Between vs Unknown
2021 Latest Caselaw 3853 HP

               IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                        ON THE 12th DAY OF AUGUST, 2021
                                     BEFORE




                                                                                                    .
                HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA





                        CRIMINAL REVISION No.60 of 2010
           Between:-
           SHRI CHAMAN NAYYAR,
           S/O SHRI NAND LAL NAYYAR,





           R/O VILLAGE GAJAN,
           P.O KARJAN,
           TEHSIL MANALI, DISTRICT KULLU, H.P.
                                                  ......PETITIONER
           (BY SH. AMIT SHARMA, ADVOCATE)





           AND

           STATE OF HIMACHAL PRADESH                                                ......RESPONDENT

           (BY MR. ARVIND SHARMA, MR. P.K. BHATTI, MR. BHARAT

           BHUSHAN, ADDITIONAL ADVOCATE GENERALS, MR. AMIT KUMAR
           DHUMAL, DEPUTY ADVOCATE GENERAL AND MR. MANOJ BAGGA,

           ASSISTANT ADVOCATE GENERAL.
           1
               WHETHER APPROVED FOR REPORTING ? Yes.

                      This petition coming on for orders this day, the Court passed the following :

                                                     JUDGMENT

The instant revision petition, under Section 397 of the Code of

Criminal Procedure, has been maintained by the petitioner against the

order of learned Additional Sessions Judge, Fast Track, Kullu, whereby

order passed by the learned Judicial Magistrate 1st Class, Manali, set aside

and motorcycle bearing registration No.HP-34-A-1783, has been ordered

to be confiscated to the State of Himachal Pradesh, under Section 60 (3)

of the Narcotic Drugs and Psychotropic Substances, Act.

2. The key facts, giving rise to the present petition are that a

criminal case No.352-1 of 06-59-III of 06, titled State vs. Om Prakash and

others, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic

Substances, Act, 1985 (hereinafter referred to as 'NDPS Act') was

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

disposed of by the Court of learned Judicial Magistrate 1st Class, Manali, in

which, accused persons were convicted. The vehicle bearing registration

No.HP-34-A-1783, owner by the petitioner, which was being used in the

.

commission of offence. Therefore, a notice, under Section 60 of NDPS

Act, was issued to him to show cause, as to why the said vehicle be not

confiscated to the State. A reply was filed by the petitioner and it is

averred that he had not committed the offence nor he had indulged in the

commission of offence. The offence was committed by the accused

persons without his knowledge. The vehicle in question was given to

accused Om Prakash, on his request, as he had an urgent work at Manali.

The petitioner had no knowledge or fault, as he had given the motorcycle

in good faith to Om Prakash. The evidence was recorded by the learned

trial Court, wherein it was held that the petitioner handed over his vehicle

to Om Prakash, in good faith and he was not having any knowledge, Om

Prakash would carry charas in the vehicle. Therefore, the vehicle was

used without knowledge and connivance of the petitioner and it was not

liable for confiscation. Thereafter, the State maintained the revision

petition before the learned Additional Sessions Judge, Fast Track, Kullu

and the learned trial Court, vide impugned order to set aside the order

passed by the learned Court below and ordered for confiscation of the

vehicle.

3. It is on record that the vehicle bearing registration No.HP-34-

A-1783, was being used by the accused for the commission of offence

punishable under Sections 20 and 29 of the NDPS, Act. Admittedly, the

vehicle is owned by the petitioner. He has stated that he is rightful owner

of the vehicle and he recognized the accused Om Prakash, as his friend

and they have cordial relations. He has further stated that accused Om

Prakash told him that his vehicle was required for one hour, as he had to

go to Manali Hospital. In his cross-examination, he has not been able to

show anything that the petitioner had knowledge that his vehicle was

.

being used by the accused. He has also denied that he had any

knowledge qua carrying of charas by the accused Om Prakash, on his

vehicle. Thus, statement of the petitioner has remained unshattered. It

is evident that the petitioner had handed over his vehicle to accused Om

Prakash in good faith being his friend and he was not having any

knowledge that accused Om Prakash would carry charas on his vehicle

and also would use his vehicle for committing offence punishable under

Section 20 of the NDPS Act.

4. It is abundantly clear that motorcycle was being used by the

accused persons without connivance. However, Section 60 (3) of the

NDPS Act, provides that if the vehicle is used without knowledge of the

owner whether anything is carried in it or not, is of no consequence. In

the present case also, the vehicle was being used by the accused persons

and it was within the knowledge of owner that his vehicle being used by

the accused. Now, whether it is used for the purpose of carrying

narcotics or otherwise, is of no consequence, the owner has no

knowledge with regard to that is of no consequence. In view of Section

60 (3) of the NDPS Act, the only knowledge is required, when the vehicle

is being used by the accused, the owner has knowledge. Since the owner

was having knowledge, the vehicle was required to be confiscated.

5. In the present case, the owner claimed that he had handed

over the motorcycle to his friend and he was having no concern with the

case. This was not sufficient, as further requirement is that he had taken

all reasonable precautions to prevent the wrongful use has not been

satisfied. However, he has admitted in his cross-examination that when

Om Prakash did not return after one hour, he did not make any inquiry,

which shows that the plea regarding handing over his vehicle to Om

.

Prakash for one hour, is not acceptable, as he would have been alarmed

by non returning the motorcycle after lapse of one hour. He also

admitted in cross-examination that he had not been taken any

precautions to ensure that the motorcycle would not have been used for

transportation of the charas. In these circumstances, I find no ambiguity

to interfere with the well reasoned order passed by the learned Additional

Sessions Judge, Fast Track, Kullu.

6. Consequently, the instant revision petition, which sans merits,

deserves dismissal and is accordingly dismissed. No order as to costs.

Pending application(s), if any, also stand(s) disposed of.

(Chander Bhusan Barowalia) 12th August, 2021. Judge (CS)