Kerala High Court
Shilpa.I.G vs State Of Kerala on 14 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
Crl.MC.No.4914 OF 2019(D)
AGAINST THE ORDER IN CMP NO.5398 OF 2018 IN CC No.841/2018 DATED
29-12-2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA.
PETITIONER:
SHILPA.I.G.
AGED 40 YEARS,
D/O. I K GOPI,
ILLATHUPARAMBIL HOUSE, KEEZHUNNA, THOTTADA, KANNUR.
BY ADVS.
SRI.ASHIS KORATTYSWAROOPAM,
SHRI.AKHILESH A.K.
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE SHO KUTHUPARAMBA, THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
SR PP SRI D.CHANDRASENAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
14.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.4914/2019(D) 2
C.R
ORDER
Dated this the 14th day of January, 2021.
This Crl.M.C is filed challenging an order passed by Judicial
First Class Magistrate Court, Kuthuparamba ( for short, 'the court
below') in C.M.P No.5398/2018 in C.C No.841/2018. By the order,
the court below has dismissed the application filed by the
petitioner under Section 452 Cr.P.C for getting the custody of the
vehicle released in her favour.
2. The averments of the petitioner in C.M.P
No.5398/2018 filed for the purpose were that she was the owner of
the vehicle bearing Registration No. KL-13-AJ-3354, which was
allegedly involved in an offence punishable under the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS
Act), that she has no involvement in the offence with reference to
which the vehicle was seized, that the accused in the case has
pleaded guilty and that he was convicted and sentenced for the
offence on 31.08.2018. It is averred by the petitioner that a notice
under Sub section (3) of Section 60 of the NDPS Act had been
given to her as a pre-step for disposal of the property in C.C
No.841/2018. Responding to the notice, she has filed an affidavit
stating that the vehicle was not used by her for transportation of
Ganja but was given to the accused, a friend of her husband only
for his personal use. The court after verification of the case records
found that 48 grams of Ganja was seized from the possession of the
accused while he was traveling in the aforesaid motorcycle. In the
FI Statement lodged, it was alleged that the accused was sitting on
the motorcycle and on noticing the approach of the Police to him,
he had attempted to escape by starting the motorcycle. In the
search held in his body, six packets of Ganja were recovered. The
vehicle was also examined and, one packet containing Ganja kept
concealed in its battery was also seized. Thus altogether 48 grams
of Ganja was seized from the possession of the accused. Therefore,
alleging that the vehicle was used for transportation of Ganja, a
crime was registered against him and after holding investigation,
he was chargesheeted for illegal possession of Ganja.
3. On entering appearance itself the accused pleaded
guilty and was convicted and sentenced. In that context, the owner
of the vehicle has approached this Court by filing C.M.P
No.5398/2018 under Section 452 Cr.P.C for getting the vehicle
released to him.
4. Section 60 of the NDPS Act deals with the liability of
illicit drugs, substances, plants, articles and conveyances to
confiscation. Section 61 deals with confiscation of goods used for
concealing illicit drugs or substances. Section 62 deals with
confiscation of sale proceeds of illicit drugs or substances and
Section 63 deals with procedure while making confiscations.
5. Section 63 of the NDPS Act being relevant in the
context is extracted hereunder;
"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 decide such liability,
and may order confiscation accordingly:
PROVIDED that no order for 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, or
controlled substance, the opium poppy, cocoa 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. '' (Emphasis
supplied)
6. The 1st proviso to Section 63 of the NDPS Act says that
an order of confiscation of an article or thing shall not be made
until expiration of one month from the date of seizure, or without
hearing any person who may claim any right thereto and evidence,
if any, which he may produce in respect of his claim.
7. In the case on hand, the vehicle having been found
involved in transportation of Ganja, undoubtedly is liable to
confiscation. But proviso to Section 63 says that an order to
confiscate the vehicle can only be issued after hearing a person who
claims to have any right over the vehicle and appreciating any
materials produced by her to establish her claim.
8. Admittedly, a notice under sub-section (3) of Section
60 of NDPS Act was served on the petitioner and she has filed an
affidavit stating that the vehicle was not used for transportation of
Ganja and had given the vehicle to the accused for his personal use
and the accused is a friend of her husband.
9. Sub-Section (3) of Section 60 of NDPS Act provides for
the kind of the enquiry required while ordering confiscation of a
conveyance used in carrying any of the Narcotic Drugs or
Psychotropic Substances and inorder to have a clear idea, it is
extracted hereunder:-
"60. Liability of illicit drugs, substances, plants,
articles and conveyances to confiscation.-
(1) xxxxx
(2) xxxxx
(3) Any animal or conveyance used in carrying any narcotic
drug or psychotropic substance 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." (Emphasis supplied)
Therefore, a vehicle shall be liable to confiscation unless the
owner of it proves that;
1. it was used without his knowledge or connivance or that
of his agent and the person in charge of it and
2. each of the persons referred thereto had taken all
reasonable precautions against use of it in the offence.
10. Sub-section (1) of Section 63 provides that, whether the
accused is convicted or acquitted or discharged, the court shall
decide, whether any article or thing seized in the case under the Act
is liable to confiscation and if it decides that the article or thing is
so liable, it may order confiscation.
11. 1st proviso to sub-section (1) of Section 63 provides that
an order of confiscation of an article or thing shall not be made
until the expiry of one month from the date of its seizure, or
without hearing any person who may claim any right thereto and
appreciating the evidence, if any, which he produces in respect of
his claim. Sub-section (3) of Section 60 provides that any vehicle
used in carrying any narcotic drugs shall be liable to confiscation
unless the owner of the conveyance proves that it was so used
without his knowledge or connivance, that of his agent, if any and
that of the person in charge of the conveyance and that each of
them had taken all reasonable precautions against such use. The
overall effect of the above provisions is that after passing an order
of conviction, acquittal or discharge as the case may be, the court
holding the trial shall decide on the liability of the vehicle proved as
used by the accused for transportation of the Ganja, for
confiscation, if the vehicle used belongs to another person, the
latter must be served with notice and reasonable opportunity of
hearing must be afforded to him to establish that he or his agent or
other person, who was in charge of it at the relevant time had taken
all reasonable precautions against the use of the vehicle in the
transportation of Ganja and it was used by the accused without
knowledge or connivance of the owner or other persons referred to
above. Only when the owner of the vehicle failed to establish the
above, the vehicle shall be ordered to be confiscated. Therefore, if
the article or thing seized in a case involving narcotic drugs or
psychotropic substances is established as belongs to the accused
himself in the trial held against him, the trial court shall decide on
the liability of those to confiscation in the very same proceedings
itself and record its finding on it in the judgment itself.
12. Whereas the article or thing seized in the case belongs
to another person, after passing of an order of discharge in favour
of the accused or passing of a judgment either of conviction or
acquittal after holding trial, notice must be issued to the owner of
the article or thing, at the relevant time of commission of the
offence by the accused and an independent enquiry must be held
simultaneous to the passing of the order or judgment as above by
affording him with reasonable opportunity of being heard.
13. In the case on hand, as stated in the impugned order, a
notice has been issued to the petitioner to show cause against the
proposed confiscation and admittedly she has filed an affidavit.
But the trial court failed to conduct any enquiry into the relevant
aspects as contemplated under Sub-Section (3) of Section 60 and
1st proviso to Section 63 of the NDPS Act. The court below ought
to have granted the petitioner, who is the owner of the vehicle and
not an accused in the case, reasonable opportunity of being heard.
The court below has passed the impugned order in an application
filed by the owner of the vehicle for getting custody of it under
Section 452 Cr.P.C, directing confiscation of the vehicle without
holding an enquiry as contemplated under provisions discussed
above. The court below observed in the impugned order that the
petitioner failed to establish the relevant aspects envisaged under
sub-section (3) of Section 60 of NDPS Act without affording him
reasonable opportunity to establish. The impugned order suffers
for the reasons stated above.
In the result, Crl.M.C stands allowed. The impugned order is
set aside. The court below shall decide on the liability of the
vehicle to confiscation after initiating an independent enquiry,
affording reasonable opportunity to the petitioner to adduce
evidence to establish lack of knowledge or connivance of herself,
her agent, if any and the person in charge of the vehicle at the
relevant time, about the use of the vehicle in the offence alleged
and the reasonable precaution taken by each of them against use of
it by the accused in the transportation of Ganja.
Sd/-
MARY JOSEPH
JJ JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE 1 A TRUE COPY OF THE FIR IN CRIME NUMBER
429 OF 2018 OF KUTHUPARAMBA POLICE
STATION.
ANNEXURE II CERTIFIED COPY OF THE ORDER IN CMP
NO.5398 OF 2018 IN CC NO.841 OF 2018
ON THE FILES OF THE JUDICIAL FIRST
CLASS MAGISTRATE, KUTHUPARAMBA.
//TRUE COPY//
Sd/-
PA (GR II) TO JUDGE
