Bombay High Court
B.S. Rawant vs Shaikh Abdul Karim And Another on 2 February, 1989
Equivalent citations: 1989(2)BOMCR209
ORDER
1. On August 31, 1987 the Bombay Customs, intercepted a taxi bearing registration No. MMO 2649 at the junction of Keshavji Naik Path and S.V. Road, Bombay-400009. One Taj Mohd. Jan Mohd. Pathan was the driver and the sole occupant of the taxi, at the time of interception. It was found that the taxi was being used for carrying six packages weighing about 76 kgs. containing brown powder purported to be brown sugar and 18 kgs. of white powder purported to be Heroin. The said person was arrested and the taxi was seized under a panchanama. The accused has been charged under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") and the case is pending.
2. In the meanwhile on Janaury 29, 1988 the present respondent 1 made an application before the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, for return of the said taxi, on the basis that he is the owner of the said taxi, and that he has a taxi-permit and a valid motor driving licence, and that the taxi is lying at the Customs House unattended and its machinery is getting rusted since last several months, and that no useful purpose would be served by keeping the abovementioned taxi in the custody of the Customs authorities. On this application, the learned Magistrate issued a notice to the Customs Authorities, and after hearing both the parties, the learned Magistrate passed the following order :
"Taxi to be returned to applicant on his executing bond of Rs. 90,000/- with one surety in the like amount.
Taxi being a mechanically propelled vehicle is likely to be damaged if not in use and therefore it is expedient in the interest of justice to return the taxi to the registered owner (Applicant). Accused has given his no objection and under the N.D.P.S. Act court has power to pass order regarding disposal of vehicle."
3. It appears that Mr. Gupte, who appeared for the prosecution, brought to the notice of the Learned Magistrate various documents and material indicating how respondent 1 could not claim the taxi on the basis of ownership rights. However, there was no affidavit before the learned Magistrate in this behalf. So also the order is absolutely silent on all these aspects argued by Mr. Gupte, of which argument, I have no doubt whatsoever.
4. It is against this order, the Customs Authorities have filed the present criminal revision application.
5. Mr. Gupte advanced several propositions. Firstly, he contended that the learned Magistrate could have had no jurisdiction to pass any order for return of the taxi inasmuch as, the case is to be tried by the learned Sessions Judge and he alone has the jurisdiction to pass such an order.
Secondly, he submitted that if one has regard for the scheme of the NDPS Act, 1985, there is no question of passing any interim order of handing over to any person, any conveyance, or vehicle pending the trial, which vehicle is liable to be confiscated ultimately. He further submitted that S. 451 of the Criminal P.C. or for that matter S. 457 of the Criminal P.C. will have no application whatsoever in view of certain provisions of the said NDPS Act, 1985.
6. The relevant provisions which provide for disposal and confiscation of the properties or the conveyance used for the purpose of committing any offence under the said Act are as follows :
"Section 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 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."
Section 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 S. 60 or S. 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 S. 60 or S. 61 or S. 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 any 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 this claim :
Provided further that if any such article or thing other than a narcotic drug, psychotropic 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.
(3) Any person not convicted who claims any right to property which has been confiscated under this section may appeal to the Court of Session against the order of confiscation."
On the basis of these provisions Mr. Gupte submitted that if a conveyance has been used for commission of any offence under this Act the same shall be liable to confiscation. He submitted that the confiscation shall take place only at the end of the trial. It is at that point of time the owner of the conveyance can approach the Court, and if he satisfied the Court that the vehicle was used without the knowledge or connivance of the owner himself, or his agent, if any, or the person-in-charge of the conveyance, and that each of them as the case may be, had taken all reasonable precautions against such use, the Court may not pass any order of confiscation. He further submitted that even if the Court passes any order of confiscation, it is open to the owner to appeal against such an order of confiscation. He, therefore, submitted that there is no provision under this Act whereby the vehicle can be given to any person, pending the hearing and disposal of the case.
7. Under the second proviso of S. 63 sub-section (2) of the NDPS Act, 1985, it is open to the Court to dispose of, or sell the article if the article 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. Mr. Gupte also submitted that it is only in these contingencies, it is open to the learned Magistrate, to pass such an order and not otherwise.
8. Mr. Gupte further submitted that the Act provides for seizure and arrest, and to that extent the provisions of the Cr.P.C. will not apply at all. In this connection he relied upon Sections 41, 42, 43, 51, 52, 53 and 55 of the NDPS Act. It is better to quote some of these provisions to the extent that they are relevant for the present discussion. Section 41 provides for power to issue warrant and authorisation. It is S. 42 which provides for power of entry search, seizure and arrest without warrant or authorisation, and in the present case it is under S. 42 the vehicle was seized. After seizure of the vehicle, the Officer concerned can take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act. That is provided under S. 55 of the NDPS Act, 1985, which reads as follows :
"Section 55. Police to take charge of articles seized and delivered - An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."
Even though the officer who has seized this vehicle is not a police officer, by virtue of S. 53 he becomes one, and he has the necessary powers of an officer-in-charge of a police station. Mr. Gupte has relied upon S. 51 to say that the provisions of S. 451 and also S. 457(1) of the Criminal P.C. are not applicable, Section 51 of the NDPS Act, 1985 is as follows :
"Section 51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. - The provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall apply, in so far as they and not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."
9. I am told that in the present case the vehicle has not been produced before the Magistrate. The vehicle has also not been taken charge of by virtue of any warrant issued under the provisions of S. 41. It is clear that an officer of the Customs has seized this vehicle under S. 42 read with S. 43 of the NDPS Act, 1985, and by virtue of S. 53 he is empowered as if he is an officer-in-charge of a police station. Under S. 55 he shall take charge of and keep the same in safe custody and the vehicle shall be detained or kept sealed within the local area of the police station and the same shall be "pending the orders of the Magistrate." What is the meaning of the words, "pending the orders of the Magistrate" ? It is true that S. 51 of the NDPS Act, 1985, says that the provisions of the Cr.P.C. will not apply if they are inconsistent with the provisions of this Act in respect of warrants issued, and arrests, searches and seizures made, under this Act. Mr. Gupte submits that this must necessarily include confiscation. I have no quarrel with this proposition of Mr. Gupte. But, I do not find, from reading of all these provisions, that these provisions necessarily exclude the operation of S. 451 or S. 457(1) of the Criminal P.C. Under Sections 60 and 63 such an article or vehicle used for the purpose of commission of an offence under this Act, is liable for confiscation. In other words, the article or the vehicle must be available at the time of the trial or at the end of the trial for the purpose of confiscation. It does not mean that the vehicle shall always remain at the concerned police station pending the trial. Mr. Gupte's submission is that it is only as provided under the second proviso, under sub-section (2) of S. 63, an order can be passed for sale or disposal of the article, if those contingencies apply. I am not prepared to accept this submission of Mr. Gupte. In fact, this proviso has no application to the present case. This proviso applies if the Court wants to dispose of or sell the vehicle. Such a question does not arise in this petition before me. There again, the idea is that if an article 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 the Court may direct it to be sold and the sale proceeds shall remain with the Court so as to make it available for the purpose of making an order of confiscation which may have to be passed as provided under the Act. In fact, we are not concerned with a situation of this kind at all. Here is a vehicle, of which respondent 1 claims to be the owner, and according to him, he is not concerned with the offence, and he is seeking an order for the custody of the vehicle pending the disposal of the case, and he says that he would produce the same subject to terms and conditions imposed upon, at the time of the final hearing of the matter. Since there is no provision under the Act prohibiting interim custody, and if S. 451 or S. 457(1) of the Criminal P.C. is not inconsistent with the provisions of this Act, there is no reason why such an application cannot be considered by the Court.
10. The object of the Act is to see that the vehicle which is used for such an offence is not made available to the persons who have indulged in these activities. They shall not have the benefit of such a vehicle. By and large if an accused person is himself the owner of the vehicle and he uses such a vehicle for the purpose of conveying the drugs, then of course, it is possible for the prosecution to contend that it is against the interest of justice that such a vehicle be given to the accused pending the trial. But in a given case, it might be that a vehicle belonging to innocent owner is stolen by the accused, and in that event, later on, if the vehicle is intercepted and seized by the officer, it does not mean that such an owner has to wait till the trial is completed, for the purpose of getting an order of return of the vehicle from the Magistrate. In such cases, subject to a guarantee that the vehicle becomes available for the purpose of confiscation, if any, the Court has necessarily the jurisdiction to pass an order for interim custody either under S. 451 or S. 457(1) of the Criminal P.C. as the case may be. An order under S. 451 or S. 457(1) of the Criminal P.C. guarantees return of the vehicle at the time of the final hearing of the matter, or as and when called upon by the Court. It secures, subject to certain terms and conditions, the interim custody of the vehicle, pending the trial. In fact, the operation of S. 451 or S. 457(1) of the Criminal P.C. comes into existence only after the vehicle is seized and brought into safe custody, as provided under S. 55 of the Act. If that is so, it cannot be said that S. 451 or S. 457(1) of the Criminal P.C. is in any way inconsistent with the scheme of the Act.
11. Mr. Sabnis appearing for respondent No. 1 submitted that if two interpretations are possible in respect of any provision of law, particularly where it seeks to affect one's property or liberty, one depriving them altogether unreasonably, and the other ensuring them without defeating the object of law, the latter will have to be preferred to the former. He is right. The NDPS Act does not contemplate exclusion or extinction of an innocent owner's right. He has a right to be heard both under S. 60(3) and under S. 63 of the Act, with a further right of appeal under S. 63(3) of the Act. That must necessarily mean that in a deserving case he has a right to interim custody, which, in the absence of any provision under the Act, can only be granted by the exercise of powers either under S. 451 or under S. 457(1) of the Criminal P.C.
12. Mr. Gupte submitted that in any event, the learned Magistrate has no powers to pass such an order inasmuch as, it is Sessions Court which tries the matter, will have to pass the order. I am not prepared to accept this submission of Mr. Gupte. Section 52(2) as also S. 55 in terms refers to Magistrate before whom the persons arrested and articles seized shall be produced. Till the case is committed to the Court of Session, it is the Magistrate, who is in charge of such an article or vehicle, and it is for him to pass such orders as are appropriate under the law. In he present case, if the vehicle has not been brought before the learned Magistrate, perhaps, it could be said that S. 451 of the Criminal P.C. may not apply. But if one reads S. 55 of the NDPS Act, 1985, together with S. 457(1) Criminal P.C., it could be said that the Magistrate has jurisdiction to pass an order as he thinks fit in respect of custody and production of the property, pending the trial.
13. This takes me to the other question viz., that assuming the learned Magistrate had jurisdiction to pass an order under S. 451 or S. 457(1) Criminal P.C. whether the learned Magistrate could have passed an order in the facts and circumstances of this case, and if so, whether it could be interfered with in revision or otherwise.
14. As far as the present order is concerned, I am more than convinced that the learned Magistrate has decided the matter in an arbitrary manner inasmuch as the order does not disclose the arguments advanced on either side and there is no discussion about the documents produced before the learned Magistrate. Under S. 457(1) Criminal P.C. the learned Magistrate has a discretion to pass an order granting interim custody or to decline. But in either case, the discretion has to be exercised judicially, and not in a cavalier fashion. It is in this sense, the order deserves to be set aside. It is true that the present petition has been styled as criminal revision application. But I do find that the petitioner has sought to invoke the inherent jurisdiction of the Court under S. 482 Criminal P.C. In such circumstances the title of the petition becomes immaterial.
15. If the order has to be set aside the question is whether I should deal with the merits of the application. But I do find certain difficulty in going into the merits of the case as all facts are not on record. I, therefore, suggested to the advocates on either side, that the best course would be to have the order set aside and respondent No. 1 could prefer a separate application and the learned Judge concerned shall then deal with the matter on the merits of the case. Happily there has been a consensus on this.
16. I, therefore, pass the following order :
The impugned order dt. March 9, 1988 passed by the learned Magistrate is hereby set aside.
I give liberty to respondent 1 to prefer a separate application in the Court of Session where the case has been committed.
On such application being filed, it is open to the prosecution to file a proper affidavit and rely on such documents as they think proper.
The learned Sessions Judge will decide the matter on merits, after hearing both the parties.
Rule is made absolute accordingly.
17. Order accordingly.