Calcutta High Court (Appellete Side)
Ainul Haque vs The State Of West Bengal & Anr on 7 July, 2015
Author: R. K. Bag
Bench: R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice R. K. Bag.
CRR 1152 of 2015
Ainul Haque
V.
The State of West Bengal & Anr.
For the Petitioners : Mr. Deep Chaim Kabir,
Mr. Arnab Saha,
For the State : Mr. Ayan Basu,
Mr. Sanjoy Bardhan,
Heard on : 26.06.2015.
Judgement on : 07.07.2015
R. K. Bag, J.
The petitioner has challenged the order dated February 2, 2015 passed by Learned Judge, Special Court under NDPS Act, Berhampore, Murshidabad in NDPS Case No.270 of 2014 by filing this revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.
2. The backdrop of filing the revisional application is as follows: Md. Hafiz Alam, Sub-Inspector of Police, Jalangi Police Station filed one written complaint before the Officer-in-charge of Jalangi Police Station disclosing an offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter the NDPS Act). The police started Jalangi Police Station Case No.834 of 2014 dated 18.09.2014 on the basis of the said written complaint. The contents of the written complaint treated as FIR disclose that the accused Enamul Haque was transporting 5,000 ml. of codeine mixture by one motor cycle bearing no.WB58X-4487, when he was caught red-handed and the contraband articles and motor cycle were seized from his possession. The police submitted charge-sheet against the accused Enamul Haque on the allegation of committing offence under Section 21(c) of the NDPS Act. The present petitioner filed an application before the Court of Learned Judge, Special Court under NDPS Act, Berhampore, Murshidabad for return of the seized motor cycle bearing no.WB58X-4487 on the ground that the petitioner is the registered owner of the said motor cycle and that the petitioner had no knowledge about use of the said motor cycle by the accused person for carrying narcotic drug. Learned Judge of the trial court rejected the application of the petitioner for return of the seized motor cycle on the ground that the petitioner has failed to prove that the seized motor cycle was used by the accused person without the knowledge or connivance of the petitioner or his agent and that the petitioner had taken all reasonable precautions against the use of the said motor cycle by the accused person for carrying the contraband articles. The said order dated February 2, 2015 passed by Learned Judge of the Special Court is under challenge in the instant revision.
3. By referring to the provisions of Section 60 and Section 63 of the NDPS Act, Mr. Kabir, Learned Counsel for the petitioner contends that the seized motor cycle is liable to confiscation for transporting narcotic drug or psychotropic substance, unless the owner of the motor cycle proves that the motor cycle was used without his knowledge or connivance and that the owner of the motor cycle had taken all reasonable precautions against such use. Mr. Kabir further contends that the order of confiscation of the seized motor cycle can be passed by the trial court on conclusion of the trial when the accused is convicted or acquitted or discharged. According to Mr. Kabir, the confiscation of the conveyance seized for carrying narcotic drug or psychotropic substance cannot be done without hearing the person who has a right to claim the said conveyance on conclusion of trial and without recording of evidence by the trial court. Mr. Kabir argues that there is no provision in the NDPS Act for return of the seized vehicle during pendency of the inquiry or trial of the criminal case and as such the provisions of Section 451 or Section 457 of the Code of Criminal Procedure can be invoked for return of the seized vehicle during any inquiry or trial before the criminal court. Mr. Kabir has vehemently urged this court to consider that in the absence of any bar under the NDPS Act the interim custody of the seized vehicle can be given to the registered owner of the vehicle by invoking the provisions of Section 451 or Section 457 of the Code of Criminal Procedure, 1973. Mr. Kabir has relied on the decisions reported in (2002) 10 SCC 283, 1989 (2) Bom CR 209, (2011) 2 C Cr LR (Cal) 755 and (2006) 2 CHN 198 in support of his above contention.
4. Mr. Ayan Basu, Learned Counsel appearing on behalf of the opposite party State submits that the interim custody of the seized motor cycle can be given to the registered owner of the motor cycle under Section 451 or Section 457 of the Code of Criminal Procedure on fulfilment of the conditions laid down under Section 60(3) of the NDPS Act. According to Mr. Basu, for obtaining interim custody of the seized motor cycle, the petitioner will have to establish that the seized motor cycle was used by the accused person for transporting contraband articles without his knowledge or connivance and that the petitioner took reasonable precautions against such use.
5. Admittedly, on September 18, 2014 Jalangi Police Station Case No.834 of 2014 was started against the accused Enamul Haque on the allegation of transporting 5,000 ml. of codeine mixture by motor cycle bearing no.WB58X-4487 and the said contraband articles were recovered from the possession of the said accused person. It appears from the copy of certificate of registration (Annexure P2 to the revisional application) that the present petitioner is the registered owner of the seized motor cycle bearing no.WB58X-4487. There is no specific provision in the NDPS Act for return of the seized articles during inquiry or trial of the criminal case. However, Section 60(3) of the NDPS Act casts an obligation on the Court to confiscate the animal or conveyance used for carrying narcotic drug or psychotropic substance, which is as follows:
"60. Liability of illicit drugs, substances, plants, articles and conveyances 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) 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."
6. It is also relevant to quote the provisions of Section 63 of the NDPS Act which are as follows:
"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 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, as nearly as may be practicable, apply to the net proceeds of the sale."
7. On perusal of the above provisions of Section 60(3) and Section 63 of the NDPS Act, I find that the seized vehicle can be confiscated by the trial court on conclusion of the trial when the accused is convicted or acquitted or discharged. The Court must give opportunity of hearing to the person who may claim any right to the seized vehicle before confiscation of the seized vehicle. However, the seized vehicle is not liable to be confiscated if the owner of the seized vehicle can prove that the vehicle was used by the accused person without his knowledge or connivance and that he had taken all reasonable precautions against such use of the seized vehicle by the accused person. The above provisions can be invoked by the trial court at the time of passing the order whether seized vehicle is liable to confiscation on conclusion of trial and after conducting an inquiry to ascertain whether seized vehicle is to be returned to the registered owner or the same is liable to confiscation to the State. There is no specific bar under the provisions of the NDPS Act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance as an interim custody pending final disposal of the Criminal Case. In the absence of any specific bar under the NDPS Act the court can invoke the general provisions of Section 451 of Section 457 of the Code of Criminal Procedure for return of the seized article or vehicle pending final decision of the criminal case. The only 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.
8. In "Sunderbhai Ambalal Desai V. State of Gujarat" reported in (2002) 10 SCC 283 the Supreme Court has directed the criminal court to exercise the power under Section 451 of the Code of Criminal Procedure for return of the seized articles on some conditions pending final decision of the criminal case. With regard to the return of the seized vehicle during pendency of the criminal case the Supreme Court has observed as follows in paragraph 17 of the said judgement:
"17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations 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."
9. In "B. S. Rawant V. Shaikh Abdul Karim" reported in 1989(2) Bom CR 209 Learned Single Judge of the Bombay High Court held that the provisions of Section 451 or Section 457 of the Code of Criminal Procedure are not inconsistent with the provisions of the NDPS Act and as such the seized article or the seized vehicle may 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 article or vehicle is liable to be confiscated or to be returned to the rightful claimant. It is held by the Bombay High Court in the said decision that the vehicle seized for transporting narcotic drug or psychotropic substance can be returned to the registered owner as an interim custody on condition of production of the said vehicle before the trial court at the appropriate stage of the proceeding under Section 451 or Section 457 of the Code of Criminal Procedure.
10. In "Tridip Mitra V. State of West Bengal" reported in 2006(2) CHN 198 Learned Single Judge of our High Court also laid down that during pendency of the trial Learned Judge of the Special Court under NDPS Act has jurisdiction under Section 451 and Section 457 of the Code of Criminal Procedure to pass necessary order for return of the seized vehicle as an interim custody. It is relevant to quote paragraph 16 of the said judgement:
"16. The decision of the Supreme Court in Sunderbhai Ambalal Desai and decision of the Bombay High Court mentioned above clearly reveals that, provisions of Sections 41, 42, 43, 51, 53, 55, 60 and 63 of the NDPS Act do not exclude operation of Sections 451 and 457(1) of the Code. The decision of this Court in Asis Bose V. State of West Bengal (supra) and Sri Jiban Aich V. State of West Bengal (supra) concerning Forest Act reveals that vehicle used in transporting forest produce should not be released normally but can be released imposing certain conditions which will have deterrent effect on the owner and putting different conditions including condition that the said vehicle henceforth shall not be used in indulging similar type of offence in future.
Besides that, the general provisions laid down by the Supreme Court in Sunderbhai Ambalal Desai (supra) cannot be ignored as it was observed that the vehicles should not be kept in Court compound or thana compound for indefinite period till the conclusion of trial to allow the vehicles lose its value open to sky, sun and rain. The Supreme Court and this Court clearly laid down the consideration of the Court is production of the vehicle at the time of trial and also during confiscation proceeding if any confiscation proceeding is started at all and for securing that the said vehicle is not used in similar type of offence in future. If Government fiscal policy of fetching money by auction of vehicles after confiscation proceeding is considered then also it is desirable that the vehicles should be in good condition. A vehicle if kept at thana or Court compound open to sky for indefinite period would become scrap material within a year or two for want of maintenance. A scrap material cannot fetch such money which a good conditioned vehicle would fetch."
11. In "Rabi Ranjan Ojha V. The State of West Bengal" reported in (2011) 2 C Cr LR (Cal) 755 Learned Single Judge of our High Court interfered in the order of refusal to return the seized vehicle passed by Learned Judge of the Special Court. In this case the vehicle was seized for carrying narcotic drug, but the said seized vehicle was returned to the registered owner on furnishing bank guarantee of Rs.5,00,000/- on condition that the registered owner will produce the vehicle as and when called for by the court and the registered owner will not change the nature and character of the vehicle without the permission of the trial court.
12. In view of the above proposition of law laid down by the Supreme Court, Bombay High Court and our High Court, I do not find any merit in the submission made on behalf of the opposite party State that the seized motor cycle can be returned to the registered owner as an interim custody only on fulfilment of the conditions laid down under Section 60(3) of the NDPS Act. In my opinion, the seized motor cycle can be returned to the registered owner on furnishing bank guarantee and on conditions that the registered owner will produce the motor cycle before the trial court as and when called for and the owner will not change the nature and character of the said vehicle during pendency of the criminal case before the trial court.
13. As a result, the order dated February 2, 2015 passed by Learned Judge of the Special Court under NDPS Act, Berhampore, Murshidabad in NDPS Case No.270 of 2014 is hereby set aside. The seized motor cycle bearing no.WB58X-4487 is returned to the petitioner on furnishing bank guarantee of Rs.1,50,000/- before the trial court and on conditions that the petitioner shall not alienate the motor cycle or change the nature and character of the motor cycle during the pendency of the criminal case and that the petitioner will produce the motor cycle before the trial court as and when called for and that the petitioner must produce the motor cycle before the trial court on conclusion of trial to decide whether the motor cycle is liable to be confiscated or the same will be returned to the petitioner. The Criminal revision is, thus, disposed of.
Let a copy of this judgement and order be sent down to the trial court forthwith for favour of information and necessary action. The urgent photostat certified copy of the judgement and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R. K. Bag, J.)