Mahamadkhan Isubkhan Makarani vs State Of Gujarat
2021 Latest Caselaw 16872 Guj

     R/SCR.A/7316/2020                                    ORDER DATED: 27/10/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 7316 of 2020

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                 MAHAMADKHAN ISUBKHAN MAKARANI
                             Versus
                        STATE OF GUJARAT
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Appearance:
ROHANKUMAR M AMIN(8851) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 27/10/2021

                                ORAL ORDER

1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure with prayer for custody of the Truck - L.T.P.3118 being R.T.O. Registration No.RJ-38-GA-1699 to the petitioner by quashing and setting aside the order 19.10.2020 passed in Criminal Application No.2185 of 2020 by 2 nd Additional District & Sessions Judge, Ahmedabad (Rural) Ahmedabad.

2. The truck was seized in connection with the offence registered as NCB/AZU/Cr.No.06/2020 punishable under Sections 8(c), 20(b)(ii)(c), 25 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short). The vehicle came to be seized by Narcotic Control Bureau,

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Ahmedabad.

3. Mr. Roshankumar M.Amin, learned advocate for the petitioner submitted that the petitioner is nowhere involved in the commission of offence and has no nexus whatsoever in any of the allegations made in the complaint. He states that the interim custody of the vehicle is required to be given to the petitioner, who is owner of the vehicle, since the vehicle if kept in open place, unutilized, would diminish its value.

3.1 Mr. Amin submitted that the muddamal vehicle has been detained by the investigating officer and that if the interim custody of the vehicle is not given, serious prejudice would be caused to the petitioner as the muddamal vehicle would get substantially damaged by the time the trial gets concluded.

3.2 Mr. Amin also stated that petitioner has no knowledge of the same vehicle being used in such illegal activity. He states that the petitioner had agreed to sell the vehicle to Zanserkhan Inayatullakhan Pathan, who is an accused in the offence, but as he failed to fulfill the terms of the agreement and failed to pay the consideration money of the vehicle which he had agreed to pay by way of cheques since the cheques got dishonoured, the petitioner has filed complaint under Section 138 of the N.I. Act before the Court of Judicial

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Magistrate, Palanpur, which was registered as Criminal Case No.351/2020.

3.3 Mr. Amin states that the vehicle was hypothecated with IndusInd Bank Limited at the loan of Rs.26,53,275/- and monthly installment is of Rs.61,175/- towards loan, which the petitioner is obliged to pay to the Bank. He submits that any appropriate condition imposed by this Court for release of the vehicle, the petitioner is bound to follow.

3.4 In support of his submission, Mr.Amin relied on the case of Aftab H.Saikia Vs. State of Assam rendered by the Gauhati High Court in Criminal Revision No.228 of 2002 and the case of Madan Lal Vs. State, NCT of Delhi rendered by the High Court of Delhi in Crl. M.(M) No.2872/2001.

4. Taking serious objection to the petition, Mr. Kartik V.Pandya, learned advocate for respondent no.2 relying on the affidavit-in-reply of the N.C.B. - respondent no.2, stated that it is highly improbable that petitioner was not aware of the vehicle being used in transporting prohibited article 'Ganja'. Mr. Pandya stated that about 305 K.G. Ganja was seized with the Truck and necessary action as per the NDPS Act was initiated and there was sufficient compliance of Section 42 of the Act.

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4.1 Mr. Pandya submitted that after the completion of the investigation, the complaint under Section 36-A of the NDPS Act was filed before the competent Court. He states that as per admission of the petitioner, the said Truck was sold to accused no.1 and therefore the custody would be of the accused and hence any contention raised by the petitioner would not be genuine and in that circumstance, the learned Sessions Court has rightly rejected the petition.

4.2 Mr. Pandya submitted that Section 451 Cr.P.C. would not be attracted in the present matter since the provision of Section 60(3) of the NDPS Act makes it clear that any conveyance used in carrying the narcotic drugs or psychotropic substance or control substance or any article liable to confiscation would make it liable to confiscate the very conveyance used for transporting such prohibited articles.

4.3 Mr. Pandya thus stated that it is for the petitioner to go by the provision of Section 52-A of the NDPS Act and Section 60(3) of the NDPS Act provides for final order, and therefore submitted that there is no reason to interfere in the order passed by the learned Sessions Court, Ahmedabad (Rural) dated 19.10.2020.

4.4 In support of his submission, Mr.Pandya relied on the case of Bhupendra Pathak Vs. State of U.P. &

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Anr. rendered by the Allahabad High Court in Criminal Revision No.4509 of 2018 and in case of M/s. Smart Logistics Vs. State of Kerla & Anr. rendered by the Kerla High Court in W.P.(C) No.5042 of 2020.

5. Section 60(3) of the NDPS Act reads as under:

"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."

6. The present petitioner is not made an accused in the matter; the vehicle is in his ownership. The petitioner admits the fact of agreement of sale which was executed in favour of the accused. The said vehicle is on loan with IndusInd Bank Limited. The petitioner has to pay the installment on the vehicle. This very fact suggests that, the petitioner would not have any knowledge of the

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vehicle being used for transportation of the consignment of prohibited articles. Sub-section (3) of Section 60 extends this benefit to the owner of the conveyance which he would have to prove it during the trial. Thus, in view of provision of sub-section (3) of section 60, if the petitioner is in a position to prove the fact that the vehicle so used was not within his knowledge, then he would get benefits of the provision of sub-section (3) of section 60. Section 63 of the NDPS Act makes the provision for procedures in making confiscation. Section 63 reads as under:

"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

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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."

7. Proviso to sub-section (2) of Section 63 is a salutary provision, which says that no order of confiscation of an article or thing shall be made without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim. The petitioner herein has produced the copy of certificate of registration which shows that he is the

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owner of the vehicle; the certificate of Registration issued by Government of Rajasthan and the statement of accounts and the borrower details in the name of the present petitioner, no objection letter of the Indusind Bank Ltd. dated 03.09.2020 where the Bank has permitted to handover the vehicle to the present petitioner.

7.1 Section 60(3) and section 63 of the NDPS Act makes it clear that any conveyance used for carrying any narcotic drugs or psychotropic drugs is liable to be confiscated after hearing the parties who claim any right thereto after considering the evidence, if any, which he produces in respect of his claim, such an order would be made only at the end of the trial. The sections do not make provision in empowering the trial Court to make an order for interim custody of the conveyance pending trial.

8. Section 451 Cr.P.C. mandates that a property produced before the criminal Court during the trial, the Court may make order for proper custody of the said property pending conclusion of the trial. The object of Section 451 Cr.P.C. is well defined by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 Supreme Court Cases, wherein the Hon'ble Apex Court have extracted Para - 4 of the judgment delivered in the case of Smt. Basava Kom Dyamangouda Patil vs. State of

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Mysore and Another [ (1977) 4 SCC 358], which reads thus:

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place, it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced

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before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. The court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the state or its officers had taken due care and caution to protect the property, the magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest."

9. The provision made in section 451 of Cr.P.C. for passing an order for proper custody of the conveyance pending conclusion of trial is not inconsistent with section of the Act including Section 60(3) and Section 63 of the

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NDPS Act. The said vehicle, if is not released in appropriate time it would get substantially damaged by the passage of time the trial will take its own time to conclude and probably, by that time, the value of the muddamal vehicle may also become 'Nil' as the vehicle is lying under the open sky in different climatic conditions. Therefore, pending trial order for releasing of the vehicle needs to be made.

10. In the result, by exercising the inherent power under Section 482 Cr.P.C., the petition is allowed. The order dated 19.10.2020 passed in Criminal Application No.2185 of 2020 by 2nd Additional District & Sessions Judge, Ahmedabad (Rural) is quashed and set aside. The authority concerned is directed to release the vehicle of the petitioner bearing Registration No.RJ-38-GA-1699 on the terms and conditions that the petitioner;

(i) shall furnish, by way of security, bond and solvent surety equivalent of the amount as stated in the seizure memo;

(ii) shall file an Undertaking on oath before the trial Court that prior to alienation or transfer of the vehicle in any mode or manner, prior permission of the concerned trial Court shall be taken until the conclusion of trial;

(iii) shall also file an Undertaking on oath to

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produce the vehicle as and when directed by the trial Court;

(iv) in the event of any subsequent offence, the vehicle shall stand confiscated.

10.1 Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and detailed panchnama in that regard, if not already drawn, shall be drawn for the purpose of trial. If the Investigating Officer finds it necessary, videography / photography of the vehicle shall also be done and the expenses thereof shall be borne by the petitioner.

10.2 Rule is made absolute. Direct service is permitted. Learned advocate for the petitioner is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.

(GITA GOPI, J.) Pankaj