Calcutta High Court (Appellete Side)
Shah Hasib Mohammad vs State Of West Bengal on 27 November, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
1 27.11.2018
. C.R.R. No. 1178 of 2018
rc.
In the matter of: Shah Hasib Mohammad
...Petitioner.
-Versus
State of West Bengal
Mr. Sudip Ghosh Chowdhury ...for the petitioner
Mr. Sanjay Bardhan
Mr. Kaushik Biswas ...for the State
This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure whereby and whereunder the order impugned dated 07.05.2018 has been passed by the learned Additional Sessions Judge, Special Court (E.C.Court), Hooghly in NDPS Case No. 25/2016 arising out of Gurap Police Station Case No. 120/2016 dated 13.09.2016 under Sections 20(b(ii)(c) of the NDPS Act. It is submitted that the petitioner is a permanent resident of Rabindranagar Paschimpara, Police Station Chinsurah, District - Hooghly and is the registered owner of the vehicle being registrtion no. WB06B9990 as per Annexure P1.
The case under reference was started against the accused persons on the complaint lodged by the Sub-Inspector of Police, Gurap Police Station to the effect that some persons were carrying Ganja by the said vehicle in question in Kongsaipur area through Durgapur expresway. A General Diary was entered into being GD Entry No. 41/2016 dated 13.09.2016 and the petitioner along with other police officials went to the spot and arrested the eleven miscreants with Ganja of about 48 Kgs. Being carried by the two vehicles being registration no. 2 WB 16P 3050 and WB 06B 9990. After completion of the trial on framing of the charges under Section 20(b)(ii)(c) of the NDPS Act the learned trial Judge under NDPS Act acquitted all the accused persons of the charge under the provision of Section 235(1) of the Code of Criminal Procedure including the present petitioner and it was specifically recorded that the seized alamats be disposed of after the expiry of statutory period of appeal in accordance with the law by the appropriate authority.
After the order of acquittal a report of the Investigating Officer was called for on the prayer made by the petitioner. The report was submitted before the learned Trial Court on 11.04.2018 stating that during investigation Investigating Officer had seized the vehicles being WB06B9990 along with all connected papers from the petitioner, Shah Hasib Mohammad, being the registered owner of the vehicle.
The order being no. 70 dated 07.05.2018 passed in NDPS Case No. 25 of 2016 shows that the petition dated 04.05.2018 is devoid of any merit and was rejected accordingly. I scrutinize the judgment dated 25.01.2018 with the finding that the court had specifically directed that the seized alamats be disposed of after the expiry of statutory period of appeal in accordance with the law by the appropriate authority and accordingly the learned judge was of the view that the seized vehicles shall be disposed of or confiscated to the State by the appropriate authority in accordance with law as a Court has no further authority to deviate from the said judgment.
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It is submitted that the learned judge has failed to consider the fact that the vehicle can damage the parts of the vehicle and since the trial has been concluded and the case is disposed of with the direction the seized alamats be disposed of after the expiry of statutory period of appeal in accordance with the law by the appropriate authority further retention of the vehicle would be arbitrary but the ground taken cannot be said to be in accordance with law the order impugned which the learned judge has passed because the learned judge has simply recorded that he is not competent authority to dispose of the vehicle under the case because the direction is given for its disposal in accordance with law. Now, learned advocate for the petitioner and also the State invites my attention to the provision of Sections 60, 61, 62 and 63 of the NDPS Act. Section 60 is germane herein and the same is quoted 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 substances, controlled substances, 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.
(2) Any narcotic drug or psychotropic substances 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 4 psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substances 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 substance 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."
My attention is also invited to decision in the case of Ainul Haue Vs. State of West Bengal & Anr. reported in 2015 CRI.L.J. 4913 wherein it has been specifically observed that - The one obligation on the part of the court returning the seized vehicle to the registered owner is that the registered owner of the vehicle must produce the same before the court on conclusion of trial, so that the court can decide whether the said vehicle is liable to be confiscated or returned to the rightful claimant. But the facts in the present case is small different. The case against the petitioner has been disposed of resulting in 5 acquittal so obviously on perusal of the provision of Section 61 of the NDPS Act relating to the confiscation of the goods used or substance cannot be well adhered to the facts that it cannot be said that the vehicle was used for carrying the Narcotic substance being Ganja.
I have ascertained from the learned advocate for the State and the report was obtained from Sub-Inspector of Police, Gurap P.S., Hooghly dated 22.11.2018 about the fact as to whether the vehicle is an offending vehicle. The court is required to first decide that the vehicle is an offending vehicle because such a vehicle is used for trafficking the drugs of the narcotic in several cases but there is no such report against this vehicle that the vehicle is also used for some other cases for carrying Ganja or narcotics drugs etc. and it would be evident from the report so submitted by the Sub-Inspector of Police that no case is lying at the police station against the vehicle. Therefore, the vehicle cannot be treated as offending vehicle for the purpose of its confiscation.
Reference may be made in the case of Sundarbhai Vs. State of Gujarat reported in 2002(10) SCC 283 where Supreme Court was of the view that it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond as security for return of the vehicles, if required, at any point of time. This can be done upon hearing of the application for return of such vehicles.
Reference may be made in the case of B.S.Rawant Vs. Shaikh Abdul Karim reported in 1989(2) Bom CR 209 wherein it has been held that provision of Section 451 or 457 of the Code of Criminal Procedure are not inconsistent with the provisions of NDPS Act and such seized article or seized vehicle may 6 be returned to the rightful claimant as an interim custody on condition that the said seized vehicle or seized article may be produced before the trial Court for taking final decision whether the said vehicle is liable to be confiscated or to be returned to the rightful owner.
In view of the provision as made in Section 63(1) of the NDPS Act, 1985 it is clearly noted that in the trial of offences under the Act whether the accused is convicted or acquitted or discharged it is incumbent on the part of the Court to discharge whether any article or things seized under the Act is liable to be 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. Therefore, it cannot be said that the learned Special Judge need not entertain the application as not maintainable before him for disposal of the vehicle after the order of acquittal recorded in favour of the petitioner.
In the context above, this revisional application is disposed of with direction to the learned Special Judge under NDPS Act to reconsider the prayer of the petitioner for its disposal by way of return to its lawful claimant.
Urgent xerox certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Shivakant Prasad, J.)