Rajasthan High Court

Kamal Kishore Meena S/O Shri ... vs State Of Rajasthan on 15 February, 2021

Bench: Sanjeev Prakash Sharma

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous Application No. 25/2021

Kamal Kishore Meena S/o Shri Chhitarmal Meena, Aged About 26
Years, R/o Phirwasi, Police Station Jaswantgarh, Tehsil Ladnun,
Distt. Nagaur Raj. (Registered Owner Of Vehicle Truck No. Rj-37-
Ga-1895)
                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through Public Prosecutor.
                                                                ----Respondent

For Petitioner(s) : Mr. Tej Prakash Sharma For Respondent(s) : Mr. Anil Upman

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

15/02/2021

1. The applicant has moved this misc. application seeking

modification/recalling of order dated 12.01.2021 passed by the

Court directing for release of the vehicle seized as a cash property.

2. Notices were issued in this case, whereafter the counsel for

the non-applicant has put in appearance and pointed out that in

spite of order passed by the court, vehicle has not been released.

It is also informed that the confiscation proceedings have not been

concluded nor they have been initiated as the same are to be

initiated in terms of Section 63 of the NDPS Act, 1985 which

provides as under:-

"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

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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 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 [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 its 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."

3. Learned counsel appearing for the applicant-Narcotics

Department submits that a circular has been issued for disposal of

narcotics drugs, psychotropic substances, controlled substances of

and conveyances on 16th January, 2015 and therefore, in terms of

circular, the Supreme Court in Criminal Appeal No.652/2012 :

Union of India Vs. Mohan Lal directed for disposal of NDPS

Substances before the Drug Disposal Committee as this Court

finds that the directions issued by the Supreme Court are as

under:-

(1) No sooner the seizure of any narcotic Drugs and Psychotropic and controlled

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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 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section 3 of Section 52A, 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 13 and 14 of this order.

(2) The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate 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.1/89 to ensure proper security against theft, pilferage or replacement of the seized drugs.

(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.

4. The aforesaid directions issued by the Supreme Court are

only with regard to the drugs which have been seized. So far as

vehicle is concerned, the same is required to be confiscated in

terms of provisions laid down under the NDPS Act and a circular

cannot go beyond the provisions of the Act.

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5. Admittedly, the confiscation proceedings have not been

initiated with regard to the vehicle. In the garb of the same, the

applicant has no case for recalling of the order. No typographical

or any other apparent mistake has been committed in the order.

6. In view of the bar contained in Section 362 Cr.P.C. and the

law laid down in the case of State of Punjab vs. Davinder Pal

Singh Bhullar and others (2011) 14 SCC 770, the Supreme

Court has observed as under:-

"44. There is no power of review with the criminal court after Judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362, Cr.P.C. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment.

45. Moreover, the prohibition contained in Section 362, Cr.P.C. is absolute; after the Judgment is signed, even the High Court in exercise of its inherent power under Section 482. Cr.P.C. has no authority or jurisdiction to alter/review the same.

46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of Court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362,

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Cr. P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault."