Rajasthan High Court - Jodhpur
Deva Ram vs State on 19 July, 2022
Bench: Pushpendra Singh Bhati
(1 of 4) [CRLR-535/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 535/2020
Deva Ram S/o Shri Mishri Lal, since died through legal heirs :-
1/1. Alol W/o Late Shri Deva Ram, aged about 39 years, r/o
Raiko Ka Bas, Kelwad, District Pali.
1/2 Kushveer S/o Late Sh. Deva Ram, aged about 11 years
(minor) through his natural guardian-mother.
1/3 Deepika Devasi D/o Late Shri Devaram, aged about 9 years
(minor) through her natural guardian-mother.
----Petitioner
Versus
State, Through Pp
----Respondent
For Petitioner(s) : Mr. DS Udawat a/w Mr. Shreyash
Ramdev
For Respondent(s) : Mr. Arun Kumar, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
19/07/2022
1. Learned counsel for the petitioner submits that the accused
Deva Ram was arrested and charged under Section 8/15 of the
NDPS Act. Learned counsel further submits that from the
possession of Deva Ram, 4 kg 200 gms of poppy husk / straw was
recovered and also an amount of Rs.4,91,100/- was recovered.
2. Learned counsel for the petitioner further submits that
before the trial could be completed, the accused-Devaram died
and he is survived by his wife and two small children. Learned
counsel further submits that wife and minor children do not have
much means for survival and the amount which belonged to
deceased Devaram ought to be released to his wife and children.
3. Learned counsel for the petitioner also submits that NDPS
Act envisages acquittal and conviction, but there is no direct law
upon abatement and since the trial itself is abated, therefore, any
kind of proof regarding the amount having been a sale proceeds
(Downloaded on 26/07/2022 at 08:05:21 PM)
(2 of 4) [CRLR-535/2020]
would not be possible. Learned counsel further submits that the
provisions of Sections 60, 61, 62 & 63 of NDPS Act deal with the
situation where the person is acquitted or convicted but hereis in
the present case, the trial has abated because the accused is died
and wife and minor children are seeking the amount to be
released in their favour.
4. Learned counsel for the petitioner has relied upon the
judgment rendered by Hon'ble Delhi High Court in Jagwat
Prasad Vs. Delhi Administration reported in 1992(2) RCR
(Criminal) 460, relevant para of the judgment reads as under :-
"(6) No doubt this section provides that whether the accused
is convicted or acquitted or discharged still the Court has the
power to confiscate provided the matter falls under Section
60, 61 or 62 of the said Act. In the facts and circumstances
of this case it is to be seen whether the case of the
petitioner is covered either under Section 60, 61 or 62 and if
not why should his money be not returned. Counsel for the
State admits that the case is not covered under Section 60
or 61 but contended that this case is covered under Section
62. I am afraid, I am not in agreement with the contention
of the learned counsel for the State because the bare
reading of Section 62 makes it clear that the prosecution has
to have a prima facie evidence to link this amount with the
sale proceeds of any drug. Merely because the amount of
Rs.55,000.00 was lying at the same place wherever 50
grams, of heroin was recovered, to my mind, would not
show that it was the amount of a sale of any drug. On the
contrary petitioner has prima facie Filed evidence indicating
that this amount he collected and saved for the marriage of
his youngest daughter. Prosecution ought to have verified
this fact of loan and sale of scooter. In response to the
petitioner's application before learned A.C.M.M., the defense
taken was that this amount must have been earned by
selling heroin because the accused has no other source of
income. He was trading in heroin and since the amount and
(Downloaded on 26/07/2022 at 08:05:21 PM)
(3 of 4) [CRLR-535/2020]
the heroin was recovered from the same place, therefore,
presumption should be drawn that it was from the sale of
the drug. This reply does not indicate that the prosecution is
sure that the amount of Rs.55,000.00 was the sale proceeds
of any drug or subsistence as required under section 62 of
the said Act. Mr. Grover further contended that the provision
of Section 68A would apply to the facts of this case. I think
this contention of Mr. Grover cannot be accepted. It is not
only when the case is finally determined and the person is
held guilty that the Court would have the jurisdiction to
confiscate the article or the drug as the case may be. In fact
Section 63 gives ample power to the Court to confiscate any
article or things seized under this Act irrespective of the fact
whether the accused is convicted, acquitted or discharged.
The question for determination at the moment is not
whether the amount of Rs. 55,000.00 can be confiscated at
this stage or not but whether this amount of Rs.55,000.00 is
the sale proceeds of the drug or the petitioner had the
knowledge?
(7) In the absence of any material having come on record at
this stage to prima facie link this amount with the sale
proceeds, it will be in the interest of Justice and fairplay if
this amount is refunded to the petitioner subject to the
terms which may be imposed by the trial court. "
Learned Public Prosecutor opposes the petition, but is unable
to point out that as to how it can now be established by anyone
without the accused having been survived as to whether the
amount in question was the sale proceeds out of the contraband
or not. Learned Public Prosecutor however, fairly submits that
abatement is a unique condition where the accused has died even
before the trial is completed and thus, establishing anything
negative or positive would be almost impossible.
This Court, after hearing learned counsel for the parties and
perusing the record of the case as well as provision of the NDPS
Act, particularly, Section 60, 61, 62 & 63, finds that the condition
(Downloaded on 26/07/2022 at 08:05:21 PM)
(4 of 4) [CRLR-535/2020]
of abatement does not squarely fall in any of the provision. At this
stage, this Court has to look into the fact whether it is possible for
the parties either of them to prove or not to prove that the
amount was the sale proceeds out of the contraband in question.
The clear answer is that once the accused has expired before the
completion of the trial arrival at a definite conclusion by the
learned court below would be difficult. This Court is also conscious
of the fact that wife and children are financially weak and may
require the amount for their livelihood and essential expenditure.
Without going into the merits of the case as well as looking
to the fact that the accused has died before the trial could be
completed; the trial has abated; the accused is survived by wife
and two small children; the abatement is not dealt with in Section
60, 61, 62 & 63 of NDPS Act, and the precedent law laid down by
the Hon'ble Delhi High Court in Jagwat Prasad Vs. Delhi
Administration (supra), the present petition is allowed and the
impugned order dated 14.07.2020 passed by learned Special
Sessions Judge (NDPS Act Cases), Sojat, District Pali is quashed
and set aside.
Thus, in the peculiar facts and circumstances and in absence
of any material having come on record at this stage of abatement
of trial to prima-facie link the amount with the sale proceeds of
the contraband, in the interest of justice and fairplay, the amount
in question, which has been seized by the State Machinery, is
directed to be released in favour of widow of the accused-
Devaram within a period of 30 days from today.
All pending applications also stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI), J.
23-Sudheer/-
Powered by TCPDF (www.tcpdf.org)
