Rohit Through Power Of Attorney Holder ... vs The State Of Madhya Pradesh on 3 December, 2020

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Madhya Pradesh High Court

Rohit Through Power Of Attorney Holder ... vs The State Of Madhya Pradesh on 3 December, 2020

This is an application under Section 397 read with 401 Cr.P.C. taking exception to the impugned order dated 6.2.2020. The trial Court has rejected the application filed under Section 451 and 457 Cr.P.C.

2) Facts relevant and necessary for disposal of the revision petition are in narrow compass; On receipt of secret information the raid party had checked a Ashok Leyland goods carrier with registration No.PB-08-DG-2312 at Dewas Naka, Indore. During search 185.050 Kg.of Cannabis (Ganja) were found kept in the vehicle and transported unauthorizedly and illegally. Accordingly, Crime Case No.5/2019 has been registered under Section 8/20(b)(ii)

(c)/29 and 27-A of Narcotic Drugs & Psychotropic Substances Act (hereinafter called as "NDPS Act"). The challan has been put up and the trial is pending before Special Court designated under Section 36 of NDPS Act.

3) The trial Court has rejected the application for Supurdginama in view of Central Government Notification on 16.1.2015 in exercise of powers under Section 52-A of NDPS Act, whereunder procedure has been prescribed for manner of disposal of narcotic drugs, psychotropic substances, controlled substances and conveyances after completion of the procedure prescribed under sub-section (3) of Section 52-A of NDPS Act.

Section 52(1), (2) and (3) are quoted below :-

"52A. Disposal of seized narcotic drugs and psychotropic substances.-

(1) The Central Government may, having regard to the hazardous nature, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other 2 Cr.R.No.1765/2020 (Rohit Vs. State of M.P.through P.S.Narcotics (NCB), Indore) relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub -section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of --

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or 3 Cr.R.No.1765/2020 (Rohit Vs. State of M.P.through P.S.Narcotics (NCB), Indore)

(c) allowing to draw representative sample of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-

section (2), the Magistrate shall, as soon as may be, allow the application."

4) Shri Baheti, learned counsel for the applicant submits that the trial Court has committed grave illegality having refused to exercise jurisdiction otherwise conferred upon it under Section 451 read with Section 457 of Cr.P.C. Mere issuance of Notification by Central Government under Section 52-A of NDPS Act or certification by Magistrate under sub-Section 3 of Section 52-A of NDPS Act does not denude the Magistrate of powers under Section 451 read with 457 Cr.P.C. to deal with the application for release of the seized vehicle on Supurdginama. Moreso, till date neither the disposal committee so constituted has initiated action for pre-trial disposal of the conveyance, nor proceedings for confiscation of seized vehicle has started as contemplated under Section 63 of NDPS Act.

Learned counsel further submits that provisions of Cr.P.C. are applicable for trial of offences under the NDPS Act in terms of Section 36(c) and Section 51 of NDPS Act. Hence, Section 451 and 457 of Cr.P.C. are applicable in the instant case as well.

It is submitted that the seized vehicle is standing under open sky since 14.10.2019. The condition of the vehicle is deteriorated day-by-day. Hence, prays for release of the vehicle on Supurdginama till disposal of the pending Sessions Trial No.5/2019 on such terms and conditions this Court deems fit and proper. Learned counsel relies upon various judgments of Supreme Court in the matter of State of Karnataka Vs. K.Krishnan, AIR 2000 SC 2729; State of Karnataka Vs. K.A.Kunchindammed, (2002) 9 SCC 90; Sunderbhai Ambalal Desai Vs. State of Gujrat, (2002) 10 SCC 4 Cr.R.No.1765/2020 (Rohit Vs. State of M.P.through P.S.Narcotics (NCB), Indore) 283; Manoj Kumar Pandey Vs. State of M.P., (2019) SCC Online MP 2315; Manoj Kumar Sharma Vs. State of Chattisgarh, 2015 SCC Online Chh 1132; Ainul Haque Vs. The State of West Bengal & Anr., 2015 SCC Online Cal 1612; Gurbinder Singh @ Shinder Vs. State of Punjab, 2016 SCC Online P&H 3616; Harshvardhan Pandey Vs. The State of M.P., 215 SCC Online MP 5710; Union of India Vs. Mohanlal and another, (2016) 3 SCC 379; Sevaksingh Vs. State of M.P., 2019 SCC Online MP 2867 and Asiam Khan Vs. State of M.P., 2019 SCC Online MP 393 to bolster his submissions.

5) Shri Soni, learned counsel for the respondent/State submits that the impugned order is impregnable in nature as in view of the constitution of disposal committee by virtue of Notification issued by the Central Government in exercise of powers under Section 52-A of NDPS Act, the trial Court has no jurisdiction to consider the application for release of the seized vehicle on Supurdginama. However, learned counsel fairly submits that till date pre-trial disposal proceedings by the said committee has not been started. Learned counsel also fairly submits that no confiscation proceedings have been initiated as provided for under Section 63 of NDPS Act.

However, learned counsel submits that once the trial Court has no jurisdiction to exercise the powers under Section 451, 457 of Cr.P.C., no illegality has been committed by the trial Court while rejecting the application.

6) Before adverting to the rival contentions it is expedient to refer to the relevant provisions of the NDPS Act. Section 52-A has been amended by Act 16 of 2014 dated 30.4.2014 sub-Section (1) has been substituted. Word conveyance has been included and likewise under sub-Section 2, sub-Section 3 and sub-Section 4 word conveyance finds place. As such the provisions for disposal of seized narcotic drug and psychotropic substance under Section 52-A 5 Cr.R.No.1765/2020 (Rohit Vs. State of M.P.through P.S.Narcotics (NCB), Indore) of NDPS Act also includes conveyance. As pointed out earlier Central Government has issued Notification dated 16.1.2015 and constituted a disposal committee.

7) Section 63 of NDPS Act deals with procedure in making confiscation and inter alia by way of proviso to sub-Section (2) of Section 63 of NDPS Act contemplates that no order of confiscation of 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 produces in respect of his claim. Therefore, before conveyance/seized vehicle is subject to confiscation, the applicant is entitled for hearing.

8) In contradistinction to aforesaid provision the Notification constituting pre-trial disposal committee does not contemplate adjudicative process particularly in the context of conveyance or opportunity to person either claiming to be the owner or in rightful possession of the vehicle at the relevant time before the conveyance is put to disposal. Hence, action by disposal committee for disposal in the context of conveyance as a matter of fact violates principles of natural justice and the power so conferred upon the said committee is contrary to spirit of rule of law; the bedrock of our Constitution, and in fact antithesis of concept of equality as enshrined under Articles 14 , 21 and 19-G of the Constitution of India.

9) This Court cannot loose sight of the fact that by virtue of Section 36(c) provisions of Cr.P.C. are applicable in general and in view of Section 51 of NDPS Act the provisions thereof are applicable in the matter of warrant, arrest, search and seizure in addition with the provisions of NDPS Act. There is no exclusion of general power of release of vehicle on Supurdginama conferred on Magistrate under Section 451 read with Section 457 of Cr.P.C. under the NDPS Act. Hence, in the considered opinion of this Court upon harmonious reading of the provisions of Sections 36, 51, 52-A and 63 of NDPS Act, the powers under Section 451 and 457 of Cr.P.C. are available 6 Cr.R.No.1765/2020 (Rohit Vs. State of M.P.through P.S.Narcotics (NCB), Indore) with the Magistrate for release of the vehicle on Supurdginama, however, subject to confiscation proceedings as contemplated under Section 63 of NDPS Act or pending trial.

10) Consequently, the criminal revision is allowed and the impugned order dated 6.2.2020 is set aside. The trial Court is directed to consider the application for release of the vehicle No.PB- 08-DG-2312 under Section 451, 457 of Cr.P.C. and in the backdrop of the order passed today.

11) Before parting with the case it is considered apposite to observe that the trial Court shall decide the application expeditiously regard being had to the fact that vehicle is stranded at Police Station since 14.10.2019 and during Covid-19 trial of the case has not been commenced as informed by learned counsel for the parties. Let the aforesaid exercise be completed within thirty days.

The criminal revision stands disposed of.

(Rohit Arya) Judge Patil Digitally signed by Shailesh Patil Date: 2020.12.04 18:41:42 +05'30'

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Madhya Pradesh High Court