Madras High Court
Nahoorkani vs The State on 16 June, 2023
Crl.R.C(MD)No.41 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.41 of 2019
Nahoorkani ... Petitioner/Petitioner
Vs.
The State,
Represented by the Inspector of Police,
Puliyangudi Police Station,
Tirunelveli District.
(Crime No.387 of 2018). ... Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records of the learned
Additional District Judge/Principal Sessions Court/Special Court for
E.C and NDPS Act Cases, Madurai in Cr.M.P.No.137 of 2019, dated
22.01.2019 and to set aside the same and further direct the learned
Additional District Judge/Principal Sessions Court/Special Court for
E.C and NDPS Act Cases, Madurai to grant interim custody of the
vehicle, a Jeep viz., Mahindra – Thar bearing Registration
No.KL-31-E-9699 to the petitioner.
For Petitioner : Mr.M.Ramesh
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
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Crl.R.C(MD)No.41 of 2019
ORDER
This revision has been filed as against the order passed
in Cr.M.P.No.137 of 2019, dated 22.01.2019 on the file of the
learned Additional District Judge/Principal Sessions Court/Special
Court for E.C and NDPS Act Cases, Madurai, thereby dismissed the
application filed under Section 451 of Cr.P.C to return the vehicle
bearing Registration No.KL-31-E-9699.
2.The learned counsel appearing for the petitioner would
submit that the petitioner is the owner of the said vehicle and he
has been implicated as the second accused in Crime No.387 of 2018
for the offences under Section 8(c) r/w 20(b)(ii)(B) and 25 of NDPS
Act. On 30.11.2018, the respondent arrested the petitioner and
seized his vehicle. Hence, the petitioner filed an application in
Cr.M.P.No.137 of 2019 on the file of the learned Additional District
Judge/Principal Sessions Court/Special Court for E.C and NDPS Act
Cases, Madurai, to return the said vehicle under Section 451 of
Cr.P.C and the trial Court dismissed the said petition. Hence, the
present revision.
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3.The learned Additional Public Prosecutor appearing for
the respondent would submit that the petitioner is arraigned as the
second accused in Crime No.387 of 2018 and the vehicle owned by
him was also involved in the crime. Therefore, the petitioner was
arrested and the vehicle was seized along with contraband. The
petition filed under Section 451 of Cr.P.C is not at all maintainable
for the release of the property when the petitioner's vehicle was
seized along with contraband under the NDPS Act. If at all any
grievance over the seizure of the vehicle from the petitioner, he can
very well approach the trial Court under Sections 60 and 63 of the
NDPS Act.
4.Heard the learned counsel appearing on either side
and perused the materials available on record.
5.The petitioner is an accused in Crime No.387 of 2018
registered for the offences under Section 8(c) r/w 20(b)(ii)(B) and
25 of NDPS Act. The case of the prosecution is that the petitioner
was found in possession of Ganja in his vehicle bearing Registration
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No.KL-31-E-9699. On registration of the F.I.R, the vehicle was
seized along with the contraband from the custody of the petitioner.
While pending investigation, the petitioner filed a petition for return
of property under Section 451 of Cr.P.C. It was dismissed on the
ground that the petitioner suppressed the fact that earlier the
vehicle was involved in a similar offence and it was returned on
condition that the petitioner shall not use the vehicle and indulge in
any crime. The said fact was suppressed and filed a petition for
return of property.
6.The point for consideration in this revision is that
whether the petition filed under Section 451 of Cr.P.C for return of
vehicle is maintainable or not?
7.The Narcotic Drugs and Psychotropic Substances Act,
1985 was enacted consolidating and amending the provisions for
the control and regularization of operating relating to the Narcotic
Drugs and Psychotropic Substances under the Opium Act, 1878 and
the Dangerous Drugs Act, 1930. This Act was amended once in the
year 1989 and subsequently in the year 2001. During the
implementation of the Narcotic Drugs and Psychotropic Substances
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(Amendment) Act, 2001, certain anomalies have been noticed. It is
proposed to rectify those anomalies and make certain further
changes to strengthen the provisions of the Act by the Indian
Parliament Act No.16 of 2014. Accordingly, the Narcotic Drugs and
Psychotropic Substances (Amendment) Act, 2014, came into force
on 07th March, 2014 and was published in the Gazette of India,
Extraordinary, Part II Section 1, No.17, dated 10th March, 2014.
Accordingly, Section 52A of the Principal Act amended and the
provision under Section 52A of the Principal Act is as follows:-
“In Section 52A of the Principal Act.-
(a) for sub-Section (1), the following
sub-Section shall be substituted, namely:-
(1) The Central Government may,
having regard to the hazardous nature,
vulnerability to theft, substitution, constraint of
proper storage space or any other relevant
consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic
substances, controlled substances or
conveyance or class of narcotic drugs, class of
psychotropic substances, class of controlled
substances or conveyances, which shall, as soon
as may be after their seizure, be disposed of by
such officer and in such manner as that
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Government may, from time to time, determine
after following the procedure hereinafter specified.
(b) In sub-Section (2)-
(i) for the words “narcotic drug or
psychotropic substance” and “narcotic drugs or
psychotropic substances”, wherever they occur, the
words “narcotic drugs, psychotropic substances,
controlled substances or conveyances” shall be
substituted;
(ii) In clause (b), for the words “such drugs
or substances”, the words “such drugs, substances
or conveyances” shall be substituted;
(c) in sub-Section (4) for the words “narcotic
drugs or psychotropic substances”, the words
“narcotic drugs, psychotropic substances,
controlled substances or conveyances” shall be
substituted.”
8.The Government of India in the Department of
Revenue, Ministry of Finance have issued instructions regarding the
manner of disposal of the seized narcotic drugs, psychotropic
substances, controlled substances and conveyances. Accordingly,
the instruction was issued to the Head of the Department of each
State, and drug law enforcement agency to constitute one or more
Drug Disposal Committees to dispose of the seized narcotic drugs,
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Crl.R.C(MD)No.41 of 2019
psychotropic substances, controlled substances and conveyances.
Accordingly, the Drug Disposal Committee was formed for each zone
and Chennai City. Accordingly, the Central Government made Rules
by the notification, dated 23.12.2022, as Narcotic Drugs and
Psychotropic Substances (Seizure, Storage, Sampling and Disposal)
Rules, 2022. Rules 16 and 17 of the said Rules says items that can
be disposed of, which reads as follows:-
“16.Items that can be disposed of.
- Having regard to the hazardous nature,
vulnerability to theft, substitution and constraints
of proper storage space, all narcotic drugs,
psychotropic substances, controlled substances
and conveyances, as soon as may be after their
seizure, shall be disposed of in the manner
determined under Section 52A of the Act.
17.Officers who shall initiate action for
disposal.-
Any officer in-charge of a police station or
any officer empowered under Section 53 of the Act
shall initiate action for disposal of narcotic drugs,
psychotropic substances, controlled substances or
conveyances under Section 52-A of the Act after
receipt of chemical analysis report.”
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9.In case of conveyance, the committee shall verify the
engine number, chassis number and other details mentioned in
panchanama and certify the inventory thereof. With regard to the
mode of disposal of conveyances, the seized conveyances shall be
sold by way of tender or auction as may be determined by the Drug
Disposal Committee. Rule 29 of the Narcotic Drugs and Psychotropic
Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022,
reads as follows:-
“29. Repeal and savings. -
(1) The Standing Order No. 1/88, dated
the 15th March, 1988, Standing Order No 2/88,
dated the 11th April, 1988, issued by the Narcotics
Control Bureau, Standing Order No. 1/89, dated the
13th June, 1989, issued by the Government of India,
Ministry of Finance (Department of Revenue), the
notification of the Government of India, Ministry of
Finance (Department of Revenue), published in the
Gazette of India, Extraordinary, Part II, Section 3,
Sub-section (i), vide, number G.S.R.339(E), dated
the 10th May, 2007 and the notification of the
Government of India, Ministry of Finance
(Department of Revenue), published in the Gazette
of India, Extraordinary, Part II, Section 3, Sub-
section (i), vide, number G.S.R.38(E), dated the
16th January, 2015 are hereby repealed.
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(2) Notwithstanding such repeal,
anything done or any action taken or purported to
have been done or taken under any of the Standing
Order or notification repealed by sub-rule (1) shall,
in so far as it is not inconsistent with the provisions
of these rules, be deemed to have been done or
taken under the corresponding provision of these
rules”.
As per Rule 29 of the Rules, 2022, all the earlier Circulars and
Standing Orders were repealed. As per the Rules, Forms were
issued for the disposal of drugs and others etc.
10.In so far as the confiscation is concerned, it is
relevant to extract the provision under Section 63 of the Narcotic
Drugs and Psychotropic Substances Act, 1985, which reads as
follows:-
“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
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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 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,
[or 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 it 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.”
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11.Thus, it is clear that the intention of the legislature is
not to confine its drive to curb the spreading of Narcotic Drugs and
Psychotropic substances to take actions against the carriers but to
strike at the big fish involved in spreading and sustaining the
malady by taking actions against the persons providing facilities for
transportation and stocking of contraband substances as also
confiscating such transport and facilities involved in smuggling of
the case. It is also relevant to extract the provision under Sections
60, 61, 62 and 63 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, which read as follows:-
“60. Liability of illicit drugs,
substances, plants, articles and conveyances lo
confiscation.-
[(1) Whenever any offence punishable
under this Act has been committed, the narcotic drug,
psychotropic substance, controlled substance, opium
poppy, coca plant, cannabis plant, materials, apparatus
and utensils in respect of which or by means of which
such offence has been committed, shall be liable to
confiscation.
(2) Any narcotic drug or psychotropic
substance 3[or controlled substances] lawfully
produced, imported inter-State, exported inter-State,
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Crl.R.C(MD)No.41 of 2019
imported into India, transported, manufactured,
possessed, used, purchased or sold along with, or in
addition to, any narcotic drug or psychotropic
substance [or controlled substances which is liable to
confiscation under sub-section (1) and there
receptacles, packages and coverings in which any
narcotic drug or psychotropic substance [or controlled
substances, materials, apparatus or utensils liable to
confiscation under sub-section (1) is found, and the
other contents, if any, of such receptacles or packages
shall likewise be liable to confiscation.
(3) Any animal or conveyance used in
carrying any narcotic drug or psychotropic substance
3[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.
61. Confiscation of goods used for
concealing illicit drugs or substances.-
Any goods used for concealing any
[narcotic drug, psychotropic substance or controlled
substance which is liable to confiscation under this Act
shall also be liable to confiscation.
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62.Confiscation of sale proceeds of
illicit drugs or substances.-
Where any [narcotic drug, psychotropic
substance or controlled substance] is sold by a person
having knowledge or reason to believe that the drug or
substance is liable to confiscation under this Act, the
sale proceeds thereof shall also be liable to
confiscation.
“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 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
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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
coca plant or cannabis, plant is liable to speedy and
natural decay, or if the court is of opinion that it 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.
12.Further, the provision under Section 63 of the NDPS
Act is clear that the decision regarding confiscation had got to be
taken during the trial and not after it and the right of the State to
confiscate the conveyance and articles or things seized under this
Act is irrespective of the result of the trial. In view of the provision
under Section 63 of the Act, the provisions of the Code of Criminal
Procedure as contained in Sections 451 and 452 will stand modified
to the extent and any claimant to the property will be obliged to
satisfy the Court in terms of the exceptions carved out in Sections
60, 61 and 62 of the NDPS Act before he is returned the custody of
the vehicle taken into consideration when it was being used for
transporting a narcotic substance. Therefore, when the conveyance
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Crl.R.C(MD)No.41 of 2019
is seized under the NDPS Act, the return of property does not arise
as contemplated under Sections 451 and 452 of Cr.P.C and it is
liable to be confiscated under Section 63 of the NDPS Act. The
Magistrate may not have jurisdiction to entertain a petition filed
under Section 451 of Cr.P.C in the light of the Special Rule made
under Section 52A of the Act.
13.In fact, Section 63 of the Act had provided for a
procedure in making confiscations. It gives the power to the Court
to decide whether any article or thing seized under the Act is liable
to be confiscated in terms of Sections 60, 61 or 62 of the Act.
Before the amendment to Section 52A, the conveyance was not
included as an item which should be seized and disposed of. The
very fact that conveyance had been incorporated in the amendment
itself indicates that the Government intended to provide a special
procedure to deal with such conveyance, while taking into account
the fact that most of the transportation is done in conveyances
which itself is defined under Section 2(viii) as meaning “a
conveyance of any description whatsoever including any aircraft,
vehicle or vessel”. Therefore, if any vehicle is involved in the
transportation of narcotic drug, psychotropic substance or controlled
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Crl.R.C(MD)No.41 of 2019
substance, such vehicles also could be seized and disposed of in
terms of Section 52A(1) of the Act.
14.In the case of Union of India Vs. Mohanlal and
another reported in 2016 (3) SCC 379, the Honourable Supreme
Court of India issued certain directions, which reads as follows:-
“31.To sum up we direct as under:
31.1. No sooner the seizure of any
narcotic drugs and psychotropic and controlled
substances and conveyances is effected, the same
shall be forwarded to the officer in charge of the
nearest police station or to the officer empowered
under Section 53 of the Act. The officer concerned
shall then approach the Magistrate with an
application under Section 52-A(2) of the Act, which
shall be allowed by the Magistrate as soon as may
be required under sub-section (3) of Section 52-A,
as discussed by us in the body of this judgment
under the heading "seizure and sampling". The
sampling shall be done under the supervision of the
Magistrate as discussed in Paras 15 to 19 of this
order.
31.2. The Central Government and its
agencies and so also the State Governments shall
within six months from today take appropriate
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steps to set up storage facilities for the exclusive
storage of seized narcotic drugs and psychotropic
and controlled substances and conveyances duly
equipped with vaults and double-locking system to
prevent theft, pilferage or replacement of the
seized drugs. The Central Government and the
State Governments shall also designate an officer
each for their respective storage facility and
provide for other steps, measures as stipulated in
Standing Order No. 1 of 1989 to ensure proper
security against theft, pilferage or replacement of
the seized drugs.
31.3. The Central Government and the
State Governments shall be free to set up a
storage facility for each district in the States and
depending upon the extent of seizure and store
required, one storage facility for more than one
districts.
31.4. Disposal of the seized drugs
currently lying in the Police Malkhanas and other
places used for storage shall be carried out by the
DDCs concerned in terms of the directions issued
by us in the body of this judgment under the
heading "disposal of drugs".
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15.However, the above procedures are not followed by
the Special Courts to confiscate the conveyance which is used in
drug trafficking as contemplated under Sections 52(A) and 63 of the
NDPS Act. Therefore, the accused or the owner of the conveyance
are constrained to file a petition under Section 451 of Cr.P.C to
return their conveyance. Hence, this Court is constrained to issue
the following directions to the trial Courts and the Investigating
Officers.
16.Accordingly, this Criminal Revision Case is disposed
of with the following directions to the Special Courts and the
Investigating Officers with regard to the disposal of conveyances
seized under the NDPS Act, 1985:-
“(i) Immediately after seizure of
conveyance, the Investigating Officer shall ascertain
the ownership and hypothecation details, if any, of
the seized conveyance from the concerned
Registering Authority and the details of seizure of
conveyance shall be informed to the concerned
Registering Authority.
(ii) The Investigating Officer shall
approach the Judicial Magistrate/Special Court in
terms of Section 52A(2) of the NDPS Act, 1985, for
certification of the correctness of the inventory and
taking photographs, certification of such
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photographs and photocopies of Registration
Certificate, Insurance, permit, Pollution and other
relevant documents of the conveyance.
(iii) The Investigating Officer shall
prepare an inventory of the seized conveyance in
the format given below:-
Inventory of Seized conveyance
(Under Section 52A(2) of the NDPS Act, 1985)
1) Crime No.
2) Seizing Agency
3) Seizing Officer
4) Date of Seizure
5) Place of Seizure
6) Found in possession of the
person
7) Registration No.
8) Chassis No.
9) Engine No.
10) Make
11) Model
12) Colour
13) Cubic Capacity
14) Total KM run
15) RTO Detail
16) Ownership Details
17) Hypothecation Details
18) Insurance Details
19) Fast Tag Details
20) Name and Designation of
the officer prepare the
inventory
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(iv) With permission of the Magistrate
for taking photographs of the conveyance which
stationed at warehouse or any other place. The
photographs of the cavities made in the vehicle
shall be covered specifically. It also shall contain
chassis number and engine number etc.
(v) In terms of S. 52 A (2) of the NDPS
Act, 1985 r/w notification G.S.R. 899(E) dated
23.12.2022, no separate order is required for
disposal of seized vehicle. The inventory, certified
photographs and certified copies of Registration
Certificate and other relevant documents would be
forwarded to the trial court for treating it as primary
evidence.
(vi) The Investigation Officer send the
copy of the inventory and other case documents,
Panchnama/seizure memo a set of photographs
shall be forwarded to the concerned Drug Disposal
Committee.
(vii) After receipt of chemical analysis
report, any officer in-charge of a police station / any
officer empowered under section 53 of the act shall
initiate action for disposal of narcotic drugs,
psychotropic substances, controlled substances or
conveyances under section 52-A NDPS Act.
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(viii) The sale proceeds of such
conveyances shall either be deposited in the official
account of DLEA and its proof would be submitted in
the Court or in the form of Fixed Deposit after
deposition in any public sector bank would be
submitted in the Court.
(ix) If the trial Court order
confiscation/forfeiture of the conveyance to the
Department, the Department shall forfeit the sale
proceeds along with accrued interest in the manner
known to law.
(x) If the vehicle is not
confiscated/forfeited to the Department, if the
Department does not challenge the order in
Appellate Forum, then such sale proceed would be
released to the rightful owner with accrued interest
under intimation of the Court.
(xi) Any person claiming the ownership
of the conveyance, he may approach the concerned
Drug Disposal Committee directly and make his
claim. On such application Drug Disposal
Committee concerned before taking decision on the
disposal of the vehicle, shall grant opportunity of
hearing to the parties and pass appropriate orders
on the representation made by the party in
accordance with law as expeditiously as possible,
within a period of 2 months.
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(xii) If any persons approach the Trial
Court for release of vehicle, in case the property
already produced before the trial court and assigned
R.P.No. Then such court shall conduct enquiry and
pass suitable orders as contemplated u/s 63 of
NDPS Act or if the vehicle not produced before the
court then competent court shall pass appropriate
order by directing the Petitioner to approach
concerned Drug Disposal Committee for getting
suitable relief.
(xiii) All the trial courts/special court for
NDPS, irrespective pending trial if they release the
vehicle under section 451 of Cr.P.C, shall initiate
the proceedings confiscation and dispose the vehicle
as contemplated under section 63 of NDPS Act.
17.The learned Additional Public Prosecutor submitted
that humpty's number of vehicles which are involved in the NDPS
Act are not claimed so far either by the owner/accused. All the
unclaimed vehicles are lying in the concerned Police Station and
they are decades due to weather. Therefore, the Director General of
Police, Chennai is directed to collect the data with regard to
unclaimed vehicles and returned vehicles from the respective zone
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in Tamil Nadu once in two months and report before this Court once
in three months.
18.In the case on hand, though the Magistrate
dismissed the petition filed for return of property on other ground,
the petition itself filed under Section 451 of Cr.P.C is not all
maintainable when the vehicle was seized under the NDPS Act.
19.Post the matter under the caption “for reporting
compliance” on 27.09.2023.
16.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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To
1.The Additional District Judge/
Principal Sessions Court/
Special Court for E.C and NDPS Act Cases,
Madurai.
2.The Inspector of Police,
Puliyangudi Police Station,
Tirunelveli District.
Registry is directed to issue copy to the following
concerned Courts and the officials:-
3.All the trial Courts exercising the
Jurisdiction under NDPS Act.
4.The Director General of Police,
Chennai.
5.All the Commissioner of Police,
Tamil Nadu.
6.All the Inspector General of Police,
Tamil Nadu.
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Crl.R.C(MD)No.41 of 2019
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.41 of 2019
16.06.2023
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