Order vs Airport Police Station
2022 Latest Caselaw 2722 AP

          HON'BLE Mr. JUSTICE K.SREENIVASA REDDY

            CRIMINAL REVISION CASE No.423 OF 2022

ORDER:

This Criminal Revision Case has been filed seeking

interim custody of the vehicle (AUDI Car) bearing registration

No.AP 31 CW 4518.

2. The facts of the case are that a case has been

registered against the petitioner/A1 in crime No.49 of 2022 of

Airport Police Station, Visakhapatnam, for the offence

punishable under Sections 22(a)(c) read with Section 29(1)

and 8(c) of the Narcotic Drugs And Psychotropic Substances,

Act, 1985 (for short 'the NDPS Act'). During investigation, the

investigating agency seized the subject vehicle and since then,

the same has been lying in the police station. The petitioner

has filed Crl.M.P.No.272 of 2022 on the file of the Court of the

Metropolitan Sessions Judge-Cum- I Additional District &

Sessions Judge-Special Judge for trial of offences under the

NDPS Act, Visakhapatnam, seeking release of the subject

vehicle and two mobiles. By an Order dated 24.05.2022, the

learned Sessions Judge while allowing the petition in part

ordered interim custody of the two mobile phones and

dismissed the petition in respect of interim custody of the

subject vehicle on the ground that in Union of India V.

Dinesh Kumar Verma1, the Hon'ble Apex Court held that the

vehicle used for conveyance of the Narcotic Drug has to be

.[2005(9) SCC 330]

confiscated to the State and hence, the petitioner is not

entitled for interim custody of the subject vehicle.

3. Heard the counsel for the petitioner and the learned

Additional Public Prosecutor for respondent-State.

4. Learned counsel for the petitioner submits that the

subject vehicle was seized by the Airport Police and if it is

kept idle exposing to sun, it is likely to be damaged and

rendered useless. He further submitted that pursuant to the

Judgment relied upon by the Court below, time and again, in

similar facts and circumstances of the case, this Court

passed orders granting interim custody of the vehicles seized

by the police. He referred to the order dated 30.11.2020 in

Crl.R.C.No.436 of 2020 wherein this Court while dealing with

Sections 60 and 63 of the NDPS Act, quoted the decision of

the Division Bench of Punjab and Haryana High in Gurbinder

Singh and another V. State of Punjab [2016(4) RCR (Criminal)

492] Court and the relevant paragraph is extracted hereunder:

"On a careful perusal of the above observation made by the Hon'ble Supreme Court, we find that no distinction was made between the vehicles seized under the Scheme of Cr.P.C. and the vehicles seized under the NDPS Act. In the special facts and circumstances of that case, the Hon'ble Supreme Court came to a conclusion that the High Court was not justified in releasing the vehicle. The Hon'ble Supreme Court has not laid For Subsequent orders see CRM-23019-2016 12 of 14 down in the above judgement that the vehicle seized under the NDPS Act is not to be released on sapurdari. There was also no specific observation that the vehicles seized under the NDPS Act will have to be treated separately while considering

the plea for interim custody thereof. Therefore, the above observation made by Hon'ble Supreme Court cannot be cited for rejecting the plea for release of the vehicle seized under the NDPS Act on sapurdari. In Tarsem Singh's case (supra), a totally different issue as to whether a Sub Divisional Judicial Magistrate who was not the Special Judge conferred with the power to try the case under the NDPS Act could pass an order releasing the vehicle on sapurdari had arisen for determination. In the aforesaid case, the Division Bench of this Court has not made any observation that the trial Judge empowered to try the case under the NDPS Act has no authority to release the vehicle for interim custody on sapurdari. Nor was any decision taken in the said case that the vehicle seized under the NDPS Act cannot at all be released on sapurdari."

5. Sections 60(3) and 63 of the NDPS Act have

relevance to the issue involved in this case for determination

and it reads thus:

"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.--

(1) xxxx (2) Xxxx (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 2[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.

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, 1[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.

6. This Court also has meticulously gone through the

provisions of the Act. There is absolutely nothing in the

scheme of the Act, which imposes a bar on the Court to order

for interim custody of the vehicle which was seized in a case

registered under the NDPS Act. Section 63 of the NDPS Act

deals with confiscation of the vehicle that was seized in

connection with the crime registered under the NDPS Act. A

bare perusal of the said provision of the Section makes it

abundantly clear that the vehicle, which was seized in

connection with the crime registered under the NDPS Act, is

liable for seizure only at the time of convicting the accused or

acquitting the accused or discharging the accused and at that

stage, the Court shall decide whether the vehicle is liable for

confiscation or not. But, it does not mean that the owner of

the vehicle is not entitled for interim custody of the vehicle till

the disposal of the said case in the trial Court.

7. It is well settled law that keeping the vehicle idle at

the police station or at the Court after seizure of the same till

the trial of the case ends, which may take some time, may

also result into damage to the vehicle on account of its non-

use for a long time and exposure to sun. Therefore, it is

justified that interim custody of the vehicle has to be given to

the owner of the vehicle by imposing certain conditions to

ensure its production at any time during trial of the said case

before the trial Court.

8. Having regard to the facts and circumstances of the

case, the impugned order warrants interference.

9. In the result, the Criminal Revision Case is allowed

setting aside the order dated 24.05.2022 passed in

Crl.M.P.No.272 of 2022 on the file of the Court of

Metropolitan Sessions Judge-Cum- I Additional District &

Sessions Judge-Special Judge for trial of offences under the

NDPS Act, Visakhapatnam. The police are directed to give

interim custody of the vehicle (AUDI Car) bearing registration

No.AP 31 CW 4518 to the petitioner on proper identification

and acknowledgment.

i) Further, the petitioner shall give an affidavit before

the trial Court giving an undertaking that he will

produce the vehicle as and when directed by the trial

Court till the trial of the case ends and that he will not

alienate the said vehicle and make any changes relating

to the physical features of the said vehicle and that he

will not create any encumbrance or charge over the said

vehicle.

ii) Further, the petitioner shall execute a self bond for

Rs.2,00,000/- (Rupees two lakhs only) with two solvent

sureties for like sum each to the satisfaction of the

learned trial Judge.

10. Miscellaneous pending if any, shall stand closed.

_______________________________ JUSTICE K.SREENIVASA REDDY 24.06.2022 Mjl/*

HON'BLE Mr. JUSTICE K.SREENIVASA REDDY

CRIMINAL REVISION CASE No.423 OF 2022

24.06.2022 Mjl/*