Delhi High Court
Directorate Of Revenue ... vs Amit Kumar on 22 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. 5320/2013 & CRL.M.A. No. 19204/2013
% Date of Decision: 22 November, 2016
DIRECTORATE OF REVENUE INTELLIGENCE ..... Petitioner
Through: Mr. Amish Aggarwala and Mr. Satish
Aggarwala, Advocates.
versus
AMIT KUMAR ..... Respondent
Through: Mr. S. S. Das, Advocate.
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
I.S. MEHTA, J.
1. Instant petition is arising out of the impugned order passed by the
learned Special Judge, NDPS cases, Saket, New Delhi, dated
12.12.2013 qua against the present petitioner, i.e., Directorate of
Revenue Intelligence( DRI), who preferred to file the present petition
under Section 482 of the Code of Criminal Procedure for setting
aside/quashing of the aforesaid impugned order.
2. The brief facts stated are that, on the basis of the secret information,
the petitioner's, i.e., Directorate of Revenue Intelligence(DRI),
officers had effected a seizure of 272.800 Kg of contraband
substance from a three wheeler luggage carrier bearing registration
No. DL 1LN 7074 which was driven by one Bablu Ram and co-
passenger Anil Kumar. The said seized contraband substance was
found having presence of Methaqualone.
3. Subsequently, during the interrogation it was revealed by Anil
Kumar that the contraband substance was handed over to him by one
Parmanand @ Manu Khosla. Consequently, Manu Khosla's premises
was searched out by the DRI officers and a further recovery of
33.450 Kg of similar substance was effected. Pursuant to the
disclosures made by him a further recovery of 951.350 Kg of the
similar substance was effected from a vehicle make Toyota Fortuner
bearing registration No. DL 13CA 1800, belonging to the present
respondent, i.e., Amit Kumar. The aforesaid vehicle is stated to be
registered in the name of a company named M/s Scilla
Biotechnologies Limited, of which the present respondent is stated to
be the Director. The present respondent, i.e., Amit Kumar, along
with Anil Kumar and Manu Khosla were subsequently arrested in
this case under the NDPS Act as they all were found to be dealing in
contraband substances. However, during the interrogation it was
found that Bablu Ram was only a driver of the three wheeler luggage
carrier bearing registration No. DL 1LN 7074 and was not personally
involved in the commission of the offence. Therefore, he was not
made a party to the seized contraband substance.
4. The petitioner, i.e., DRI, had drawn 39 samples out of the aforesaid
seized substances, but none of the samples were tested positive for
Methaqualone during the testing carried out in CRCL Delhi and only
Ketamine Hydrochloride was detected in 30 out of the 39 samples
and the remaining 9 samples were advised to be sent to CFSL
Hyderabad for their characterization. Subsequently, Manu Khosla
and the present respondent, i.e., Amit Kumar, were released on bail
by the lower Court vide order dated 20.07.2013.
5. Thereafter, the respondent moved an application dated 20.11.2013
seeking release of his vehicle make Toyota Fortuner bearing
registration No. DL 13CA 1800 before the lower Court. The lower
Court after perusal of the application as well as the reply thereto filed
by the petitioner and hearing the arguments advanced by the
counsels for the parties passed the impugned order dated 12.12.2013
directing that the vehicle make Toyota Fortuner bearing registration
No. DL 13CA 1800 be released to the respondent on superdari
subject to certain conditions which is reproduced as under:
"1. that he shall furnish a superdaginama in the sum
of Rs Ten lacs to the satisfaction of this court;
2. that he will not change the colour etc. of the above
vehicle and will also not sell, transfer, above said vehicle
without the prior permission of this court;
3. that he will produce the above said vehicle as and
when directed by this court."
6. Aggrieved from the aforesaid impugned order dated 12.12.2013, the
petitioner has preferred this petition seeking setting aside/quashing
of the impugned order dated 12.12.2013.
Hence the present petition.
7. The learned counsel for the petitioner has submitted that the order
passed by the learned Special Judge, NDPS cases, Saket, New Delhi,
is bad in law as well as on facts. The learned Special Judge had no
jurisdiction to entertain and dispose of the application and the order
of release of the vehicle is without jurisdiction.
8. The learned counsel for the petitioner has further submitted that the
learned Special Judge failed to appreciate that the vehicle had been
used for storage of contraband substances and has, therefore, been
seized as per the provisions of the NDPS Act, 1985. The NDPS Act
being a special Act overrides the general law under the Criminal
Procedure Code and there is no power conferred upon the special
Court for release of the vehicle on superdari under the NDPS Act.
9. The learned counsel for the petitioner has further submitted that this
is not a case where a complaint has been filed before the learned
Special Judge for him to exercise jurisdiction over the property
seized in the case. The learned Special Judge erred in holding that
the vehicle is not required for any purpose by the petitioner "at this
stage" as reports in respect of 10 samples are awaited from CFSL
Hyderabad. Further the investigation in the case is pending and the
vehicle may be required for further investigation. The order of
release of the vehicle may interfere in further investigation and it is
not within the province of the lower Court to decide the matter in
which investigation is being conducted or determined whether or not
the vehicle would be needed for further investigation.
10. The learned counsel for the petitioner in support of his arguments has
placed reliance on the following judgments:
1) Manu Khosla vs. Directorate of Revenue Intelligence, SLP
Crl No. 9593/2014.
2) Ganga Hire Purchase Pvt. Ltd. vs. State of Punjab and Ors.,
AIR 2000 SC 449.
3) Narender Kaur vs. Arun Sheoran, I.O., Narcotics Control
Bureau, MANU/DE/0512/2000.
4) Directorate of Revenue Intelligence vs. Anil
Kumar,MANU/DE/2419/2014.
5) Assistant Collector of Customs House, Indraprastha Estate,
New Delhi vs. Tilak Raj Shiv Dayal, Dehradun,
MANU/DE/0052/1969.
6) Randhir Singh and Ors. vs. Director of Intelligence,
MANU/DE/0283/1985.
7) Tarlok Singh vs. The Suprintendent of Customs and Anr.,
MANU/DE/0231/1978.
8) Kirta Ram vs. State of Rajasthan, MANU/RH/0750/2007.
11. On the other hand, the learned counsel for the respondent has
submitted that the Court below has rightly appreciated the facts on
record and the impugned order is just and proper, and the same
requires no interference. He further submits that the present petition
is without merit and is baseless and may be dismissed.
12. The learned counsel for the respondent has placed reliance on the
following judgments in support of his contentions:
1) Sunderbhai Ambalal Desai vs. State of Gujarat, SLP Crl No.
2725/2002.
2) Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (9)
SCALE.
3) Madan Lal vs. State, NCT of Delhi[Delhi], Delhi 2002 (1)
JCC 444.
4) Gurbinder Singh @ Shinder vs. State of Punjab, CRR No.
1765/2015.
13. The whole dispute hinges around whether, the effected 951.350 Kg
of contraband substance from the vehicle make Toyota Fortuner
bearing registration No. DL 13CA 1800 pursuant to the disclosure
made by Manu Khosla does cover under the NDPS Act, 1985?
The answer obviously is YES.
14. In the year 1961, a single convention on narcotic drugs was adopted
by member countries. The Single Convention, adopted in 1961,
consolidated those treaties and broadened their scope to include
cannabis and drugs whose effects are similar to those of the drugs
specified, however, India opposed to it.
15. India, prior to 1985 exercised the statutory control over narcotic
drugs under The Opium Act, 1857 and The Dangerous Drugs Act,
1930.
16. The Single Convention unambiguously condemns drug addiction,
however, stating that "addiction to narcotic drugs constitutes a
serious evil for the individual and is fraught with social and
economic danger to mankind" which ultimately compelled the Indian
government to introduce the Narcotic Drugs and Psychotropic
Substances Bill, 1985 in the Lok Sabha on 23 August 1985. It was
passed by both the Houses of the Parliament and was assented by the
President on 16 September 1985. It came into force on 14 November
1985 as:-
THE NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985 (shortened to NDPS Act).
17. The general procedure adopted to deal with the custody and disposal
of the property are given under the relevant provisions of Sections
451 and 452 and 457 Cr.P.C., 1973 which are reproduced as under:-
"451. Order for custody and disposal of property
pending trial in certain cases.- When any property is
produced before any Criminal Court during an inquiry
or trial, the court may make such order as it thinks fit for
the proper custody of such property pending the
conclusion of the inquiry or trial, and, if the property is
subject to speedy and natural decay, or if it is otherwise
expedient so to do, the court may, after recording such
evidence as it thinks necessary, order it to be sold or
otherwise disposed of.
Explanation.- For the purposes of this section,
"property" includes-
(a) property of any kind or document which is
produced before the court or which is in its
custody.
(b) any property regarding which an offence
appears to have been committed or which
appears to have been used for the commission of
any offence.
452. Order for disposal of property at conclusion of
trial.-
(1) When an inquiry or trial in any Criminal Court is
concluded, the court may make such order as it thinks fit
for the disposal, by destruction, confiscation or delivery
to any person claiming to be entitled to possession
thereof or otherwise, of any property or document
produced before it or in its custody, or regarding which
any offence appears to have been committed, or which
has been used for the commission of any offence.
(2) An order may be made under sub-section (1) for the
delivery of any property to any person claiming to be
entitled to the possession thereof without any condition
or on condition that he executes a bond with or without
sureties, to the satisfaction of the court, engaging to
restore such property to the court if the order made
under sub-section (1) is modified or set aside on appeal
or revision.
(3) A Court of Session may, instead of itself making an
order under sub-section (1), direct the property to be
delivered to the Chief Judicial Magistrate, who shall
thereupon deal with it in the manner provided in sections
457, 458 and 459.
(4) Except where the property is livestock or is subject to
speedy and natural decay, or where a bond has been
executed in pursuance of sub-section (2), an order made
under sub-section (1) shall not be carried out for two
months, or when an appeal is presented, until such
appeal has been disposed of.
(5) In this section, the term "property" includes, in the
case of property regarding which an offence appears to
have been committed, not only such property as has been
originally in the possession or under the control of any
party, but also any property into or for which the same
may have been converted or exchanged, and anything
acquired by such conversion or exchange, whether
immediately or otherwise.
457. Procedure by police upon seizure of property.-
(1) Whenever the seizure of property by any police officer
is reported to a Magistrate under the provisions of this
Code, and such property is not produced before a
Criminal Court during an inquiry or trial, the Magistrate
may make such order as he thinks fit respecting the
disposal of such property or the delivery of such property
to the person entitled to the possession thereof, or if such
person cannot be ascertained, respecting the custody and
production of such property.
(2) If the person so entitled is known, the Magistrate may
order the property to delivered to him on such conditions
(if any) as the Magistrate thinks fit and if such person is
unknown, the Magistrate may detain it and shall, in such
case, issue a proclamation specifying the articles of
which such property consists, and requiring any person
who may have a claim thereto, to appear before him and
establish his claim within six months from the date of
such proclamation."
18. On a bare perusal of the above three provisions, one can come to a
conclusion that each of these provisions deal with a different
situation.
Section 451 Cr.P.C. deals with interim custody of the seized
property which has been produced before the Court.
Section 452 Cr.P.C. deals with the disposal of the seized
property after enquiry or trial in a criminal Court is concluded.
Section 457 Cr.P.C. applies to a situation where the property
which has been seized by the police was not produced before the
Court.
19. The present case pertains to one under the NDPS Act, 1985 which is
a special law as compared to the general procedural law mentioned
herein above. The NDPS Act, 1985 is applicable over the general
law for the purposes of the present case. The reliance is placed upon
the judgment of the Apex Court in the case reported at P.V.
Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda and
Another; 2002 5 SCC 548.
20. Section 8 of the NDPS Act, 1985 deals with produce, manufacture,
possess, sell, purchase, transport, warehouse, use, consume, import
inter-State, export inter-State, import into India, export from India or
tranship any narcotic drug or psychotropic substance except for
medical or scientific purposes which is reproduced as under:-
"8. Prohibition of certain operations. - No person
shall-
(a) cultivate any coca plant or gather any portion
of coca plant; or
(b) cultivate the opium poppy or any cannabis
plant; or
(c) produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import
inter-State, export inter-State, import into India,
export from India or tranship any narcotic drug
or psychotropic substance,
except for medical or scientific purposes and in the
manner and to the extent provided by the provisions of
this Act or the rules or orders made thereunder and in a
case where any such provision, imposes any requirement
by way of licence, permit or authorization also in
accordance with the terms and conditions of such
licence, permit or authorization:
Provided that, and subject to the other provisions
of this Act and the rules made thereunder, the prohibition
against the cultivation of the cannabis plant for the
production of ganja or the production, possession, use,
consumption, purchase, sale, transport, warehousing,
import inter-State and export inter-State of ganja for any
purpose other than medical and scientific purpose shall
take effect only from the date which the Central
Government may, by notification in the Official Gazette,
specify in this behalf:
[Provided further that nothing in this section shall
apply to the export of poppy straw for decorative
purposes.]"
21. Further Section 60 of the NDPS Act deals with its liablity of illicit
drugs, substances, plants, articles and conveyances to confiscation.
Sub-section (3) of Section 60 of the NDPS Act specifically emphasis
that any animal or conveyance used in carrying any narcotic drugs or
psychotropic substance shall be liable to confiscation.
22. Instant is a case where recovery of 951.350 Kg of
Methaqualone/Ketamine Hydrochloride was alleged to be effected
from a vehicle make Toyota Fortuner bearing registration No. DL
13CA 1800, belonging to the present respondent, i.e., Amit Kumar,
and releasing of the said vehicle on superdari is to be dealt as per the
provisions of the NDPS Act, 1985 as the said Act being a special
law.
23. The Department of Revenue of the Ministry of Finance with its
Notification No.S.0.311.(E) dated 10.02.2011 declared Ketamine
Hydrochloride to be a part of the schedule of the NDPS Act, thereby
declaring it to be a psychotropic substance which is reproduced as
under:
" TO BE PUBLISHED IN THE GAZETTE OF INDIA,
EXTRAORDINARY,
PART II, SECTION 3, SUB-SECTION (ii)
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
NOTIFICATION
New Delhi, the 10th February, 2011
S. O. 311 (E).- Whereas the Central Government is
satisfied, on the basis of information and evidence which
has become available to it with respect to the nature and
effect of, or the scope of abuse of, any substance (natural
or synthetic) or natural material or any salt or
preparation of such substance or material, that it is
expedient to add the following substance or natural
material or salt or preparation of such substance or
material in the list of Psychotropic Substances specified
in the Schedule to the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985) Act;
Now, therefore, in exercise of the powers
conferred by Section 3 of the said Act, the Central
Government hereby makes the following addition in the
list of Psychotropic Substances specified in the Schedule
of the said Act, namely:-
In the Schedule to the Said Act, after serial number
10 and the entries relating thereto, the following serial
number and the entries shall be inserted, namely:-
S. No. International Other Chemical
name
Non-proprietary non-proprietary
names names
"11oA Ketamine 2-(2
chlorophenyl)-2-
(methyl amino)
cyclohexanone"
F.No. N/11012/4/2010-NC-II
SATYA NARAYANA DASH, Under Secy.
Note: The Schedule to the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985) was
amended vide number S.O. 785(E), dated 26th October,
1992 and subsequently by S.O. 49(E), dated 8th January,
1993, S.O. 39(E) dated 12th January, 1996, S.O. 475(E),
dated 11th June, 2003, G.S.R. 621(E), dated 1st August,
2003 and G.S.R. 1(E), dated 2nd January, 2004."
24. The Court below while dealing with the instant case went wrong on
the point that, no offence under the NDPS Act was made out, for
want of inclusion of Ketamine Hydrochloride in the Schedule of the
NDPS Rules, 1985. The notification of the Department of Revenue
of the Ministry of Finance with its Notification No.S.0.311.(E) dated
10.02.2011 declared Ketamine Hydrochloride to be a part of the
schedule of the NDPS Act, thereby declaring it to be a psychotropic
substance. Reliance is placed on the judgment of the Apex Court in
the case reported at Union of India and Another vs. Sanjeev V.
Deshpande, AIR 2014 SC 3625 and the judgment of this Court in the
case reported at Directorate of Revenue Intelligence vs. Anil
Kumar,2014 (4) JCC 202.
25. The decisions relied upon by the learned counsel for the respondent
are of no help to the respondent in view of the facts and
circumstances of the case and for the reason that the NDPS Act is a
special law and the offence committed under the said Act shall be
dealt in accordance with the provisions of the special law.
26. Keeping in view the facts and circumstances and the discussions
made above, the present petition succeeds. The petition is allowed
and the impugned orders dated 12.12.2013 passed by the learned
Special Judge, NDPS cases, Saket, New Delhi is set aside.
27. The respondent is directed to surrender the vehicle make Toyota
Fortuner bearing registration No. DL 13CA 1800 forthwith before
the trial court, failing which the trial court will proceed further in
accordance with law.
The petition is disposed of accordingly.
28. Let one copy of this order be sent to the concerned court for
necessary compliance. No order as to costs.
I.S.MEHTA
(JUDGE)
NOVEMBER 22, 2016
