Madras High Court

Jeevan vs The State Rep By Its on 9 January, 2025

Author: M.Nirmal Kumar

Bench: M.Nirmal Kumar

                                                                                    Crl.R.C.No.1658 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.1658 of 2024

                     Jeevan                                   ... Petitioner / Third Party

                                                             Vs.

                     The State Rep by its
                     The Inspector of Police,
                     D-2, Chengalpet Taluk Police Station,
                     Chengalpet District
                     (Crime No.677 of 2023)             ... Respondent / Complainant

                     PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of
                     Cr.P.C., against the order dated 15.03.2024 made in Crl.M.P.No.452 of
                     2024 in Crime No.677 of 2023, on the file of the Principal Special
                     Judge under NDPS & EC Act at Chennai.


                                       For Petitioner   :     Mr.A.Vinoth Kumar

                                       For Respondent :       Mr.Hasan Mohammed Jinnah
                                                              State Public Prosecutor

                                                              Assisted by
                                                              A.Damodaran
                                                              Addl.Public Prosecutor




                     Page No.1 of 16



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                                                                                        Crl.R.C.No.1658 of 2024




                                                         ORDER

Challenging the order of dismissal dated 15.03.2024 in

Crl.M.P.No.452 of 2024, passed by the learned Principal Special

Judge under NDPS & EC Act at Chennai, the petitioner, who is the

owner of the mobile phone, is before this Court with the present

Revision.

2. Mr.A.Vinoth Kumar, the learned counsel appearing for the

petitioner would submit that the petitioner is the owner of the mobile

phone, bearing Model No.“Apple iPhone 13 (128 GB)-Midnight having

colour of Black, IMEI No.350112337364722, filed a petition in

Crl.M.P.No.452 of 2024, before the learned Principal Special Judge

under NDPS & EC Act at Chennai, and the same was dismissed by the

trial Court. He further submitted that the petitioner is no way

connected with the offence. A1 being the relative of the petitioner

taken his Mobile for some urgency. The petitioner undertakes to

produce the Mobile Phone before the trial Court as and when

required.

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3. Mr.Hasan Mohammed Jinnah, the learned State Public

Prosecutor would submit that on 16.11.2023, at about 07.00 hrs., the

respondent police received secret information about the illegal

transport of Gana near Mahendra City, Green Biji Guest House. The

respondent went to the scene of occurrence along with his team and

found two persons viz., Akshay/A1 and Irshad/A2 were standing there

on suspicious manner. They were questioned and latter from them

1.350 Kgs of Ganja and two Mobile Phones, “Apple” and “Redmi” were

seized. The seized articles were produced before the Court in

A.No.84/2024, B.No.218/2024, respectively dated 12.01.2024 and

13.03.2024. The petitioner, who is uncle of Akshay/A1 filed a petition

before the trial Court seeking return of mobile phone. The trial Court

dismissed the petition for the reason investigation not completed.

4. The learned State Public Prosecutor vehemently opposed the

petition submitting that return of property in the NDPS Act Cases

cannot be entertained invoking Sections 457 and 451 of Cr.P.C., and it

is 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 and connivance, he has taken all

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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

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Magistrate and the Central and State Government and its agencies

within six months from the date of the order take 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

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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 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

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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.

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

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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

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.

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9. On perusal of the records it is seen that in Mohanlal's case,

the Apex Court finding is that, despite issuance of the Standing Order

No.1/1989 and the subsequent Standing Orders, dated 10.05.2007

and 16.01.2015, no uniform practice and procedures followed by

State or Central Agencies in the matter of drawing of samples at the

time of seizure, storage of drugs in safes and vaults, not placed in

double-locking system and piquant situation arose by which

accumulation of huge quantities of the seized drugs and narcotics

increased and the chances of their pilferage for re-circulation in the

market, hence put in place certain procedures and guidelines to the

Investigation Agency, Magistrate, Central and State Governments, and

ordered formation of Drug Disposal Committee to monitor the same.

No direction with regard to the conveyance considered and issued.

Further, the Notification No.G.S.R.899(E), dated 23.12.2022 issued in

terms of Section 52-A of the NDPS Act. The question whether there is

any legal embargo in view of confiscation proceedings under Sections

60 to 63 of the NDPS Act and whether petition seeking return of

property under Sections 451 and 457 can be entertained and

decided has been dealt in detail by the Karnataka High Court Division

Bench in Rathnamma v. State rep., by PSI, Channagiri Police

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Station, Davabagere District in CRL.P.No.3571/2021, which was

in conflict to the Division Bench Judgement of the Kerala High Court

in Shajahan Vs. Inspector of Excise and Others reported in 2019

SCC Online Ker 3685, hence the matter was referred to a Larger

Bench by the Kerala High Court and the Kerala High Court in the case

of Pradeep B. Vs. The District Drug Disposal Committee

represented by its Chairman, Kasargod and Others in WA

No.1304 of 2022, dated 19.02.2024 dealt in detail, referring to

Section 52-A, guidelines given in the Mohanlal's case and held that

jurisdictional Special Court under the NDPS Act has power to

consider the grant of interim custody of the article under the Act by

invoking powers under Section 457 of Cr.P.C., and answered the

reference accordingly. It had also referred to the orders passed by

Allahabad High Court in Shams Tavrej v. Union of India reported

in 2023 SCC OnLine AII 1154 and Rajdhari Yadav v. State of U.P.

Reported in 2022 SCC OnLine AII 583 and Union of India v.

Tejinder Singh reported in 2023 SCC OnLine Gau 729 and

following Sainaba Vs. State of Kerala (2022 (7) KHC 273) held

interim custody of a vehicle involved under the NDPS Act could be

ordered. In Sainaba's case, the procedures contemplated and

applicable in NDPS Act in consonace with Cr.P.C., are dealt in detail.

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The Apex Court considering both NDPS Act and Cr.P.C., held as

follows:-

“5. It has been opined by the High Court that the Court is not empowered to exercise the jurisdiction under Section 451 of the Code of Criminal Procedure to release a vehicle involved under NDPS Act in interim custody.

6.The appellant has urged inter alia that as per Section 36-C read with Section 51 of the NDPS Act, Criminal Procedure Code would be application for proceedings by a Special Court under NDPS Act and Section 451 has an inbuilt provision to impose any specific condition on the appellant while releasing the vehicle. The appellant is undoubtedly the registered owner of the vehicle but had not participated in the offence as alleged by the prosecution nor had knowledge of the alleged transaction.

7. Learned counsel seeks to rely on the judgment of this Court in Sunderbhai Ambalal Desai Vs. State of Gujarat – 2003 (2) KLT 1089 (SC) = (2002) 10 SCC 283 opining that it is no use to keep such seized vehicles at police station for a long period and it is open to the Magistrate to pass

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appropriate orders immediately by taking a bond and a guarantee as well as security for return of the said vehicle, if required any any point of time.

8. On hearing learned counsel for parties and in the conspectus of the facts and circumstances of the case, and the legal provisions referred aforesaid, we are of the view that this is a appropriate case for release of the vehicle on terms and conditions to be determined by the Special Court.”

10. It is not in dispute that the petitioner is the owner of the

Mobile and not a accused in this case. A1 being the relative of the

petitioner taken the Mobile Phone of the petitioner for some urgency,

and the same has been seized in this case. The petitioner submitted

that all his important details are in the mobile phone and further he

made all transactions through his Mobile Phone. Now-a-days, it is

through online almost all the transactions are carried out and hence,

he needs his Mobile.

11. Hence, following the Supreme Court Judgment, in

Sainaba's case, and the Full Bench of Kerala High Court in

Pradeep's case, this Court finds the objection of the learned State

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Public Prosecutor that there is total embargo in entertaining the

petition for return of property under the relevant provision of Cr.P.C.,

is no more res intergra. In view of the same, this Court is

inclined to entertain and consider the grant of interim custody of

Mobile Phone seized under the NDPS by invoking the power under

Sections 451 and 457 of Cr.P.C consequently under Section 497 and

503 BNSS, subject to the confiscation proceedings.

12. The lower Court following the guidelines given in

Sunderbhai Ambalal Desai case, take photographs, record the

features of the Mobile Phone, prepare a proceeding to be used as

proof in the trial, before return the Mobile Phone to the petitioner.

13. In view of the foregoing reasons, the order of dismissal

dated 15.03.2024 in Crl.M.P.No.452 of 2024, passed by the learned

Principal Special Judge under NDPS & EC Act at Chennai, is set

aside and this Revision is allowed with a direction to the learned

Principal Sessions Judge, to return the Mobile Phone, bearing Model

No.“Apple iPhone 13 (128 GB)-Midnight having colour of Black, IMEI

No.350112337364722, in favour of the petitioner on the petitioner

submitting an undertaking on the following terms and conditions:-

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i. The petitioner shall furnish a personal bond for a sum of Rs.5,000/- (Rupees Five Thousand Only) with one surety, undertaking to produce the Mobile Phone as and when directed by the trial court.