on the owner of the car to satisfy the conditions contemplated in sub- section (3) of section 60 of the Act.
15. Where the person who committed the offence is known or has been found, is himself the owner, agent or guardian of the owner of the vehicle/article, the provisions of section 63(2) would not be applicable to him. Provisions of section 63(2) confer jurisdiction on court to decide the liability in respect of an article to confiscation even if the offender is not found or is not known, but the 'PROVISO' attached to it saves right of any person who may claim any right in the article. It incorporates an element of the principles of natural justice that nobody should be deprived of his property without having an opportunity of being heard.
16. It has been clarified by the Apex Court in case of Ganga Hire Purchase (supra) that in the absence of any definition of "owner" in the NDPS 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.
(9) Cr.A.No.590/2010
17. Under the provisions of Motor Vehicles Act, 1988 "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor,...... ...... .....".Thus, where the registered owner of the vehicle is minor, his guardian shall be deemed to be the owner of such vehicle.
18. Having thus considered, we are of the view that where the person who committed the offence under the Act is known and has faced the trial and himself is the owner of the vehicle, the proviso attached to sub-section (2) of section 63 would not be applicable. Answer to this reference would therefore be :-
"The 'proviso' would be applicable to a case wherein owner of the article/vehicle or his known agent and person-in-charge thereof has not faced the trial."
19. After due consideration of the matter from different angles, we respectfully say that view taken by the single bench in Prem Narayan's case (supra) does not lay down the correct view of law and it is, accordingly, over-ruled.
20. Let the matter be now placed before the single bench for its decision on merit.
(Rakesh Saksena) (M.A.Siddiqui)
Judge Judge
b
(10) Cr.A.No.590/2010