Calcutta High Court (Appellete Side)
Shri Manish Malhotra vs The State Of West Bengal & Ors on 23 August, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
1 23.08.2018
. C.R.R. No. 1706 of 2018
rc. with
CRAN No. 1907 of 2018
In the matter of: Shri Manish Malhotra
...Petitioner.
-Versus
The State of West Bengal & Ors.
Mr. Arabinda Chatterjee
Mr. Pradyat Saha
Mr. Arkadipta Sengupta ...for the petitioner
Mr. S. Banerjee
Mr. Anjan Dutta ...for the Applicant
Mr. Arun Maity ....for the State
In this revisional application the petitioner has prayed for modification of the order dated 19.06.2018 passed in the procceedings being No. N-87/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 passed by the Court of the Learned Additional District and Sessions Judge, 6th Court, Barasat, North 24- Parganas in connection with Bongaon Police Station Case No. 309 dated 5th May, 2018 under Sections 21(c)/ 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and under Section 180 of the Motor Vehicles Act.
The background of this case is that the nature of operation of the business of the petitioner is primarily receiving orders and/or consignments from various concerns and to transport them to their respective destination and that he was not responsible for transportation of the goods being the narcotic drugs and psychotropic substance. The petitioner is a reputed establishment working in the field of transportation. M/s Prakash Road Transport Corporation has been the contracted shipper to erstwhile Hero Honda since September, 2006. Thereafter his 2 contract was carried on by Hero Moto Corp. after 2011, as Hero and Honda demerged in 2011.
In April, 2018 Hero Moto Corporation Ltd. entrusted the petitioner company being the nominated transporter of the said company for transportation of certain goods from Gurgaon (Haryana) to the plant of the consignee being HMCL Niloy Bangladesh Ltd. situated in Padmabilla, Shakharigati, Kotowali Jessore (Bengladesh) via petropole (India) to Benapole (Bangladesh) land port. The consignment consisted of 19 wooden boxes containing 7140 pieces of various components of Hero Motor Cycles being the export invoice no. 83906389 dated 24.04.2018 and integrated invoice no. 2G1882000116 dated 27th April, 2018 and the goods were checked and was loaded under the supervision of DGM (Exports), Hero Moto Corp. Ltd. in the truck being no. HR 38V-3486 on 27.04.2018.
The truck was hired from one Shri Avdesh Kumar of Subhash Colony, Faridabad for transporting the said goods to Bangladesh. While the goods were being transported from Gurgaon to Bangladesh. On 06.05.2018 the truck was apprehended by Bongaon Police Station on 04.05.2018 at Hospital Kalibari and infront of Balaka Samity and 900 liters of Phensedyl Cough Syrup containing Codeine Phosphate as one of its components in 30 sealed white coloured plastic covered big sacks were recovered and seized and the case under reference was started under Section 21(c)/29 of the Narcotic Drugs and Psychotropic Substance Act, 1985.
It is in that background the petitioner applied for return of the vehicle and the articles loaded thereon together with 19 boxes of the motocycle parts (hereinafter 3 referred to as the "said goods"). After the report was obtained from the Investigating Officer, the learned Special Judge-cum-Additional District and Sessions Judge, 6th Court, Barasat by his order dated 19.06.2018 allowed the petitioner's prayer for return of the same to the petitioner, Manish Malhotra as the interim custody of the said goods subject to the final judgment of the case on furnishing bond of Rs. 50,00,000/- only on condition that he may be the interim custodian of the said goods and that he shall not change the nature and character of the said goods and shall not transport the same to anyone without permission of the Court and shall produce the said goods before the Court as and when required by the Court till further order of the Court. The Learned Judge further directed the Investigating Officer to make inventory of all the items of the said goods and to give identity by serial number and to take photographs of those articles itemwise duly attested by him and also to be counter signed by the petitioner with further direction to produce one set of photographs before the learned Court.
Learned advocate for the petitioner invites my attention to the FIR which reveals that contraband goods being the 9000 bottles of Phensedyl Cough Syrup containing Codeine Phosphate as one of its components in 30 big while coloured big sacks were seized which were kept in the vehicles by the side of the said goods of Hero Motor Corps and by inviting my attention it is submitted that the said goods being sent in the said vehicle by its owner through the petitioner/transporter is no way conntected to the trafficking of the said drug.
However, matter is required to be heard at the time of trial but the fact that the said goods cannot be treated as a contraband goods under Narcotic Drugs and 4 Psychotropic Substances Act, 1985. At the best the vehicle which was responsible for transporting the Phensedyl Cough Syrup containing Codeine Phosphate as one of its components under Narcotic Drugs and Psychotropic Substances Act, 1985 may be treated as offending vehicle at the trial if it is found that the vehicle is involved in such trafficking along with other consignments.
Learned advocate for the State submits that he has no objection to return of the said goods to its original owner but the owner itself has to apply for such prayer before the trial court. The owner Hero Motor Corp. has made a rejoinder to this application and learned advocate appearing for Hero Motor Corp. also submits that the goods may be returned to its owner and the order impugned may be modified to that extent that such motor parts may not be required to be produced at the trial before the Court for the purpose of considering the case of seizure of Phensedyl Cough Syrup containing Codeine Phosphate as one of its components under the provision of Section 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has relied on a decision in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 290 wherein the Hon'ble Supreme Court was of the view that direction are not required to be given in a matter where the dispute is not involved in the alleged incident and at the best article's photographs after inventory can be had to be produced before the Court for the collateral purpose to show that while the consignment of the said goods were transported by the vehicle in question, the Phensedyl Cough Syrup containing Codeine Phosphate as one of its components were recovered and seized from the 5 said vehicle on being intercepted by the police authorities of Bangaon Police Station.
Having regard to the submission of the learned advocate for the Opposite Party and the State and finding no objection for the return of the said goods, I am of the view, that the order no. 96/2018 passed in N-87/18 by the learned Additional District and Sessions Judge, 6th Court, Barasat, North 24-Parganas be modified only to this effect that the said goods (19 wooden boxes of motor parts of Hero Motor Corpn.) be returned for the transportation for its consignment to the consignee under the agreement by the proprietor of Hero Motor Corpn. on similar condition of furnishing bond of Rs. 50,00,000/- with the rider that at least one motor parts be kept under custody of the person receiving which may be produced as one of the item as and when called for to do so before the learned Trial Court and rest be allowed to be utilised by the consignee and photographs after inventory has to be taken by the Investigating Officer and copy of which has to be submitted before the Trial Court.
With the above observation and modification this reivisional application being CRR No. 1706 of 2018 along with CRAN No. 1907 of 2018 are disposed of.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Shivakant Prasad, J.)