Tripura High Court

Abdul Kalim Son Of Md. Jan vs The State Of Tripura on 25 October, 2022

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              HIGH COURT OF TRIPURA
                    AGARTALA

                Crl.Petn.No.47 of 2022

Abdul Kalim son of Md. Jan, resident Shivaishinghpur,
PS-Mohaddinnagar, Samastipur, Bihar, Pin-842000

                                            -----Petitioner(s)
                        Versus
The State of Tripura, represented by Ld. PP., High Court
of Tripura, Agartala.
                                   ----Respondent(s)

BEFORE

HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For the Petitioner(s) : Mr. S.Lodh, Adv.

For the Respondent(s) : Mr. Ratan Datta, PP.

Mr. S. Debnath, Addl.PP.

Date of hearing &            :       25.10.2022
Delivery of Order
Whether fit for reporting:           NO

              JUDGMENT & ORDER (ORAL)

[1]        By means of filing this application under Section

482 of the Code of Criminal Procedure, 1973, owner of the

offending vehicle has sought for quashing the order dated

29.07.2022 passed by the learned Special Judge (NDPS),

Sepahijala District, Bishalgarh in case No. Special (NDPS)

16 of 2022 whereby the learned Special Judge has

declined to release the offending vehicle in favour of the

owner.

[2] The owner has sought for release of the vehicle

on the ground of his innocence claiming that he had no

idea about the misuse of his vehicle by the driver.

[3] On behalf of the prosecution, it was submitted

before the learned trial court that an extra chamber was

made in the cabin of the vehicle for concealing the

contraband which was not possible without the knowledge

and connivance of the owner. The learned PP, therefore,

argued before the trial court that owner's plea of

innocence was not at all believable. The learned trial court

having considered the facts and given circumstances of the

case rejected the claim of the owner with the following

observations:

"Having regard to the facts and circumstances, submissions of both the sides and the fact that there was an extra secret chamber made for carrying the contraband concealed in the seized vehicle and such a secret chamber could not have been made without the owner's direction or knowledge and that he did not comply with the notice of the I/O to appear while the case was

under investigation, I do not believe that the owner was totally innocent or having no knowledge about the illegal use of the vehicle without his connivance, the prayer for release of the seized vehicle is hereby rejected."

[4] The petitioner, being the owner of the offending

vehicle, has challenged the said order of the trial court by

filing this petition.

[5] The relevant facts necessary for disposal of the

case, are as under:

Srikanta Chakraborty, SI of Police of

Bisramganja Police Station lodged a suo moto written FIR

with the Officer In Charge of his police station on 27.

01.2022, alleging inter alia, that pursuant to a secret

information he spotted the truck bearing registration No.

PB 13 U 9843 at Bisramganj on its way from Melaghar at

around 7.30 a.m on 27.01.2022. The vehicle along with its

driver was detained and a search was carried out in the

said vehicle. During the search, 215 kg dried 'ganja' in

plastic packets was recovered from the vehicle in presence

of the SDPO and cash currency and also 2 fake registration

plates were also recovered from the possession of the

driver of the vehicle. BRG P.S. case No.2022 BRG 007

under Sections 20(b)(iii)(c), 25,27 and 29, NDPS Act was

registered against the driver and the vehicle was seized by

drawing a formal seizure list.

[6] After investigation, charge sheet No.17 of 2022

dated 21.06.2022 was filed against accused Md.

Khushnoor Alam under various provisions of the NDPS Act

as well as for the violation of different provisions of the

Motor Vehicles Act. It has been indicated in the charge

sheet that during investigation, police has come to know

that registered owner of the vehicle is Md. Abdul Kalim son

of Md. Jan of Shivaishingpur of PS-Mohaddinnagar,

Samstipur, Bihar and actual registration No. of the vehicle

is BR06G7004. At the time of committing the offence

driver fitted and displayed fake registration No.PB-13-U-

9843.

[7] Owner Abdul Kalim filed a petition before the

learned trial court along with an affidavit sworn before the

notary on 08.07.2022 for release of the offending vehicle.

He claimed before the trial court that he was the

registered owner of the truck bearing registration

No.BR06G7004 Chassis No-MAT426031A2E12053 & Engine

No.01E62880059 which was detained by police for carrying

the contraband. It was also claimed by the owner that all

the documents of the vehicle were in his possession and

he had the National permit for plying the vehicle across the

country and when the vehicle was detained by police it was

returning after delivery of a valid consignment. He had no

idea about the fact that the driver was carrying dried ganja

in his vehicle. Owner claimed that only after delivery of the

consignment the driver fitted and displayed the fake

registration plate on the vehicle beyond his knowledge. He

claimed that he was totally unaware of the illegal activities

done by the driver of his vehicle. He, therefore, claimed for

release of his vehicle.

[8] As stated above, the learned Special Judge

disbelieved the contention of the owner and declined to

release his vehicle which has been challenged before this

court.

[9] Heard Mr. S.Lodh, learned counsel appearing

for the petitioner. Also heard Mr. Ratan Datta, learned PP

appearing for the State respondent along with Mr.

S.Debnath, Addl. PP.

[10] It is contended by Mr. Lodh learned advocate

that the owner of the vehicle cannot be deprived of his

livelihood for no fault of him. Counsel has contended that

after seizure, the vehicle has been kept under open sky at

the police station which has already caused irreparable

damage to the vehicle. Counsel submits that law

empowers the court to release the vehicle in favour of its

true owner on his furnishing appropriate security and

under the terms and conditions, as the court may deem fit

and proper. In support of his contention learned counsel

has referred to the decision of the Supreme Court in the

case of Sunderbhai Ambalal Desai Vs. State of

Gujarat reported in (2002)10 SCC 283 and judgment

dated 16.03.2018 passed by this court in Crl.Petn No.08 of

2018 and judgment dated 14.07.2022 passed by this court

in Crl.Petn No.32 of 2022. Counsel submits that the driver

manufactured fake number plates and carried contraband

in the said vehicle beyond the knowledge of the petitioner

for which petitioner cannot be held liable and deprived of

his livelihood by way of detaining his vehicle for such a

long period of time without any fault of him. Counsel

therefore, urges the court to release the vehicle in favour

of the petitioner owner.

[11] Mr.Ratan Datta, learned PP on the other hand

vehemently opposes the petition contending that the

owner cannot plead innocence particularly when it has

been established that a chamber was made in the cabin of

the vehicle for carrying such contraband. Counsel contends

that in the given circumstances of the case, it is absolutely

clear that such arrangements in the vehicle were made

with the knowledge and connivance of the owner and as

such the offending vehicle is liable to confiscation under

the law and the owner cannot claim its release on the plea

of innocence.

[12] In support of his contention counsel has relied

on the order dated 10.01.2020 passed by this court in Crl.

Petn No.01 of 2020 in which release of the offending

vehicle was declined by this court viewing as under:

"The petitioner seeks temporary release of a motorcycle seized by the police authorities pending investigation into an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, for short). Learned counsel for the petitioner pointed out that first such request was made before the concerned Court. The learned Judge by an order dated 20.09.2019 released the petitioner accused on bail but refused to release the vehicle.

On the other hand, learned Public Prosecutor drew my attention to the provisions contained in Sections 60 and 63 of the NDPS Act to contend that the vehicle is liable to be confiscated in case the offence is proved against the petitioner. He also brought to my notice the decision of learned Single Judge of this Court in Criminal Petition No.09 of 2018 in case of Sri Sankar Das vrs. The State of Tripura dated 16.03.2018 in which in the context of release of vehicle seized during investigation into NDPS offence came up for consideration.

Present is a case where the petitioner himself, the owner of the vehicle was intercepted and as per the prosecution case, was found to be in possession of small quantity of narcotic drug. In that view of the matter, the vehicle if eventually the charge is proved, is liable for confiscation. I do not, therefore, find it appropriate to release the vehicle pending further investigation and trial. I am conscious that the Supreme Court in case of General Insurance Council and others vrs. State of Andhra Pradesh, reported in (2010) 6 SCC 786 has highlighted that a seized vehicle would decay by the time the trial is over and, therefore, subject to suitable conditions the same should ordinarily be released. However, in the present case the seized motor vehicle is not merely a muddamal article but a means of

transportation of banned drugs liable to be confiscated in case the conviction is recorded.

Petition is, therefore, dismissed."

[13] Learned PP has also relied on the order dated

13.02.2020 passed by this court in Crl.Petn No. 07 of 2020

wherein this court viewed as under:

"Petitioner is the owner of a car bearing registration No.TR- 06-B-0390 (Maruti Alto 800 Green LXI). The same has been seized by the police authorities on the ground that on 26.09.2019 in the night hours one of the occupants of the car was found carrying heroin, one of the contraband goods under the NDPS Act, 1985. The case of the petitioner is that the vehicle was being used for ferrying passengers. He, therefore, had no involvement in the said incident.

These are, however, issues which cannot be gone into at this stage. The question of possible confiscation of the vehicle in terms of Section 60(iii) of the NDPS Act will have to be weighed once the trial is over.

Under the circumstances, request is refused.

Petition is disposed of. Pending application(s), if any, also

stands disposed of."

[14] It is contended by Mr. Datta, learned PP that

the owner of the vehicle should have come and sought for

release of the vehicle within 01 month of its seizure in

terms of the law. But he has come after a long lapse of

time and that too without any genuine ground. Counsel

therefore, submits that plea of the owner is not

acceptable.

[15] At the end, Mr. Datta learned PP submits that if

the court under any circumstance decides to release the

vehicle in favour of the owner, the same may be done

asking the owner to furnish bank guarantee of adequate

amount. In support of his contention counsel has relied on

the order dated 20.09.2022 passed by this court in CrL.

Petn No.43 of 2022 where the owner was asked to furnish

bank guarantee to obtain release of his vehicle.

[16] The relevant provisions which deal with the

present situation is Section 60(3) of the NDPS Act which

provides as under:

"60(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 2[or controlled substance], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, 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."

[17] Section 63 of the NDPS Act provides the

procedure relating to confiscation. For purpose of

reference, the relevant statutory provisions are extracted

hereunder:

„(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any 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, 1

[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.‟

[18] Mr. S. Lodh, learned counsel appearing for the

petitioner has submitted that if the vehicle is kept in the

premise which is totally uncovered, the vehicle would

severely be damaged and its value would be depreciated.

Mr. Lodh, learned counsel has relied on the decision of the

apex court in Sunderbhai Ambalal Desai Vs. State of

Gujarat(supra) where the apex court has observed as

under:

"1. owner of the article would not suffer because of its remaining unused or by its misappropriation.

2. court or the police would not be required to keep the article in safe custody;

3. if the proper panchanama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and

4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."

[19] The law as laid down in Sunderbhai Ambalal

Desai Vs. State of Gujarat has been restated in General

Insurance Council and others vs. State of Andhra

Pradesh, reported in (2010) 6 SCC 786. In General

Insurance Council (supra) the apex court has observed

that:

"It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only they occupy substantial space of the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalized so that the vehicles become unworthy of being driven on road."

The aforesaid directions as referred in General

Insurance Council (supra) encompass the disposal of the

seized vehicle. In the case in hand, the Special Judge did

not allow the vehicle to be released on furnishing adequate

security and conditions.

[20] Mr.Lodh learned counsel of the petitioner has

strenuously argued that the circumstances brought before

the court would clearly demonstrate that the owner did not

have any knowledge that his vehicle was used for carrying

narcotic substances. Counsel contended that in similar

circumstances in the case of Kishan Singh Vs. State of

Tripura [Crl. Petn No. 8 of 2018] this court released the

offending vehicle on bail in favour of the petitioner owner

viewing as under:

"[12] It is thus apparent that Section 60(3) of the NDPS Act has made provision for protecting the interest of an innocent owner before confiscating his vehicle. The procedure of confiscation has been made under Section 60(3) of the NDPS Act which provides that in the trial of offences under the NDPS Act, whether the accused is convicted or acquitted or discharged the Special Court shall decide whether any article or thing seized under this act is liable to confiscation under Sections 60,61 or 62 and if it decides that that the seized articles or things are liable to be confiscated it may order confiscation accordingly. The procedure for confiscation has been further elaborated under sub Section 2 of Section 63 of the NDPS Act. A substantive reading of Section 63 read with Section 60(3) of the NDPS Act would provide that

until the trial is over the confiscation proceeding cannot be initiated. However, exception has been curved out in proviso-es to sub Section 2 of Section 63 of the NDPS Act. The first proviso provides that no order of confiscation of an article or thing shall made 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.

The second proviso to sub-Section 2 of Section 63 of the NDPS Act provides 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.

[13] A conjoint reading of proviso-es as referred above would certainly allow a prudent person to infer that immediate disposal would mean the disposal after expiry of one month and that would apply to articles or things other than the narcotic drugs, psychotropic substance, controlled substances, the opium poppy, coca plant or cannabis plant which are liable to speedy and natural decay. If the court is of the opinion that sale would be beneficial for its owner it may any time direct it to be sold. In that event the Drug Disposal Committee shall make all arrangements for sale of those things or articles. So far the conveyance [of which ownership has been claimed] is concerned, its involvement in carrying out the offence has to be proved in the trial and on such proof, the proceeding for confiscation may ensue in terms of Section 63(1) of the NDPS Act and the confiscation only be made after affording a reasonable opportunity of being heard to the person who has any right or claim over the said conveyance. Such confiscation can be done only after the trial is complete and the Special Court

decides for confiscation as the court is to see that the vehicle or conveyance which was used for commission of offence under the NDPS Act is not made available to the person or persons who indulged in the blameworthy act. If the owner of the vehicle is not an accused in that case, a separate and independent proceeding has to be drawn for confiscation in terms of the express provisions in Section 60(3) of the NDPS Act to protect an innocent owner before confiscating his vehicle or conveyance. Thus, there is a right to the owner who claimed within 30[thirty] days from the day of seizure, his title over the vehicle to have interim custody of the said vehicle subject to the adequate security till completion of the trial. In absence of any contrary provision in Union of India vs. Mohanlal (supra), this Court is of the view that the vehicle bearing registration No.TR-07-1530 as seized in connection with Belonia P.S. Case No.2018BLN003 may be released to its registered owner till completion of the trial. The petitioner has claimed his ownership over the said vehicle within 30[thirty] days from the day of seizure. It is made absolutely clear that on taking zimma, the registered owner shall keep the vehicle in good condition and shall not transfer any right including the right of ownership or by forging agreement in respect of use of the vehicle. Where no one claims the ownership of the vehicle within the stipulated time of 30[thirty] days, the court may direct the Drug Disposal Committee for disposal by sale."

[21] Relying on the decision of this court in the case

of Balkrishna Mishra vs. State of Tripura in Crl.Petn

No. 32 of 2022, counsel of the petitioner contends that this

court by order dated 14.07.2022 in the said case has

viewed that the owner of the vehicle may file an

application for release of his vehicle on bail at any stage of

the proceeding or even during the proceeding of

confiscation.

[22] Mr.Lodh learned counsel, has therefore, argued

that there is no embargo in releasing the vehicle in favour

of the owner on bail after obtaining appropriate security

from him as the court may deem fit and proper.

[23] With regard to the submission of Mr.R.Datta,

learned PP, for asking the owner to furnishing bank

guarantee in case his claim is considered by the court,

Mr.Lodh, learned counsel, submits that the owner whose

only vehicle has been detained for such a long period of

time would not be unable to provide bank guarantee.

[24] In the case of Sunderbhai Ambalal Desai Vs

State of Gujarat (supra) the apex court has succinctly

held that whatever be the situation, it is not of any use to

keep such seized vehicle at the police stations for a long

period. It is for the Magistrate to pass appropriate orders

immediately by taking appropriate bond and guarantee as

well as security for return of the said vehicles, if required

at any point of time (para 17). As discussed, the law laid

down in Sunderbhai Amalal Desai (supra), has been

reinstated in the General Insurance Council and

Others Versus State of Andhra Pradesh and

Others(supra).

[25] With regard to the contention of the learned PP

that the owner is not entitled to release of the vehicle as

he has not come forward within 30 days from the date of

seizure of the vehicle, Mr.Lodh learned counsel of the

petitioner has relied on the decision of this court in the

case of Balkrishna (supra) wherein this court has viewed

as under:

"8. The proviso of sub-section (2) of Section 63 of the NDPS Act is relevant to decide the issue raised by learned counsels appearing for the parties. A bare reading of the said proviso makes it aptly clear that an order of confiscation of an article or thing shall be made after expiry of one month from the date of seizure. In other words, an order of confiscation of any article or thing cannot be made by the court within one month from the date of seizure i.e. the court may pass an order of confiscation after expiry of one month. In the opinion of this court, the said proviso of sub-

section (2) of Section 63 of the NDPS Act does not

contemplate that the owner of the said vehicle cannot file an application for releasing his/her vehicle after expiry of one month. In the instant case, till today no confiscation proceeding has been initiated after expiry of one month from the date of seizure. It is not the mandate of law as embodied under the proviso of subsection (2) of Section 63 of the NDPS Act that a court must make an order of confiscation after expiry of one month from the date of seizure. The law makers have used the word "may" in sub section (2) of Section 63 of the NDPS Act which means that court is not legally bound to pass an order of confiscation in all the cases as a matter of routine. In the case of Kishan Singh (supra), this court after placing reliance upon the judgment of the Hon'ble Supreme Court of the Union of India Vrs. Mohanlal, reported in (2016) 3 SCC 379 has observed thus:

"Where no one claims the ownership of the vehicle within the stipulated time of 30 days, the court may direct the Drug Disposal Committee for disposal by sale."

9. The above proposition of law, in my opinion, does not support the plea of the State-respondent that the owner of the vehicle has to file an application for releasing the vehicle on bail within 30 days. What the court has meant to say, that, in case no owner comes forward to claim the ownership of the vehicle within 30 days, then, the court may pass an order directing the Drug Disposal Committee for disposal of the vehicle by sale. In no way it bars the owner to approach the court and file an application for releasing the vehicle after expiry of 30 days.

10. In the light of above analysis; on law, particularly, the proviso of sub-section (2) of Section 63 of the NDPS Act, in my opinion, the learned Special Judge has misconstrued the judgment of this court in Kishan Singh (supra) qua

Section 63 of the NDPS Act. Accordingly, the learned Special Judge has committed an error of law in rejecting the application of the petitioner for releasing the vehicle in question on bail. As a corollary, the owner of the vehicle may file an application for bail at any stage of the proceeding or even during the proceeding of confiscation"

[26] In view of what has been discussed herein

above, I am inclined to bail out the vehicle bearing

registration No.BR 06-G-7004 which has been seized in

connection with Bisramganj P.S. case No. 07/2022.

[27] It is directed that the said vehicle bearing

registration No.BR-06-G-7004 be released to its registered

owner on furnishing bail bond of Rs.10,00,000/-(Ten

lakhs)only supported by 02 local sureties of the like

amount and on realizing the specific undertaking from the

sureties that if the vehicle is not produced on asking or

there is no participation in the confiscation proceeding by

the registered owner, the sureties shall be equally liable to

tender the said amount to the trial court and under the

following terms and conditions:

(i) The owner of the vehicle shall keep the vehicle in good condition and he will not

transfer the vehicle or bring about any change in the vehicle in any manner, whatsoever, until disposal of the case pending before the trial court and the confiscation proceeding, if any.

(ii) The vehicle shall be produced by the owner as and when directed.

[28] The owner is directed to submit the bail bond

along with the original documents of the vehicle before the

trial court. Learned trial judge will verify the documents

and having been satisfied about the authenticity of his

claim about the ownership of the vehicle and suitability of

each of the sureties including their financial capability to

pay the penalty in the event of owner's default, shall issue

release order of the vehicle under the terms and conditions

as stated above.