Thippeswamy vs The State Of Karnataka By
2021 Latest Caselaw 1499 Kant

                             1
                                                        R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 01ST DAY OF FEBRUARY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

               CRIMINAL PETITION No.25/2021

BETWEEN:

THIPPESWAMY,
S/O BASAPPA,
AGED ABOUT 38 YEARS,
R/O CHIRATAGUNDU VILLAGE,
KUDLIGI TALUK,
BELLARY DISTRICT-583 135.                        ... PETITIONER

              (BY SRI B.S. UMESH, ADVOCATE FOR
               SRI R.B. DESHPANDE, ADVOCATE)

AND:

THE STATE OF KARNATAKA BY
EXCISE INSPECTOR,
MOLAKALMURU RANGE,
HIRIYURU SUB-DIVISION,
CHITRADURGA DISTRICT-577 535.
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU-560 001.                          ... RESPONDENT

          (BY SRI SHEELAVANTH V.M., SPP ALONG WITH
               SMT. NAMITHA MAHESH B.G., HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 27.08.2020
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHITRADURGA     IN   CR.NO.14/2019-20   OF   EXCISE   P.S.,
MOLAKALMURU RANGE, HIRIYURU SUB-DIVISION IN DISMISSING
THE APPLICATION FILED UNDER SECTION 457 OF CR.P.C. FOR
INTERIM CUSTODY OF VEHICLE AND ALLOW THE SAID
                                  2



APPLICATION BY GRANTING INTERIM CUSTODY OF VEHICLE
NAMELY viz. HERO SPLENDOR, MOTORCYCLE BEARING TEMPORARY
REGISTRATION     NO.KA/34/TEMP/2019/20050,  ENGINE  NO.
HA10AGKHHE9299, CHASIS NO. MBLHAWO82KHH63217 SEIZED IN
CR.NO.14/2019-20 OF EXCISE P.S., MOLAKALMURU RANGE,
HIRIYUR SUB-DIVISION IN ITEM NO.2/2019 IN FAVOUR OF THE
PETITIONER.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 12.01.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                            ORDER

Heard the learned counsel for the petitioner and also High

Court Government Pleader appearing for the State.

     2.    The   factual   matrix      of    the   case   is   that   the

complainant   Mrs.   Keerthana       T.R.,   Excise   Sub-Inspector-I,

Molakalmuru Range registered a case on 13.12.2019 in FIR

No.14-2019-20/1409/SIE1/140909 against this petitioner for the

offence punishable under Section 20(ii)(B), 25, 8(c) of Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short 'the

NDPS Act'). The allegation against this petitioner is that on

30.12.2019, as per the instructions of the Deputy Commissioner

of Excise, the complainant along with staff based on the credible

information, went near Tumakurlahally gate and at about 1.30

p.m., when the suspected vehicles were being checked, this

petitioner came riding a motorcycle and on looking to the Excise

officials, he became panic and after intercepting his vehicle and

searching it, the ganja weighing 2 kgs. was found in the bag,

which was being transported for its unauthorized and illegal sale.

The vehicle and the narcotic drug were seized by drawing the

panchanama and subjected the same for P.F. The case was

registered and the police have also, after the investigation, filed

the charge sheet. The petitioner was arrested on 13.12.2019 and

remanded to Judicial Custody and thereafter on 05.07.2020, the

petitioner was enlarged on bail.

3. The petitioner being the owner of the vehicle filed an

application under Section 457 of Cr.P.C. for interim custody of

the said vehicle and vide order dated 27.08.2020, the learned

Sessions Judge was pleased to reject the said application on the

ground that the petitioner is not entitled for the custody as per

Section 60(3) of the NDPS Act. Hence, the present petition is

filed invoking Section 482 of Cr.P.C. praying this Court to release

the subject matter of the vehicle, which was seized in the said

crime.

4. Learned counsel appearing for the petitioner would

submit that the Sessions Judge ought to have considered the

application of the petitioner for the interim custody and

committed an error in not entertaining the application. Ever

since the seizure of the aforesaid vehicle, the police have kept

the same in the open premises without any protection from

exposing to sun and air and if the vehicle is exposed to sun and

air for longer period of time, the mechanical condition of the

vehicle and its value would be deteriorated. Learned counsel

also would submit that under Sections 36-C and 51 of the NDPS

Act, the provisions of the Criminal Procedure Code is applicable

when seizures are made under the NDPS Act. Under these

circumstances, the learned Sessions Judge ought to have applied

the provisions under Section 451/457(1) of Cr.P.C. and released

the vehicle in favour of the petitioner. Hence, it requires

interference of this Court to release the vehicle.

5. Per contra, the learned High Court Government

Pleader appearing for the State would submit that the similar

question was raised before this Court in Criminal Petition

No.4792/2020 and this Court dealt with the matter in detail

referring to the judgment in the case of Union of India v.

Mohanlal and another reported in (2016)3 SCC 379.

Learned counsel also relied upon the judgment of the Kerala

High Court in the case of Smart Logistics represented by its

Managing Partner, M. Gopinath v. State of Kerala reported

in 2020 SCC Online Ker 3760. Learned counsel referring to

this judgment brought to the notice of this Court paragraph

Nos.18 to 26 and also paragraph Nos.53 and 54 of the

judgment, wherein the Kerala High Court made an observation

that it is only proper to grant an opportunity to the petitioner to

make a representation to the Drug Disposal Committee raising

its claim over the vehicle.

6. Learned High Court Government Pleader also

brought to the notice of this Court that today in Criminal

Revision Petition No.623/2020, the Coordinate Bench referred

the matter to the larger bench since the matter requires to be

considered by the larger bench.

7. In reply to the arguments of the learned High Court

Government Pleader appearing for the State, learned counsel for

the petitioner brought to the notice of this Court the judgment of

the Chhattisgarh High Court passed in Criminal Miscellaneous

Petition No.1374/2020 between the parties Tikeshwar

Singh v. State of Chhattisgarh, wherein it is held that vehicle

seized for commission of offence under Section 20(b) of the

Narcotic Drugs and Psychotropic Substances Act, 1985; interim

custody can be granted under Section 451/457 of the Code of

Criminal Procedure, 1973. The Chhattisgarh High Court while

passing the order has taken note of and discussed Sections 60,

63 of the NDPS Act and also discussed Section 51 of the NDPS

Act and so also considered Section 36-C of the NDPS Act. Having

considered the relevant provisions, the High Court set aside the

order of the learned Special Judge and remitted the matter to

the Special Judge to pass an order on interim custody of the

vehicle within 10 days from the date of the production of

certified copy of this order as per the decisions of the Supreme

Court in the case of Sunderbhai Ambalal Desai v. State of

Gujarat and in the matter of Ashok Kumar v. State of Bihar

and others.

8. Having heard the submissions of the respective

counsel and also on perusal of the relief sought in the present

petition, the prayer is to release the vehicle for interim custody

of the petitioner invoking Section 457 of Cr.P.C. Having perused

the order of the Trial Court, the Trial Court referring to the

judgment of the Apex Court in Ganga Hire Purchase Pvt. Ltd.,

v. State of Punjab and Ors, discussed the scope of Sub-

section (3) of Section 60 of the NDPS Act and comes to a

conclusion that it is a deterrent measure to check the offences

under the Act in question which have been found to be

dangerous to the entire society and held that applicant does not

deserve to be allowed.

9. The Chhattisgarh High Court in the judgment

referred supra, no doubt discussed in detail Sections 60, 63 and

51 of the NDPS Act and so also Section 36-C of the NDPS Act.

Having perused the entire judgment, the Chhattisgarh High

Court did not discuss the judgment of the Apex Court reported in

2016(1) SCC (Crl.) 864 in the case of Union of India v.

Mohanlal and another. The Coordinate Bench of this Court in

Crl.P.No.4792/2020 has made a reference to the judgment of

the Apex Court in Mohanlal's case while dealing with the similar

situation and comes to a conclusion that in view of the specific

provisions under the special enactment, the Magistrate or the

Special Court cannot entertain the petition. However, given the

liberty to the petitioner to approach the said Drug Disposal

Committee to release the vehicle in question, which shall be

considered by the Committee within 15 days after the receipt of

an application from the petitioner.

10. Learned High Court Government Pleader appearing

for the State would submit that in Criminal Revision Petition

No.623/2020, the matter has been referred to the larger bench

since there are conflicting decisions in the judgment of this Court

and also the judgments of the other High Courts and this matter

also requires to be referred to the larger bench.

11. Having considered the principles laid down in the

judgment of the Coordinate Bench of this Court and also the

judgment of the Chhattisgarh High Court and so also the

judgment of the Kerala High Court, the Kerala High Court in the

Division Bench, when the matter was referred to larger bench, in

similar circumstances, as referred by this Court, considered the

reference and relying upon the principles laid down in the

judgment of Mohanlal's case of the Apex Court held that there

is no two way of looking at it. Apparently, in such instances,

going by the statutory provision under the Special Act, the power

of the Magistrate to consider the claim under Section 451 of

Cr.P.C. stands denuded.

12. Having perused the principles laid down in the

judgment of the Apex Court as well as the judgment of the

Kerala High Court and so also the judgment of the Chhattisgarh

High Court, this Court has to take note of the very object of

bringing the enactment i.e., Special Enactment with regard to

the disposal of the articles of psychotropic substances and also

the conveyance seized. The special provision is introduced

under Section 52A of the Act and also the amendment made in

the year 2014 is for inclusion of the conveyance. Thus, it is clear

that if the vehicle which was involved in the psychotropic

substances has been seized, while releasing the said vehicle for

interim custody, the very object of the Special Enactment and

the wisdom of the Legislature are to be taken note of.

13. Learned counsel referring the judgment of the

Chhattisgarh High Court (supra) and also the judgment of

Madhya Pradesh High Court in the case of Manoj Kumar

Pandey v. State of M.P. reported in 2019 SCC Online MP

2315 and Tripura High Court in the case of Sri. Sankar Das v.

The State of Tripura (Crl.P.No.9/2018), would submit that

the very judgment of the Apex Court passed in Mohanlal's case

has been distinguished and entertained the petition under

Section 457 of Cr.P.C..

14. Having considered the submissions of both the

respective counsels, the decision of the Chhattisgarh High Court,

wherein the judgment of the Apex Court in Mohanlal's case has

not been discussed, but in other judgments the decision of the

Apex Court referred supra has been discussed. However, this

Court has to take note of the principles laid down in the

judgment referred supra in the case of Union of India v.

Mohanlal and Another and paragraph No.30.3 of the said

judgment is extracted hereunder:-

"30.3. Cases in which the proceedings are still pending before the Courts at the level of trial court, appellate court or before the Supreme Court: In such cases the heads of the department concerned shall ensure that appropriate applications are moved by the officers competent to do so under Notification dated 16-1-2015 before the Drugs Disposal Committees concerned and steps for disposal of such narcotic drugs and psychotropic and controlled

substances and conveyances taken without any further loss of time".

15. The Apex Court, in the said decision, while dealing

with the similar circumstances, the cases in which the

proceedings are still pending before the Courts at the level of the

Trial Court, the Appellate Court or before the Supreme Court, it

is made clear that the heads of the department concerned shall

ensure that appropriate applications are moved by the officers

competent to do so under Notification dated 16.01.2015 before

Drugs Disposal Committees concerned and steps for disposal of

such narcotic drugs and psychotropic and controlled substances

and conveyance taken without any further loss of time, specific

direction was given to the concerned department to ensure that

appropriate applications are moved by the officers competent to

do so and when the Apex Court specifically dealt with the matter

with regard to when the matter is pending at the level of the

Trial Court, in the case on hand also, the petitioner has

approached the Magistrate invoking Section 451 of Cr.P.C. and

the same has been rejected. It is also to be noted that when the

specific provision has been made under the Special Enactment,

the Court has to take note of the wisdom of the Legislature in

bringing the special enactment to deal with the interim custody

of the vehicle.

16. The Co-ordinate Bench of this Court in

Crl.R.P.No.623/2020 vide order dated 12.11.2020 passed an

order to release the vehicle. Thereafter, the State filed an

application in the very same petition to recall the order on the

ground that the relevant provisions of law was not brought

before this Court with regard to bar under Section 52A of the

NDPS Act. This Court considered I.A.No.1/2020 and dismissed

the application. However, referred the matter to the Larger

Bench making an observation that Section 52A of the NDPS Act

cannot take away the jurisdiction of the Magistrate or the Special

Court to decide the question as to the entitlement of the

claimant for the interim custody of the seized vehicle. It is also

observed that the notification issued by the Central Government

runs counter to Sections 60 and 63 of the NDPS Act. It is further

observed that these questions, therefore, require to be

considered by the Larger Bench.

17. The Apex Court in the judgment in the case of

Mohanlal (supra) in paragraph No.30.3 has held that cases in

which the proceedings are still pending before the Courts at the

level of Trial Court, Appellate Court or before the Supreme

Court, in such cases the heads of the department concerned

shall ensure that appropriate applications are moved by the

officers competent to do so under notification dated 16.01.2015

before the Drugs Disposal Committees concerned and steps for

disposal of such narcotic drugs and psychotropic and controlled

substances and conveyances taken without any further loss of

time.

18. This Court having considered the direction of the

Apex Court, instructed the learned High Court Government

Pleader to verify as to whether any steps has been taken as

directed by the Appellate Court and the learned High Court

Government Pleader submits that no such steps has been taken

even though the judgment was passed in 2016. It is pertinent

to note that vide notification dated 16.01.2015, there is no

provision for release of such narcotic drugs and psychotropic and

controlled substances and conveyances. But the Apex Court in

the said judgment held that the same has to be dealt with by the

Drugs Disposal Committee. When the notification is silent with

regard to the procedure to be adopted for the release of interim

custody, there is difficulty to take the interim custody of the

same.

19. It has to be noted that the judgments referred above

including the judgment of the Kerala High Court when the matter

was referred, has categorically held that the matter has to be

dealt with under Section 52A of the NDPS Act. The Co-ordinate

Bench of this Court also considering the judgment of Kerala High

Court in Crl.P.No.4792/2020 directed to approach the Drugs

Disposal Committee for the release of the vehicle. Now there

are contrary judgments. One Co-ordinate Bench of this Court in

Crl.P.No.4792/2020 vide order dated 24.11.2020 passed the

order to approach the Drugs Disposal Committee and the other

Co-ordinate Bench of this Court in Crl.R.P.No.623/2020 vide

order dated 12.11.2020 allowed the petition for release of the

vehicle, but subsequently on filing of the I.A., the matter is

referred to the Larger Bench. It is also important to note that

Madhya Pradesh High Court in the judgment in the case of

Manoj Kumar Pandey (supra) discussed Sections 52A, 60 and

63 of the NDPS Act and ordered to release the vehicle in favour

of the applicant.

20. Having considered the judgments referred supra,

there are conflicting judgments and the Co-ordinate Benches of

this Court also passed conflicting judgments. When such being

the case, when the matter is already referred to the Larger

Bench by the Co-ordinate Bench of this Court while considering

I.A.No.1/2020 in Crl.R.P.No.623/2020, it is appropriate to refer

this matter also to the Larger Bench to consider the questions

involved in the matter on record with regard to Sections 52A, 60

and 63(2) of the NDPS Act as to who is the competent authority

to release the same. Even in the notification dated 16.01.2015,

no provision or modality is prescribed for release of vehicle to

interim custody. In the absence of procedure evolved for release

of vehicle also, the matter has to be considered by the Larger

Bench. In the case on hand, the question involved is in respect

of conveyance and not narcotic drugs substances. Hence, the

office is directed to place this matter before the Hon'ble Chief

Justice to refer this matter also to the Large Bench in view of the

order passed in Crl.R.P.No.623/2020 to take up the matter

before the Larger Bench, since the issue involved in the matter is

similar in nature.

Sd/-

JUDGE

PYR/MD