Kerala High Court
B.Hassainar Azeez vs State Of Kerala on 31 December, 2016
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939
Crl.MC.No. 2138 of 2017 ()
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CRMP 4962/2016 of SESSIONS COURT,KASARAGOD
CRIME NO. 513/2016 OF KASARAGOD POLICE STATION , KASARGOD
PETITIONER/ACCUSED:
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B.HASSAINAR AZEEZ,
AGED 29 YEARS, S/O.HASSAINAR, THALEKKUNNU HOUSE,
BEDADKA P.O., MUNNAD VILLAGE, CHENGALA VIA,
KASARAGOD TALUK AND DISTRICT.
BY ADVS.SRI.RAHUL SASI
SMT.NEETHU PREM
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.
BY SR. PUBLIC PROSECUTOR, SRI SUMAN CHAKRAVARTHY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-04-
2017 ALONG WITH CRLM.C.2142/2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.MC.No. 2138 of 2017 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE A1- A TRUE COPY OF THE FIR IN CRIME NO.513 OF 2016 OF
KASARAGOD POLICE STATION.
ANNEXURE A2- A TRUE COPY OF THE SEIZURE MAHAZAR IN CRIME NO.513 OF
2016 OF KASARAGOD POLICE STATION.
ANNEXURE A3- A TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VW
POLO 1.2 CR HIGHLINE CAR BEARING REG. NO.KL-60D-575.
ANNEXURE A4- A TRUE COPY OF THE ORDER IN CMP. NO.4962 OF 2016 DATED
31/12/2016.
RESPONDENT(S)' EXHIBITS : NIL
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// True Copy //
PA to Judge
C.R.
B.SUDHEENDRA KUMAR, J.
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Crl.M.C Nos.2138 and 2142 of 2017
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Dated this the 12th day of April 2017
O R D E R
The 2nd accused in crime No. 513/2016 of Kasargod police station registered under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act'), filed application before the court below under Section 451 of the Criminal Procedure Code (for short 'the Code') seeking for the release of the vehicle involved in that case. The court below dismissed the said application, against which Crl.M.C.2138/2017 has been filed by the accused. The registered owner of the vehicle Crl.M.C.2138 & 2142/2017 -: 2 :- involved in Crime No.517/2016 of Kasaragod Police Station registered under Section 20(b)(ii)(B) of the NDPS Act, filed application under Section 451 of the Code before the court below seeking for the release of the vehicle involved in that case. He is not an accused in the crime. The court concerned dismissed the said application. The registered owner challenges the said order in Crl.M.C.2142/2017. Since the challenge in both these cases is the orders passed by the court below, dismissing the applications filed by the petitioners seeking for the release of the vehicles involved in the offence under the NDPS Act, these two Cr.M.C.s are disposed of by this common order.
2. Heard both sides.
Crl.M.C.2138 & 2142/2017 -: 3 :-
3. In Crl.M.C.No.2138/2017, the prosecution allegation is that on 25.07.2016 at 6.45 p.m., the petitioner and the accused were found in possession of 3.430 kg of ganja in vehicle bearing registration No.KL-60-D-575, belonging to the petitioner, in contravention of the provisions of the NDPS Act. The vehicle was also seized along with the contraband on 25.07.2016.
4. In Crl.M.C.2142/2017, the prosecution allegation is that on 26.07.2016 at about 7.20 pm, the accused in the said case was found in possession of 1.950 kg of ganja in the vehicle of the petitioner bearing registration No.KL-14
-Q-703, in contravention of the provisions of the NDPS Act. The vehicle was also seized from the spot along with the contraband.
Crl.M.C.2138 & 2142/2017 -: 4 :-
5. In Crl.M.C.2138/2017, the court below dismissed the application filed by the petitioner stating that the vehicle was liable to be confiscated under the provisions of the Act as the petitioner was the second accused in the said crime. The application filed by the petitioner in Crl.M.C.2142/2017 was dismissed by the court below stating that since the petitioner was working abroad, there was chance for the vehicle to reach the hands of persons who indulge in the transport of ganja.
6. Sub-section (3) of Section 60 of the NDPS Act provides that any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance shall be liable to confiscation unless the owner of the animal or conveyance proves that it was so used Crl.M.C.2138 & 2142/2017 -: 5 :- without the knowledge or connivance of the owner himself, and that he had taken all reasonable precautions against such use. The provisions of Section 63 of the NDPS Act empowers the court to confiscate the vehicle involved in NDPS offence. Sub-section(1) of Section 63 of the NDPS Act provides that in the trial of offences under the NDPS 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 the court decides that the article is so liable, it may order confiscation accordingly. The first proviso to sub-section (2) of Section 63 provides that no order of confiscation of an article or thing shall be made until the expiry of one Crl.M.C.2138 & 2142/2017 -: 6 :- 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.
7. On a combined reading of Section 63 and sub- section (3) of Section 60 of the NDPS Act, it is clear that when any conveyance used for carrying any narcotic drug or psychotropic substance is liable to confiscation, the confiscation order can be made by the court only at the end of the trial and that itself, only after hearing the person who may claim any right thereto and considering the evidence, if any, which he may produce in support of the claim.
8. There is no provision under the NDPS Act, which empowers the trial court to make an order for granting Crl.M.C.2138 & 2142/2017 -: 7 :- interim custody of such a conveyance, pending trial. Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure shall apply, in so far as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 5 of Cr.P.C. provides that nothing in the code shall affect any special law. A special law is a law applicable to a particular subject. The existence of a Crl.M.C.2138 & 2142/2017 -: 8 :- special law does not exclude the operation of the Code unless the special law expressly or impliedly provides in that regard, in which case, special law will apply. There is no specific provision in the NDPS Act which expressly or impliedly excludes the operation of Section 451 of the Code. The provisions of Section 451 of the Code are also not inconsistant with any of the provisions of the NDPS Act, including Sections 60(3) and 63 of the NDPS Act. Therefore, the court can invoke the general provisions of Section 451 of the Code for handing over the interim custody of the seized vehicle, pending the final decision of the criminal case. The only consideration on the part of the court in handing over the interim custody of the vehicle to the registered owner is that the registered owner Crl.M.C.2138 & 2142/2017 -: 9 :- of the vehicle must produce the vehicle before the court for trial and also for the purpose of confiscation, if required by the court and for securing that the said vehicle is not used in similar type of offence in future.
9. As regards the disposal of the seized vehicle, the Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat [(2002)10 SCC 283] held in para 17 thus:-
" In our view, whatever be the situation, it is of no use to keep such seized vehicle at the Police Station 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"
Crl.M.C.2138 & 2142/2017 -: 10 :-
10. The Apex Court further held in Sunderbhai Ambalal Desai (supra) that in case where the vehicle is not claimed by the accused, owner, or the insurance company or by any third person, then such vehicle may be ordered to be auctioned by the court. It is clear from the above proposition of law that there is no impediment in handing over the interim custody of the vehicle even to the accused, if he is the registered owner of the vehicle. However, the Apex Court in Sunder Bhai Ambalal Desai (supra) held that before handing over possession of the vehicle to the interim custody of the registered owner, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.
11. In Sunderbhai Ambalal Desai (supra), the Apex Crl.M.C.2138 & 2142/2017 -: 11 :- Court directed the Criminal Courts to exercise the power under Section 451 of the Code of the Criminal Procedure for handing over the interim custody of the vehicle to the registered owner of the vehicle on conditions, pending final decision in the criminal case.
12. Under the NDPS Act, the court alone is having the jurisdiction to confiscate the vehicle seized under the Act. No officer of the Police or Excise Department is vested with the power of confiscation of vehicle under the NDPS Act. Section 63(1) clearly says that the court shall decide whether any article or thing seized under the Act is liable to confiscation under Section 60, Section 61 or Section 62, irrespective of whether the accused is convicted Crl.M.C.2138 & 2142/2017 -: 12 :- or acquitted or discharged. This would show that the question of confiscation arises only after the conclusion of the criminal case. It is not possible to state when the trial will be concluded after the seizure of the property. Therefore, if the vehicle is not released to the interim custody of the registered owner of the vehicle, there is likelihood that the value of the vehicle will be lost due to the ruining of the vehicle in rain and sun.
13. Going by the directions issued by the Apex Court in Sunderbhai Ambalal Desai (supra), it is imperative on the part of the court to hand over the interim custody of the vehicle seized to the registered owner and if the registered owner is not prepared to accept the same, to the insurance company. It was observed by the Apex Court Crl.M.C.2138 & 2142/2017 -: 13 :- that in case, where the vehicle is not claimed by the accused, owner or the insurance company or by any third person, then the said vehicle may be ordered to be auctioned by the court. It is very much clear from the decision in Sunderbhai Ambalal Desai (supra) that it is the duty of the court to ensure that the vehicle seized in connection with any offence will not be kept in the police station or in the court premises indefinitely till the completion of the trial and the subsequent confiscation. If the vehicles are kept in the police station or in the court premises indefinitely, due to the ruining of the vehicle in sun and rain, the value of the vehicle will be diminished considerably and at the time of confiscation, the vehicle will be only a scrap. In order to avert that situation, it is Crl.M.C.2138 & 2142/2017 -: 14 :- necessary to release the vehicle to the interim custody of the registered owner of the vehicle.
14. However, before releasing the vehicle to the interim custody of the registered owner, the court will impose conditions to ensure that the vehicle will be produced before the court for identification and also for the purpose of confiscation. The court should also get an undertaking from the registered owner that the vehicle will not be used for any similar offence.
15. The upshot of the above discussion is that the vehicles seized under the N.D.P.S. Act can be released to the interim custody of the registered owner of the vehicle under Section 451 of the Code, even if the accused himself is the registered owner. Before granting interim custody of Crl.M.C.2138 & 2142/2017 -: 15 :- the vehicle, appropriate photographs of the vehicle should be taken and detailed panchnama should be prepared and the vehicle can be handed over to the registered owner only by taking appropriate bond and guarantee as well as security for return of the said vehicle if required by the court at any point of time. If the accused himself is the registered owner, the vehicle can be released to the accused only after taking appropriate bond and also bank guarantee equivalent to the value of the vehicle, for securing the production of the vehicle for identification before the court and also for confiscation, if required by the court. It is proper to assess the value of the vehicle by a mechanical Engineer of PWD.
16. The value of the vehicles shall be assessed by Crl.M.C.2138 & 2142/2017 -: 16 :- the Mechanical Engineer of PWD in all cases as expeditiously as possible and at any rate within a period of ten days from the date of seizure of the vehicles, to enable the courts to release the vehicles to the interim custody of the registered owners within the period stipulated by the Apex Court in Sunderbhai Ambalal Desai (supra)
17. The consideration will be different if the owner is not the accused. If the owner is not the accused, the owner may be able to prove that the vehicle was so used without the knowledge or connivance of the owner and that the owner had taken all reasonable precautions against such use. Therefore, if the registered owner claiming the property is not the accused, the court will be justified in releasing the vehicle to the owner on executing sufficient Crl.M.C.2138 & 2142/2017 -: 17 :- bond with solvent sureties. The claimant must also satisfy the court that he is the registered owner of the vehicle. The court must also make a condition that the owner should not transfer the vehicle or otherwise dispose of the vehicle without the permission of the court. In all cases, the court will also direct the owner to give an undertaking that the vehicle will not be used for any other similar purpose. However, if the vehicle once released on interim custody is used again for a similar offence, the bond amount will have to be forfeited and the vehicle will be subsequently released on interim custody only on furnishing the bank guarantee for the value of the vehicle and on executing sufficient bond with solvent sureties, even if the registered owner is not the accused.
Crl.M.C.2138 & 2142/2017 -: 18 :-
18. Admittedly, the petitioner in Crl.M.C. No.2142 of 2017 is not the accused in the case. However, the petitioner in Crl.M.C. No.2138 of 2017 is the accused. For the reasons stated above, both the petitioners are entitled to get the respective vehicle released from the court concerned on condition of each of the petitioners executing a bond for a sum equivalent to the value of the vehicle concerned, with two solvent sureties each, each for the like sum to the satisfaction of the court concerned and on undertaking that the vehicle concerned shall be produced before the court during the course of enquiry, trial or confiscation proceedings as and when required by the court. The petitioners shall not sell or otherwise transfer the vehicle concerned in favour of any 3rd party Crl.M.C.2138 & 2142/2017 -: 19 :- without the prior permission of the court. The petitioners shall not make any change to be made in the vehicle concerned so as to make it unidentifiable. The court shall also get an undertaking from the petitioners that the vehicles will not be used for any similar offence. The appropriate photographs of the said vehicles should be taken before releasing the vehicle. In addition to the above conditions, the petitioner in Crl.M.C. No.2138 of 2017, being the accused in the case concerned, shall furnish bank guarantee equivalent to the value of the vehicle. The court concerned shall ensure that the value of the above said vehicles will be assessed by the Mechanical Engineer of PWD within five days from the date of production of a copy of this order before the court by the petitioner Crl.M.C.2138 & 2142/2017 -: 20 :- concerned, if not already assessed.
For the reasons stated above, the orders impugned in the above Crl.M.Cs stand set aside and the vehicles concerned shall be released to the petitioners as directed above.
In the result, these Crl.M.Cs stand allowed.
Sd/-
B.SUDHEENDRA KUMAR, JUDGE stk..dl/18.4..2017