Karnataka High Court

Kawal Jeet Kaur vs The State Of Karnataka on 5 August, 2024

Author: K Natarajan

Bench: K Natarajan

                                            -1-
                                                         NC: 2024:KHC-K:5691
                                                   CRL.P No. 200895 of 2024




                              IN THE HIGH COURT OF KARNATAKA

                                    KALABURAGI BENCH
                                                                       ®
                          DATED THIS THE 5TH DAY OF AUGUST, 2024

                                          BEFORE
                           THE HON'BLE MR JUSTICE K NATARAJAN

                       CRIMINAL PETITION NO.200895 OF 2024 (482)
                   BETWEEN:

                   KAWAL JEET KAUR
                   W/O JANG BAHADUR SINGH,
                   AGE: 69 YEARS,
                   OCC: BUSINESS,
                   R/O 3/201, LIC FLAT, SECTOR NO.6,
                   VIDYA NAGAR, JAIPUR,
                   RAJASTHAN-302039,
                   REPRESENTED BY HER POWER OF ATTORNEY,
                   HOLDER SRI. RAJESH SHARMA
                   S/O SHRI. SHYAM SUNDAR SHARMA,
                   AGE: 42 YEARS,
                   OCC: PRIVATE SERVICE,
                   R/O G22, GANESH NAGAR,
                   NEAR GAYATRI NAGAR,
Digitally signed
by KHAJAAMEEN      HARMANDA,
L MALAGHAN         JAPUR (RAJASTHAN)-302039.
Location: High                                                 ...PETITIONER
Court Of
Karnataka          (BY SRI. RAJESH DODDAMANI, ADVOCATE)

                   AND:

                   THE STATE OF KARNATAKA
                   THROUGH EXCISE RANGE OFFICE, INDI,
                   NOW REPRESENTED BY THE ADDL. SPP,
                   HIGH COURT OF KARNATAKA,
                   KALABURAGI BENCH-585103.
                                                              ...RESPONDENT
                   (BY SRI. JAMADAR SHAHABUDDIN, HCGP)
                             -2-
                                       NC: 2024:KHC-K:5691
                                  CRL.P No. 200895 of 2024




     THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C.
PRAYING TO ALLOW THIS PETITION AND QUASH ORDER
DATED 10.07.2024 PASSED BY THE HON'BLE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, VIJAYAPURA PASSED IN
CRIMINAL MISC. NO. 981/2024 VIDE ANNEXURE-K AND
CONSEQUENTLY ALLOW THE APPLICATION FILED U/S. 457 OF
CR.P.C., WHICH IS AT ANNEXURE-E AND CONSEQUENTLY
RELEASE THE ARTICLES SEIZED BY THE EXCISE RANGE
OFFICE, INDI IN CRIME NO. 105/2023-24/1006IE/100606 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 20(b)(II)(B),
25,61,8(B),8(C), 15(C) AND 18(C) OF NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, NOW PENDING ON
THE FILE OF THE HON'BLE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, VIJAYAPURA.

    THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:   HON'BLE MR JUSTICE K NATARAJAN


                      ORAL ORDER

(PER: HON'BLE MR JUSTICE K NATARAJAN)

This petition is filed by the petitioner/RC holder of

the vehicle under Section 482 of Cr.P.C. for setting aside

the order passed by the Prl. District and Sessions Judge,

Vijayapura dated 10.07.2024 in Crl.Misc. No.981/2024,

having dismissed the application under Section 457 of

Cr.P.C. and release the vehicle, which was seized by the

Excise Range Office in Crime No.105/2023-

NC: 2024:KHC-K:5691

24/1006IE/100606 for offences punishable under Sections

15(c), 18(c), 20(b)(ii)(B), 25, 61, 8(b), 8(c) of NDPS Act.

2. Heard the arguments of learned counsel for the

petitioner and learned HCGP for the State.

3. The case of the prosecution is that the

petitioner is the owner of the goods container vehicle

bearing registration No.RJ-14/GG-4191 and he is engaged

in the profession of transportation of goods from different

parts of the country and the vehicle in question was hired

by the Royal India Roadways for transportation of

garments. Accordingly, garments were sent along with 12

invoices from Ludhiana, Panjab to Tripura and Coimbatore,

Tamil Nadu. When the vehicle was passing near the

jurisdiction of Shiradon check post, the vehicle was

intercepted and on verification, the Excise Inspector found

10 plastic bags kept below the seat of the driver, which

contained opium and Ganja, which was seized and an FIR

was registered against the driver of the vehicle. The

vehicle along with the Narcotic Drugs was seized and the

matter was under investigation. The driver/accused was

NC: 2024:KHC-K:5691

remanded to judicial custody. Later on, the accused was

enlarged on bail by the Trial Court. The petitioner being

the RC holder of the vehicle filed an application under

Section 457 of Cr.P.C. before the Special Court for interim

custody of the vehicle, which came to be rejected. He filed

another application before the Drugs Disposal

Committee(DCC), they have also given endorsement

seeking clarification from the Commissioner of Excise,

Bangalore. Therefore, the petitioner is before this Court.

4. Learned counsel for the petitioner contended

that the DCC is not releasing the vehicle, which has

nothing to do with the offence committed by the driver of

the vehicle under the NDPS Act. The vehicle in question

was hired by some private party for transporting their

goods. The accused/driver committed an offence by

transporting the drugs, without the knowledge of the

owner of the vehicle. Yet, the DDC is not releasing the

vehicle. The petitioner has placed reliance of the decision

of a Division Bench of this Court in Crl.RP.No.623/2020

NC: 2024:KHC-K:5691

holding that the Courts have power to release the vehicle

for interim custody. Hence, he prays to allow this petition.

5. Learned HCGP has objected to this petition and

has filed a report from the Investigating Officer, whereas

he has raised objections that, if the vehicle is released, he

my use it for commission of other offences, he may use it

for absconding and he may sell it. This would delay the

proceedings and hence, he prays to dismiss this

application.

6. Having heard both the counsel and perused the

records, the following points would arise for consideration:

i) Whether the Sessions Judge being the Special Court under the NDPS Act, is empowered to release the vehicle in view of the judgment of the Division Bench of this Court in Crl.RP.No.623/2020?

ii) Whether there is any bar for releasing the vehicle by the Court or Magistrate under Sections 451 and 457 of Cr.P.C. (At present Sections 497 and 503 of BNSS,2023).

NC: 2024:KHC-K:5691

7. The accused/driver of the lorry, who took the

lorry bearing registration No.RJ-14/GG-4191 from Panjab

to Tamil Nadu for delivering garments as per the 12

invoices produced, was intercepted near the Shiradon

check post by the Excise Department and they found

opium and Ganja, which were hid under the seat of the

driver. While registering FIR and in the Panchanama, the

accused/driver revealed that he was transporting the

narcotic drugs without the knowledge of the owner of the

vehicle. Hence, it appears that the vehicle in question has

nothing to do with the transportation of narcotic drugs.

8. Now the question arises whether the Courts

have the power to release the vehicle in question. In this

regard, Division Bench of this Court in Crl.RP.No.623/2020

has elaborately held that the Court has the power to

release the properties as per the notification

No.F.No.V/2/2004-NC.II(L) issued by the Central

Government dated 16.01.2015, there is no second opinion

with regard to the power of the Court stated by the

Division Bench of this Court.

NC: 2024:KHC-K:5691

9. Learned Session Judge has rejected the

application on the ground that the Central Government

has issued a new or fresh notification dated 23.12.2022,

vide which, the notification dated 16.01.2015 is repealed.

10. I am of the considered opinion that the order of

the Trial Court is not correct and it is misconception of the

law and rules or notification dated 23.12.2022. A perusal

of the notification dated 16.01.2015 would go to show that

there is no rules framed for release of the vehicle for

interim custody. The Division Bench of this Court in the

aforesaid case has held as follows in para Nos.58 and

59(ii):

"58. In the judgments relied upon by the learned Counsel for the respondents in the case of Shajahan -vs- In Inspector of Excise and Others reported in 2019 SCC On Line Kerala 3685 (DB) (paragrapi-3) and Union of India - vs- Mohanlal and Another reported in. (2016)3 SCC 379, there was no occasion to consider the application for release of the interim custody of the vehicle (conveyance) and in that view of the matter, the said judgment relied upon by the learned Counsel for the respondents to the effect that Drug Disposal Committee has power and not the Magistrate or the Special Court under the NDPS Act, have no application to the facts and circumstances of the present petitions".

NC: 2024:KHC-K:5691

"59. For the reasons stated above, we answer the Reference as under:

i)The Magistrate or the Special Court is conferred with the power/jurisdiction to Consider the application for interim custody of the conveyance/vehicle under the provisions of Sections 451 and 457 of the Code of Criminal Procedure in cases arising out of the provisions of NDPS Act; and

ii) The Drug Disposal committee constituted under the Notification dated 16.1.2015 issued by the Central Government under the provisions of Section 52A of the NDPS Act has no authority to consider the application for release of interim custody of the conveyance/vehicle;"

11. Based upon order of the Division Bench of this

Court, the Courts started disposing the applications under

Sections 451 and 457 of Cr.P.C. But, in view of the fresh

notification issued by the Central Government dated

23.12.2022, though, the earlier notification dated

16.01.2015 has been repealed, there is no clarification for

release of the vehicle for interim custody. These rules

were framed by the Central Government by exercising the

power under Section 76 r/w 52(a) of the NDPS Act. The

Central Government has power under Section 76 of the

NDPS Act for framing of rules and Section 52(a) provides

NC: 2024:KHC-K:5691

guidelines for disposal of the seized narcotic drugs and

psychotropic substances. The Central Government has

issued new notification only for further clarification. But,

there is no clarification in respect of the release of the

vehicle for interim custody.

12. Section 60(3) and Section 63 of the NDPS Act

read as under:

"Section 60(3): Any animal or conveyance used in carrying any narcotic drug or

psychotropic substance [or controlled substances], 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."

"Section 63: 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."

- 10 -

NC: 2024:KHC-K:5691

13. A bare reading of Section 63 would go to show

that the confiscation order shall be passed by the Trial

Court. In this case, the trial is not yet begun. The DDC is

meant for disposing the drugs and for release of

conveyance, there is no rule framed by the Central

Government for release of the vehicle for interim custody

either in the earlier notification dated 16.01.2015 or the

new notification dated 23.12.2022.

14. Such being the case, the judgment of the

Division Bench of this Court in the aforesaid case

continues to apply, even to the present notification dated

23.12.2022. Therefore, the Special Court/Magistrate has

power to release the vehicle in question for interim

custody under Sections 451 and 457 of Cr.P.C. and the

owner of the shall take defence and he shall prove that the

vehicle was used without his knowledge by the person

transporting the drugs. Such being the case, until the

conclusion of the case, whether with or without the knowledge

of the owner, the driver transported the drugs, the conviction

or acquittal or discharge will not come in the way of

- 11 -

NC: 2024:KHC-K:5691

confiscation of drugs and in respect of the conveyance, it has to

be decided by the trial Court.

15. Therefore, I am of the view that the Trial Court has

committed an error in dismissing the application holding that it

has no power. On the other hand, the judgment of the Division

Bench of this Court is applicable for the release of the vehicle

for interim custody. The Court always has the power for release

of the vehicle for interim custody, till disposal of the main case.

Therefore, I am of the view that the order passed by the Trial

Court is liable to set aside.

ORDER

Accordingly, the petition is allowed. The order of the Sessions Judge passed under Section 457 of Cr.P.C. is hereby set aside. The application filed by the petitioner is allowed. The concerned authority/DDC/RO is hereby directed to release the vehicle along with the goods shifted under 12 invoices to the interim custody of the petitioner, subject to the following conditions:

(i) The petitioner shall execute indemnity bond for Rs.15.00 lakhs with two sureties for the likesum to satisfaction of the Trial Court/investigation officer.