Quadiram vs State Of Odisha
2021 Latest Caselaw 11926 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.129 of 2021

              Quadiram                              ....     Appellant

                                   Mr.Srikar Kumar Rath, Advocate

                                         -versus-
              State of Odisha                       ....   Respondent

                                   Mr.Rajesh Tripathy,
                                   Addl. Standing Counsel

                                  CORAM:
                              JUSTICE S.K. SAHOO
                                     ORDER

Order No. 22.11.2021

13. This matter is taken up through Hybrid arrangement (video conferencing/physical Mode).

Heard Mr. S.K.Rath, learned counsel for the appellant and Mr. Rajesh Tripathy, learned Addl. Standing Counsel for the State.

This is an appeal under section 454 of the Code of Criminal Procedure challenging the impugned judgment and order dated 13.11.2020 passed by the learned Sessions Judge -cum- Special Judge, Malkangiri in T.R.No. 55 of 2019 in directing the seized vehicle of the case to be confiscated to the State.

The factual scenario of the case is that two accused persons, namely, Kailash Chandra Patnaik // 2 //

and Ishat Ram Mishra faced trial for commission of offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter in short, 'N.D.P.S. Act') on the accusation of possessing/transporting commercial quantity of ganja more than 61 kgs. without any licence or authority. As per the prosecution case, on 16.05.2019 night at about 7.30 p.m., the S.I. of Police, Mathili police station was performing patrolling duty on the main road, which was leading from Malkangiri to Jeypore and at that time one Scorpio vehicle without registration number was passing through Forest Check gate, Gobindapalli and they detained the said vehicle and found two accused persons in the vehicle. The driver of the vehicle could not produce any document of the vehicle for verification and on suspicion, the S.I. of Police checked the vehicle and found two plastic gunny bags with pungent smell of ganja was coming from the backside of the said vehicle. Accordingly, in presence of independent witnesses, the ganja was weighed and it was found to be 61 kgs and 100 grams. He drew two sample packets weighing 25 grams from each of the bag, packed and sealed them using personal brass seal and after preparation of other ancillary documents like paper slips, sample sheet and Narcotic Drugs chart, left the used brass seal in the zima of the independent witness and thereafter

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seized the bulk ganja bags and the sample packets along with the vehicle and documents and the accused persons were brought to the police station and first information was lodged, on the basis of which Mathili P.S.Case No. 88 dated 16.05.2019 was registered. On completion of investigation, charge sheet was placed against the aforesaid two accused persons, namely, Kailash Chandra Patnaik and Ishat Ram Mishra.

The learned trial Court as per the impugned judgment and order dated 13.11.2020 found that the prosecution has failed to prove its case against the accused persons beyond all reasonable doubt and accordingly acquitted both the accused persons of the charge under section 20(b)(ii)(C) of the Act, however directed the seized vehicle to be confiscated to the State.

Mr. S.K. Rath, learned counsel for the appellant contended that the appellant is the registered owner of the offending vehicle, which was seized in connection with the case. During trial, the appellant filed a petition under section 451 of the Cr.P.C. for interim release of the vehicle in question in his favour and the documents of the seized vehicle were also filed before the learned trial Court, but the learned trial Court rejected the petition. He further submitted that while passing the impugned judgment and order dated 13.11.2020 in acquitting the accused persons,

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no opportunity of hearing was provided to the appellant, who is the registered owner of the vehicle, before passing the order of confiscation of his vehicle, which is contrary to the provision under section 63 of the N.D.P.S. Act and as such, the order of confiscation of the vehicle to the State is not sustainable in the eye of law and the matter be remanded to the learned trial Court to afford an opportunity of hearing to the appellant and adjudicate the matter in accordance with law.

Mr. Rajesh Tripathy, learned Addl. Standing Counsel for the State has not disputed that no opportunity has been provided to the appellant at the time of passing the order of confiscation.

Section 60 of the N.D.P.S. Act deals with liability of illicit drugs, substances, plants, articles and conveyances to confiscation. Sub-section (1) of section 60 states that whenever any offence punishable under the N.D.P.S. 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. Sub-section (3) of section 60 of the N.D.P.S. Act states that any animal or conveyance used in carrying any narcotic drug or psychotropic substance (or controlled substances), or any article

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liable to confiscation under sub-section (1) or sub- section (2) shall be liable to confiscations, 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. Section 63 of the N.D.P.S. Act deals with the procedure in making confiscations. Sub-section (1) of section 63 states that in the trial of offences under the Act, whether the accused is convicted or acquitted or discharged, the Court shall decide whether any article or thing seized under the 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. So far as sub-section (2) of section 63 of the N.D.P.S. Act is concerned, it states that 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. The proviso to sub-section (2) of section 63 states 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

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claim any right thereto and the evidence, if any, which he produces in respect of his claim. Thus, it is clear from the proviso to sub-section (2) of section 63 of the N.D.P.S. Act that if any person makes any claim of any right over the vehicle seized in connection with the case, then opportunity of hearing has to be provided to him and evidence in support of the claim of the vehicle has also to be taken into account by the concerned Court before passing the order of confiscation. Of course, in view of sub- section (3) of section 60, the vehicle can be released in favour of the person concerned and shall not be liable for confiscation only if the owner proves to the satisfaction of the Court that the vehicle was used in carrying the narcotic drug or psychotropic or controlled substance substances without his knowledge or connivance and that he had taken all reasonable precautions against such use.

At this stage, section 25 of the N.D.P.S. Act is very relevant for discussion, which states that whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of the Act, shall be punishable with the punishment provided for that offence. Section 35 of the N.D.P.S. Act deals with presumption of culpable mental state.

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In the case of Bhola Singh -Vrs.- State of Punjab reported in (2011) 49 Orissa Criminal Reports 89 while analyzing the provision under section 25 and 35 of the N.D.P.S. Act, it is held that the initial burden to prove that the accused had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word 'knowingly' used in section 25 of the N.D.P.S. Act and it was only after the evidence proved beyond reasonable doubt that he had knowledge, would the presumption under section 35 of the N.D.P.S. Act arises. Section 35 of the N.D.P.S. Act also presupposes that the culpable mental state of an accused has to be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities.

Therefore, if the owner of the vehicle knowingly permits his vehicle to be used in the commission of the offence under the Act and allows any other person to use the vehicle for commission of such offence, he will be equally be liable like the persons, who are committing the offence by carrying any narcotic and psychotropic substances in the said vehicle. Thus, it is very clear that even if any accused is acquitted of charge under the N.D.P.S. Act in which the registered owner of the offending vehicle is not an accused, the vehicle will not be released

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automatically in favour of the registered owner on filing of claim petition before the said Court. It is only when he proves that the offence has been committed by using his vehicle without his knowledge or connivance and that he had taken all reasonable precautions against use of his vehicle for committing such offence, then only the Court would release the vehicle in his favour, otherwise after hearing the owner of the vehicle and considering the documents filed by him, the Court, if it thinks fit, can order confiscation of the vehicle.

In the case in hand, the appellant filed documentary evidence at the time of filing of the petition under section 451 of Cr.P.C. for interim release of the vehicle, which was turned down by the learned trial Court,. There is nothing on record that the appellant challenged such rejection order. The rejection order of interim release cannot be a ground not to entertain the claim petition filed by the registered owner of the vehicle at the end of the trial. When the appellant as the registered owner of the vehicle was known to the learned trial Court, as he had filed documentary evidence to that effect, therefore, in all fairness of things and particularly in view of the provisions of sub-section (3) of section 63 of the Act, the learned trial Court should not have passed the order of confiscation without issuing notice to the registered owner of the vehicle, who is

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the appellant in this case and without giving him an opportunity of hearing and considering the evidence he would have produced in support of his claim and also taking into account the provisions of sub-section (3) of section 60 of the Act. The use of 'shall' in the proviso to sub-section (2) of section 63 of the Act, the serious inconvenience or injustice likely to be caused to the person in case of confiscation of vehicle etc. is made without affording any opportunity of hearing to him, makes the provision mandatory. Since that procedure has not been followed, which is mandatory in nature, the portion of the order directing confiscation of the vehicle to the State is not sustainable in the eye of law and accordingly, the same is hereby set aside. The matter is remanded back to the learned trial Court and the appellant is directed to file his claim petition before the learned trial Court on or before 13th December 2021 along with all the documents in support of such claim and the learned trial Court after hearing the appellant as well as the learned counsel for the State and keeping in view the observation made hereinabove by this Court shall dispose of the same in accordance with law.

With the aforesaid observation, the CRLA stands disposed of.

The trial Court record along with a copy of this order be sent to the learned trial Court by 26th

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November 2021.

The certified copies in respect of the vehicle bearing registration no. DL8CY-6480, certified copy of the F.I.R. filed before the Seelampur, North-East Police Station, Delhi and certified copy of property seizure memo, which were filed with a memo dated 23.08.2021 be returned to the learned counsel for the appellant on being substituted with xerox copies of the same.

Issue urgent certified copy of this order on proper application.

( S.K. Sahoo) Judge

PKSahoo