Madras High Court

Parasuraman ... Petitioner / 3Rd Party vs The State on 9 January, 2025

Author: M.Nirmal Kumar

Bench: M.Nirmal Kumar

                                                                                          Crl.R.C.No.1744 of 2024

                                                Crl.R.C.No.1744 of 2024

                  M. NIRMAL KUMAR, J.



                            Today, the matter is listed under the caption “For Being Mentioned” at

                  the instance of the learned counsel for petitioner.



                            2.It is submitted that in paragraph 14(i) of the order dated 09.01.2025,

                  it was wrongly typed as 'Rupees Fifty Thousand only' instead of 'Rupees Ten

                  Thousand only'.



                            3.The Registry is directed to carry out the correction and issue fresh

                  copy of the order dated 09.01.2025.



                            4. The issue is clarified, accordingly.



                                                                                                  25.02.2025
                  rsi




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                                                                               Crl.R.C.No.1744 of 2024

                                                                       M. NIRMAL KUMAR, J.

                                                                                                  rsi




                                                                        Crl.R.C.No.1744 of 2024




                                                                                       25.02.2025




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                                                                                          Crl.R.C.No.1744 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.1744 of 2024


                  Parasuraman                                              ... Petitioner / 3rd Party

                                                                Vs.

                  The State, Rep. By its
                  The Inspector of Police,
                  Chengalpattu Taluk PS
                  (Crime No.453 of 2023)                                   ... Respondent / Complainant



                  PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of
                  Cr.P.C., to set aside the order of dismissal dated 23.01.2024 made in
                  C.M.P.No.9137 of 2023 in Cr.No.453 of 2023 on the file of the
                  Principal Special Court under EC & NDPS Act, Chennai, by allowing
                  the Present Criminal Revision Petition.


                                    For Petitioner      :        Mr.S.Sathish Kumar

                                    For Respondent :             Mr.Hasan Mohammed Jinnah
                                                                 State Public Prosecutor

                                                                 Assisted by
                                                                 A.Damodaran
                                                                 Addl.Public Prosecutor



                                                         ORDER

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Challenging the order of dismissal, dated 23.01.2024, in

C.M.P.No.9137 of 2023, in Crime No.453 of 2023, passed by the

learned Principal Special Judge under EC & NDPS Act, Chennai, the

Petitioner, who is the owner of the vehicle viz., Auto, bearing

Reg.No.TN-19-AD-0545, is before this Court with the present Revision,

for return of vehicle.

2. Mr.S.Sathish Kumar, the learned counsel appearing for the

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

viz., Auto, bearing Reg.No.TN-19-AD-0545 and he is not an accused.

The Petitioner hired his vehicle to the Accused No.1 and from the

earnings, he is sustaining himself. The vehicle was misused by the

accused to transport the contraband. He further submitted that

the vehicle is kept in open space exposing to vagaries of weather,

further detention would make the vehicle unusable, rusted and it

would become a scrap. The petitioner is ready to comply with any

condition that this Court may impose while granting return of vehicle.

He would further submit that due to detention of vehicle, he is unable

to make any earnings, and his livelihood is greatly affected.

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

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Prosecutor would submit that on 09.08.2023 at about 15.00 Hrs, the

Respondent Police received secret information about the illegal

transportation of Narcotic substance. The Respondent Police along

with his team rushed to the spot i.e., Vallam Village, Big Street,

Chengalpattu. At that time, two unknown persons came in auto,

bearing Reg.No.TN-19-AD-0545 in suspicious manner. When the

vehicle was searched, from the vehicle 1.100 Kgs of Ganja found and

seized. Thereafter, the accused and the seized articles were produced

before the lower Court.

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

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

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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 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

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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 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

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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.

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

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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 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

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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. 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

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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 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 State Court under the NDPS Act has power to consider

the grant of interim custody of the vehicle 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

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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.

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.

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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 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

Auto, hires the auto, make his livelihood and not accused in this case.

The objection of the respondent seems to be that steps have been

taken for confiscation proceedings. It is several months passed still

the confiscation proceeding is only at the conception stage and nothing

has been done. Further, if the auto is kept in open yard exposed to

sunlight and rain, the condition of the said vehicle will be deteriorating

day-by-day and the value of the vehicle will get diminished, finally it

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would become unusable and a scrap.

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 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 vehicles seized under the

NDPS by invoking the power under Sections 451 and 457 of Cr.P.C

consequently under Section 497 and 503 BNSS.

12. It is seen that the petitioner carrying on business by hiring

Auto and makes his earnings, which is his primary source of income,

with this income he is sustaining himself and his family. The Petitioner

produced the Registration Certificate, vehicle permit. Admittedly, the

petitioner is not an accused. In view of the same, this Court is inclined

to allow the Revision.

13. The lower Court following the guidelines given in

Sunderbhai Ambalal Desai case, take photographs, record the

features of the vehicle, prepare a proceeding to be used as proof in the

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trial, before releasing the vehicle to the petitioner.

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

dated 23.01.2024 in C.M.P.No.9137 of 2023 passed by the learned

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

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

Special Judge, to release the petitioner's vehicle viz., Auto, bearing

Reg.No.TN-19-AD-0545, in favour of the petitioner on the petitioner

submitting an undertaking on the following terms and conditions:-

i. The petitioner shall furnish an indemnity bond of Rs.10,000/- (Rupees Fifty Thousand Only) with two solvent sureties, undertaking to produce the vehicle as and when directed by the court.

ii. The petitioner shall not sale, mortgage or transfer the ownership of the vehicle during the pendency of the case.

iii. The petitioner shall not change or tamper with the identification of the vehicle in any manner during pendency of the case.

iv. Any other condition, if any, to be imposed by the trial court.

09.01.2025 Index : Yes/No Speaking Order/Non Speaking Order Neutral Citation: Yes/No

vv2/mpk

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To