Calcutta High Court (Appellete Side)

Milan Mondal vs State Of West Bengal on 26 April, 2022

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Bivas Pattanayak

C.R.A. No. 201 of 2021 with CRAN 1 of 2021

Milan Mondal Vs.

                             State of West Bengal


For the Appellant        :       Mr. Soubhik Mitter, Adv.
                                 Mr. Ranadeb Sengupta, Adv.
                                 Mr. Sachit Talukder, Adv.

For the State            :       Mr. Sanjoy Bardhan, Adv.
                                 Mr. Pratick Bose, Adv.
                                 Ms. Baishakhi Chatterjee, Adv.

Heard on                :        28.02.2022, 05.04.2022,
                                 19.04.2022 & 26.04.2022

Judgment on              :       26.04.2022


Joymalya Bagchi, J. :-

Order of confiscation of vehicle dated 10.03.2021 is the subject

matter of challenge in the appeal.

Short factual compass giving rise to the appeal is to the effect that

a purported seizure of narcotic substance i.e. 24 kgs. of Ganja was

made from a white colour Hundai car bearing registration No. WB 30S

9966. The search had been conducted on 19.06.2019 between 20 hours

to 22 hours. The appellant who is the owner of the vehicle was arrested

and prosecuted for possession of the aforesaid narcotic substance

under Section 20(b)(ii)(c) of the NDPS Act.

Prosecution examined eight witnesses. Upon analysis of the

evidence on record the trial Court by the impugned judgment and order

dated 10.03.2021 recorded an order of acquittal against the appellant,

inter alia, on the following grounds :

(a) non-compliance of Section 42 and 50 of the NDPS Act;

(b)sample sent for chemical examination did not match with the

sample which was drawn from the seized consignment;

However, by the selfsame judgment and order, without giving an

opportunity of hearing to the appellant, the trial Court proceeded to

confiscate the vehicle in question under Section 60(3) of the NDPS Act.

Mr. Mitter, learned Counsel with Mr. Sengupta, learned Counsel

appearing for the appellant submit no opportunity was given to the

appellant in terms of proviso of sub section (2) of Section 63 of the

NDPS Act prior to confiscation. It is also argued in view of the reasons

recorded in the order of acquittal, it cannot be said that the seized

consignment contained narcotic substance i.e. Ganja. Hence, order of

confiscation is liable to be set aside.

In reply, Mr. Bardhan, learned Counsel appearing for the State

submits that the appellant had sufficient notice with regard to

confiscation as charge under Section 20(b)(ii)(c) of the NDPS Act had

been framed against him. It is further argued acquittal of the appellant

was on technical grounds, i.e. non-compliance of procedures relating to

seizure and not an honourable one. Hence, confiscation proceeding was

justified and order of confiscation ought not to be interfered with.

For better appreciation of the aforesaid submissions Sections 60

and 63 of the NDPS Act require to be considered :

"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation - (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.

(2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported interstate, exported interstate, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any narcotic drug or psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation

(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substances, 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 confiscation - (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 it sale would be for the benefit of its owner, it may at any time direct it to be sold; and he provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale."

A conjoint reading of the aforesaid provisions would show that a

court upon passing an order of conviction or acquittal or discharge is

empowered to take appropriate decision whether any conveyance used

for carrying narcotic substance and seized under the provisions of the

Act is liable to be confiscated or not. Sub section (2) of the Section 63

lays down the procedure for confiscation. In the event the person who

has committed the offence is not known or cannot be found, the Court

may enter into an ex-parte enquiry and decide the issue of confiscation.

However, if the person who has any right in respect of the

vehicle/article which is liable to be confiscated is known, he must be

given an opportunity of hearing in the matter including leading evidence

in support of his claim. In the course of such enquiry the owner is

entitled to establish (particularly in a case of acquittal) the vehicle was

not used to carry narcotic drugs or its usage was without his knowledge

or connivance. In the present case, appellant is the owner of the vehicle

and has been acquitted of the charge under section 20(b)(ii)(c) of the

NDPS Act regarding possession/transportation of narcotic in the said

vehicle. However, no notice was given to the appellant calling upon him

to show cause why the vehicle would not be confiscated.

Framing of charge against the appellant cannot be treated to be

sufficient notice with regard to confiscation when he has been acquitted

of such charge. No doubt, in spite of acquittal, Court has power in

apposite to confiscate vehicle/conveyance used for transportation of

narcotic substance. But in such cases a duty is cast upon the Court to

issue notice upon the appellant (if he is the owner/ person in charge of

the vehicle) to show cause why the vehicle would not be confiscated. In

the present case, no notice was issued upon the appellant who is the

owner of the vehicle to show cause why his vehicle shall not be

confiscated. Failure to issue notice upon the appellant and give him an

opportunity of hearing prior to passing the impugned order of

confiscation is a partial breach of principles of natural justice which

vitiates the order of confiscation. Ordinarily, under such circumstances,

this Court would have been inclined to remand the matter for fresh

consideration on merits. However, upon examining the grounds of

acquittal, we note there is a clear snap in the link between the sample

which was collected from the seized consignment and one which had

been sent for examination by chemical examiner. It may be apposite to

refer the finding of the learned trial Judge in that regard which reads as

follows :

"Admittedly, from Exhibit-A, 100 grams of sample was taken from 24 kilograms of ganja for chemical examination as Exhibit-A1 but Chemical examiner report reveals that there was Exhibit-A2 instead of A1."

From the aforesaid finding it is clear while Exhibit-A1 was drawn

as a sample from the seized consignment, i.e. Exhibit-A, another sample

being Exhibit-A2 was sent for chemical examination. Nothing is

forthcoming to show that the sample which had been sent for chemical

examination, i.e., Exhibit-A2 had been drawn from the mother

consignment. This breach in the link between the sample drawn from

the seized consignment and the sample which was sent for chemical

examination strikes a death blow to the prosecution case that the

consignment seized from the vehicle contained narcotic substance, i.e.,

ganja.

As the evidence on record is not sufficient to establish the

consignment carried in the vehicle contained ganja, I am of the view no