Jagwat Prasad vs Delhi Administration
1992 Latest Caselaw 384 Del

JUDGMENT

Usha Mehra, J.

(1) The petitioner, Jagwat Prashad has been challaned under Section 21/25/61/85, of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the 'Act'). The prosecution case is that on 30th August, 1991, the house of the petitioner was raided. The petitioner was present along with his family members. In one of the rooms situated at 1046, Lal Kuan, Main Bazar (IInd floor), Delhi a double bed was lying. A dirty pillow with cover was lying on the said double bed. The said pillow along with the cover was checked and a 'Khakhi envelope' was found on which in Hindi and English "Punjab National Bank, Sansad Marg, New Delhi" was printed. On checking of the same six packets of currency notes were found out of which five packets were of the denomination of Rs.100.00 each and some loose currency notes of Rs.100/ - were found total of which came to Rs.55,000.00 .' From the said cover a plastic bag containing 50 grams of Heroin was also recovered. Since the currency notes were lying in the same pillow cover where from the heroin was recovered, therefore, the raiding party seized the amount of Rs.55,000.00 treating it to be the sale proceed of drug.

(2) It is against this seizure of Rs.55.000.00 that the petitioner moved an application before the learned Additional Sessions Judge asking for the release of the same on the ground that this amount was his personal money which he had collected from various sources namely: I)Rs.30,000.00 was paid to him by Shri Rajesh Bhatt in connection with the deal in which a room on rent was handed over to him and, ii) Rs.l5,000.00 was recovered on account of the sale of scooter No.DL-IS-6998. This scooter was sold by the son of the petitioner Sunil Kumar on 15th August, 1991 to Shri Abdul Wahid. The remaining amount of Rs.10,000.00 was lying in cash in the house of the petitioner as the money was required for the purposes of marriage of his youngest daughter.

(3) Along with the application he filed an affidavit of Mr. Rajesh Bhatt as well as copy of form under Section 29 to show the sale of the scooter. It was his contention that since the money was his personal property, it could not have been seized. He is entitled for the refund of the same. This application was contested by the State on the ground that there 'was a presumption that this amount must be the sale proceeds of the drug sold by the petitioner because this amount was also lying in the same pillow cover where from the herein in question was recovered. On the basis of this presumption the amount was seized. The seizure amount therefore, cannot be returned. The learned Additional Sessions Judge relying on this, rejected the application.

(4) Mr. Grover appearing for the petitioner contended that Chapter V of the N.D.P.S. Act deals with the procedure with regard to power of entry, search, seizure and arrest and also the confiscation of the goods and the sale proceeds. Chapter V-A of the said Act deals with the applicability of the Provisions of this Chapter to the persons mentioned in Sub Section 2 of 68A. He, therefore, contended that there is no material whatsoever on record to establish even prima facie that the amount of Rs.55,000.00 was the sale proceeds of any drug by the petitioner. He has drawn my attention to the provision of Section 62 of the said Act which reads as under:- SECTION 62:- "Confiscation of sale proceeds of illicit drugs of or substances;- Where any narcotic drug or psychotropic substance is sold by a person having knowledge or reason to believe that the drug or substance is liable to confiscation under this Act, the sale proceeds thereof shall also be liable to confiscation."

(5) Reading the above section makes it clear that it is only the sale proceeds of illicit drug which can be confiscated and even for that prosecution has to prima facie prove that the said substance was sold by the petitioner or had knowledge that this amount was the price of that substance. In the instant case that is not what prosecution says. Prosecution is basing its case on surmises and presumptions. Hence the provisions of Section 62 are not applicable to the facts of this case. Section 63 of the said Act deals with the procedure in making confiscation. It reads as under:- Sub Section(l) of Section 63: -"Procedure in making confiscations:- 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 confiscations under Section 60 or 61 or Section 62 and. if it decides that the article is so liable, it may order confiscation accordingly."

(6) No doubt this section provides that whether the accused is convicted or acquitted or discharged still the Court has the power to confiscate provided the matter falls under Section 60, 61 or 62 of the said Act. In the facts and circumstances of this case it is to be seen whether the case of the petitioner is covered either under Section 60, 61 or 62 and if not why should his money be not returned. Counsel for the State admits that the case is not covered under Section 60 or 61 but contended that this case is covered under Section 62. I am afraid, I am not in agreement with the contention of the learned counsel for the State because the bare reading of Section 62 makes it clear that the prosecution has to have a prima facie evidence to link this amount with the sale proceeds of any drug. Merely because the amount of Rs.55,000.00 was lying at the same place wherever 50 grams, of heroin was recovered, to my mind, would not show that it was the amount of a sale of any drug. On the contrary petitioner has prima facie Filed evidence indicating that this amount he collected and saved for the marriage of his youngest daughter. Prosecution ought to have verified this fact of loan and sale of scooter. In response to the petitioner's application before learned A.C.M.M., the defense taken was that this amount must have been earned by selling heroin because the accused has no other source of income. He was trading in heroin and since the amount and the heroin was recovered from the same place, therefore, presumption should be drawn that it was from the sale of the drug. This reply does not indicate that the prosecution is sure that the amount of Rs.55,000.00 was the sale proceeds of any drug or subsistence as required under section 62 of the said Act. Mr. Grover further contended that the provision of Section 68A would apply to the facts of this case. I think this contention of Mr. Grover cannot be accepted. It is not only when the case is finally determined and the person is held guilty that the Court would have the jurisdiction to confiscate the article or the drug as the case may be. In fact Section 63 gives ample power to the Court to confiscate any article or things seized under this Act irrespective of the fact whether the accused is convicted, acquitted or discharged. The question for determination at the moment is not whether the amount of Rs. 55,000.00 can be confiscated at this stage or not but whether this amount of Rs.55,000.00 is the sale proceeds of the drug or the petitioner had the knowledge?

(7) In the absence of any material having come on record at this stage to prima facie link this amount with the sale proceeds, it will be in the interest of Justice and fairplay if this amount is refunded to the petitioner subject to the terms which may be imposed by the trial court.

(8) With these observations, the petition stands disposed of.