Madras High Court
Mohammed Asif vs The State Represented By Its Inspector ... on 9 January, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1831 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.10.2024
PRONOUNCED ON : 09.01.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1831 of 2024
Mohammed Asif ... Petitioner
Vs.
The State Represented by Its Inspector of Police,
D3- Ice House Police Station,
Chennai-600005. ... Respondent
PRAYER: Criminal Revision Petition filed under Section 438 r/w 442 of BNSS,
to call for the records pertaining to the order dated 20.09.2024 in
Crl.M.P.No.9838 of 2024 by the Principal Special Court under EC & NDPS
Act, Chennai and set aside the same.
For Petitioner : Mr.P.Santhosh
For Respondent : Mr.Hasan Mohammed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Additional Public Prosecutor
ORDER
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Challenging the order of dismissal dated 20.09.2024 in Crl.M.P.No.9838
of 2024 passed by the learned Principal Special Judge, Principal Special Court
under EC & NDPS Act, Chennai, the petitioner, who is the owner of the mobile
phone viz., OnePlus Nord CE 2 Lite 5G, seized in Crime No.129 of 2024, is
before this Court with the present revision, for return of property.
2.The learned counsel for the petitioner submitted that the petitioner is the
owner of the mobile phone viz., OnePlus Nord CE 2 Lite 5G and a third party to
the case. He further submitted that A1 in this case is the mother of the
petitioner and the petitioner is no way connected with the offence. The
respondent Police registered an FIR in Crime No.129 of 2024 on 07.05.2024 for
the offences under Sections 8(c) r/w 20(b)(ii)(B) and 29(1) of Narcotic Drugs
and Psychotropic Substances Act against the petitioner's mother Rahamath
Nisha/A1 and Saiyath Mushtaq Basha/A2 and seized the above said mobile
phone from the petitioner's mother/A1. He further submitted that the petitioner
is a college student and he requires the said mobile phone for his day to day
usage more particularly for his education. Since he hails from a poor family and
his financial condition is such that, he cannot buy another new mobile phone.
Hence he filed a petition for return of property before the Trial Court but the
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Trial Court negatived the petitioner's contention since the case is under
investigation stage and if the mobile phone is returned to the petitioner, it may
be used to commit similar kind of offences, is not proper. According to the
learned counsel for the petitioner, though the mobile phone of the petitioner
projected as part of the crime and it was used by the petitioner's mother in
creating Whatsapp group for trafficking and peddling contraband, there is
nothing to show that the investigation is on that line. On the other hand, the
mobile phone was not sent for forensic examination to collect any electronic
evidence.
3.The learned State Public Prosecutor appearing for the respondent Police
filed counter and submitted that on 07.05.2024 at about 16.00 hours, the Sub
Inspector of Police attached to the respondent Police received secret information
that the petitioner's mother and another accused were illegally transporting
Ganja and peddling the same within her jurisdiction. The Sub Inspector of
Police informed her higher officials, got permission and had gone to Ramasamy
Street near Kanmani Hospital where she found A1 and A2 came in two wheeler
viz., Honda Activa bearing Reg.No.TN-06-AC-3911, parked the two wheeler in
front of the hospital and were standing with Velvet colour bag and black colour
bag. On seeing the Police team, they attempted to escape from the scene, but
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they were caught by the Police team and the Police team informed their right
and conducted search. From the petitioner's mother, 279 grams of ganja and
from A2, 1.100 kilograms of ganja, in total 1.27 kilograms of ganja, two mobile
phones one OPPO and another Oneplus, cash of Rs.30,300/- and two wheeler all
seized. Thereafter, the accused arrested and produced before the learned
Principal Special Judge who received the seized articles and assigned case
property number in A.No.610 of 2024 and B.No.358 of 2024, dated 13.05.2024.
Thereafter, the samples were sent for forensic examination who confirmed it as
ganja. He further submitted that the petitioner's mother from the year 2017
onwards, actively involved in criminal activities and she has got five previous
cases under the NDPS Act, out of which, three cases are pending trial, one case
is under investigation and in one case, investigation completed, charge sheet
filed, but yet to be taken on file. The Trial Court dismissed the return of
property petition for the reason investigation not completed.
4.The learned State Public Prosecutor vehemently opposed the
petitioner's petition for return of property in a NDPS Act Case invoking
Sections 457 and 451 of Cr.P.C. As per the Act, the seized articles are liable for
confiscation under Section 52-A, 60, 61 and 63 of NDPS Act., unless the owner
of the conveyance proves that the conveyance was used without his knowledge
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and connivance, he has taken all reasonable precaution against such use. In
support of his contention, the learned State Public Prosecutor relied on the
Judgment of the Hon'ble Apex Court in the case of Suresh Nanda Vs. Central
Bureau of Investigation reported in (2008) 3 SCC 674 to stress the point that,
where there is a special Act dealing with subject, resort should be to that Act
instead of general Act providing for the matter connected with the specific Act.
He stressed his argument mainly on Union of India Vs. Mohanlal and Another
reported in (2016) 3 SCC 379, wherein the Apex Court has given directions for
storage, seizure and sampling, handling and disposal of seized narcotic drugs
and psychotropic substances. Considering the piquant situation in which
accumulation of huge quantities of seized drugs and narcotics increased the
chances of their pilferage for re-circulation in the market and also finding that
despite Central Government Standing Order No.1/1989 and two subsequent
Standing Orders, dated 10.05.2007 and 16.01.2015 giving directions, directing
that no sooner seizure of any narcotic 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 and Section 52-A(2) of the Act. The sampling shall be
done under the supervision of the Magistrate and the Central and State
Government and its agencies within six months from the date of the order take
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appropriate steps to set up storage facilities for the exclusive storage of seized
narcotic and psychotropic substances and conveyances, duly equipped with
vaults and double-locking system to prevent theft, pilferage or replacement of
the seized drugs. Further, the Apex Court given direction to constitute Drug
Disposal Committee and disposal of seized drugs lying in the Police Malkhanas
and other places used for storage of drugs and psychotropic substances.
5.The learned State Public Prosecutor would further submit that this
Court in Crl.R.C(MD)No.41 of 2019 in the case of Nahoorkani Vs. The State
of Tamil Nadu on 16.06.2023 held that when the conveyance is seized under
NDPS Act, the return of property does not arise as contemplated under Sections
451 and 457 of Cr.P.C., and it is liable to be confiscated under Section 63 of
the NDPS Act in the light of special procedure under Section 52-A of the Act.
Any person claiming the ownership or right of the conveyance may approach
the concerned Drug Disposal Committee directly and make claim and the Drug
Disposal Committee before taking a decision on 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 two months. Further, if any persons approach the
trial Court for release of vehicle, the property already produced before the trial
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Court and assigned R.P.Number then such court shall conduct enquiry and pass
suitable orders, as contemplated under Section 63 of the 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. Further, in the event of trial
Court / Special Court for NDPS release the vehicle under Section 451 Cr.P.C.,
shall initiate the confiscation proceedings and dispose the vehicle as
contemplated under Section 63 of the NDPS Act.
6.Further, he relied on the order of this this Court in
Crl.R.C.(MD)No.116 of 2024, dated 08.02.2024 wherein this Court, following
the order passed in Nahoorkani's case (cited supra) held that whenever a return
of property is filed, the petitioner has to satisfy Sections 60, 61 and 62 of NDPS
Act. In yet another case, in Crl.R.C(MD)No.1395 of 2023, Gomathi Vs. State,
dated 27.02.2024, this Court passed orders on the similar line of Nahoorkani's
case. Further, he referred Crl.R.C.No.675 of 2023 in the case of Salimrajan @
Salimraj Vs. State dated 12.07.2023 wherein this Court again followed the
Nahoorkani's case. In sum and substance, he argued that any property say
conveyance seized in NDPS Act cases cannot be returned as a matter of routine
and it is only after satisfying Sections 60, 61, 62, and 63 of the said Act.
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7.The learned counsel appearing for the petitioner opposed the contention
of the learned State Public Prosecutor and submitted that Mohanlal's case,
refers to Section 52-A primarily with regard to not following the Standing
Order No.1/1989 and the subsequent Standing Orders, dated 10.05.2007 and
16.01.2015, which prescribed procedures to be followed while conducting
seizure of contraband, sampling, safe custody and disposal finding that there is
no uniform procedures followed in seizure, sampling and storing the narcotic in
safe vaults and handling and disposal of seized narcotics, lying in the malkhanas
or any other storage place without proper storage facility, thereby, the danger of
recirculation of seized contraband into system is very much likely, hence issued
directions to the Investigation Agency, Magistrate and Governments to follow
guidelines. Further, submitted that this Court, following the Apex Court
Judgment in Sainaba Vs. State of Kerala and Anr in Crl.A.No.2005/2022,
reported in 2022 (7) KHC 2731, wherein the Apex Court released the vehicle
involved in the NDPS Act well after Mohanlals' case. Hence, it cannot be said
that Mohanlal's case places restrictions on release of vehicle. The Sainaba's
case, being the Judgment of the Apex Court this Court finding, it is binding
under Article 144 of the Constitution of India entertained and allowed the return
of property petition filed under Sections 451 and 457. The citations referred by
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the State Public Prosecutor is no more res integra on the point of return of
property. He further added that this Court in Crl.R.C.(MD)No.41 of 2019,
Crl.R.C.(MD)No.116 of 2024 and Crl.R.C.(MD)No.1395 of 2023 and in
Crl.R.C.(MD)No.675 of 2022, the Sainaba's case was not considered. In
view of the Apex Court Judgment in Sainaba's case, the confiscation
proceedings cannot be an embargo to consider the return of property petition,
but of course, the return of property petition to be considered on its own merits
and hence, there is no impediment to entertain the above petition.
8.I have heard the learned counsels appearing on either side and perused
the materials available on record.
9.It is not in dispute that the petitioner is the owner of the mobile phone
and he is not an accused in this case. It is also not in dispute that the petitioner's
mobile was seized along with the contraband from A1, mother of the petitioner.
Though the petitioner's contention is that he is a college student and he uses the
mobile phone on daily basis, from the materials produced by the prosecution it
is seen that from the year 2017 onwards, A1 actively involved in criminal
activities and she has got five previous cases under NDPS Act, out of which,
three cases are pending trial, one case is under investigation and in one case,
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investigation completed, charge sheet filed, but yet to be taken on file.
10.In view of the above scenario and considering the specific objection
made by the prosecution that the petitioner's mother using the petitioner's
mobile had created Whatsapp group for trafficking and peddling ganja and the
mobile phone used as conveyance in commission of offence, this Court is not
inclined to return the mobile phone of the petitioner at this stage despite the
petitioner is not an accused in this case.
11.During and on completion of investigation, if it is found that the
mobile phone not used and the case does not proceed on electronic evidence
more particularly the mobile phone of the petitioner, in such a case, the
petitioner is entitled for return of his mobile phone.
12.In the result, this criminal revision case stands dismissed for the
present confirming the impugned order, dated 20.09.2024 in Crl.M.P.No.9838
of 2024 passed by the learned Principal Special Judge, Principal Special Court
under EC & NDPS Act, Chennai.
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09.01.2025
Speaking Order/Non Speaking Order
Index : Yes/No
Internet : Yes/No
vv2
To
1.The Principal Special Judge,
Principal Special Court under EC & NDPS Act,
Chennai.
2.The Inspector of Police,
D3- Ice House Police Station,
Chennai-600005.
3.The Public Prosecutor,
High Court, Madras.
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M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY ORDER IN
09.01.2025
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