TaxTMI 
TaxTMI 
2025 (1) TMI 415
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....ty rupees) and according to the appellant, it is his only source of income. 4. On 10th April, 2023, the Vehicle was coming from Dimapur side and was signaled to stop at naka checking point. The Police officer searched the Vehicle and found two identical soap boxes containing suspected heroin which was covered in black polythene, kept concealed inside the Tarpaulin and kept at the hood of the Vehicle. 5. The main accused namely, Md. Dimpul, in this connection, was arrested by the Police Officer. After a field test, the said suspected substance was confirmed to be 24.8 gms. of heroin. ARGUMENTS ON BEHALF OF THE APPELLANT 6. According to the appellant, accused-Md. Dimpul boarded the Vehicle from Manipur as is stated by the driver of the Vehicle namely Joherul Ali. It is averred in the petition that neither the appellant (owner of the truck) nor his driver was aware that the said accused-Md. Dimpul was in possession of the said substance and was carrying the same. Moreover, the driver and helper have been cited as witnesses in the case as according to the appellant they were not involved in the offence. 7. The remand report of the arrested person clearly states that the ....
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....ccupation: (x) Address: 1 Present Address No.2 Meda, Charaibari, SORBHOG, BARPETA, ASSAM, INDIA 2 Permanent Address No.2 Meda, Charaibari, SORBHOG,BARPETA, ASSAM, INDIA Whether verified: Yes Regular Criminal No. : (xii) Date of arrest: 10/04/2023 (xiii) Date of release on bail: (xiv) Date on which forwarded to court: (xv) Under Acts & Sections : S.No. Acts Sections (xvi) Details of bailers / sureties: N.C.R.B. L.I.F.-V Name: Father's / Husband's name: Occupation: Address: S.No. Address Type Address Identification: Date of Birth: UID Number: Any Other ID Proof: S.No. Id Type ID Number (xvii) Previous conviction with case references: S. No FIR No. State District Police Station Description of case Details of Conviction / Acquittal (xvii) Status of the accused: FORWARDED TO COURT 12. Particulars of accused person - not charge sheeted (suspect): 13. Particular of witnesses to be examined : S.No Name Father's/ Husband's name Dated/ Year of bir....
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....t Bh. Rai 1971 Present Address: BONGAIGA ON,BON GAIGAON, ASSAM, INDIA Search & siege Witness 14. If FR is false (F.R. false), indicate action taken or proposed to be taken u/s 182/211 I.P.C /217/248 B.N.S: 15. Result of Laboratory analysis : 16. Brief facts of the case : The brief of the case is that on 10/04/2023 informant SI (UB) Rajib Borah of Dillai PS lodged an FIR at PS stating that based on a specific information received from reliable source, a Naka checking was conducted by self along with ASI Jiten Gogoi, Ic Lahorijan and staff on NH 36 in front of Lahorijan PP. During checking at about 06:20 AM one Truck B/R No. AS 01 NC 4355 which was coming from Dimapur side was signaled to stop at Naka checking point and the vehicle stopped. After receiving authorization from SDPO Bokajan to search the vehicle, I have served Notice U/S 50 NDPS Act to the driver of the said vehicle whom I have explained about the notice Clearly and on their concerned I along with my staff started search of the vehicle in presence of independent witnesses. On thorough search of the vehicle, total 02 (two) nos, identical soap boxes containing suspect....
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....ist, Barpeta Honble court for trial against him under aforementioned section of Law. 17. Refer Notice served : No Date: 18. Dispatched on: 19. No. of enclosures 4 20. List of enclosures: As annexed: IIF1.pdf, IIF2.pdf, IIF3-1.pdf, IIF4-1 pdf Forwarded by Officer in charge Name: Nitul Saikia Rank: SI (Sub-Inspector) No.: Signature of Investigation Officer submitting final report/charge sheet Name: SARAT KAKOTI Rank: SI (Sub-Inspector) No.:" 9. Learned counsel for the appellant stated that the Vehicle since seized has been lying unattended at the Police station campus and the same is lying exposed to sun and rain thereby rendering it to natural wear and tear and deterioration. He referred to and relied upon Sections 451 and 457 of the Code of Criminal Procedure ('for short 'Cr.P.C.') to seek release of the Vehicle. The relevant portions of Sections 451 and 457 of Cr.P.C. are reproduced hereinbelow:- "451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any criminal court during any inquiry or trial, the....
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....40912/2016, has held that "...... As far as vehicle is concerned, there was no reason to reject the application of the petitioner for its release to interim custody of the applicant claiming to be bona fide owner of the vehicle subject to the certain conditions to ensure production of the vehicle to the court as and when required during pendency of the trail or confiscation proceeding........." 12. In view of the above judgments, he prayed that the Vehicle be released to the appellant, being its rightful owner, subject to conditions as may be imposed by the trial Court. ARGUMENTS ON BEHALF OF THE RESPONDENT-STATE OF ASSAM 13. Per contra, learned counsel for the respondent-State of Assam submitted that the NDPS Act, which deals with drug trafficking, is a special enactment and a complete code in itself. [See: Noor Aga vs. State of Punjab & Another, (2008) 16 SCC 417; Mukesh Singh vs. State (Narcotic Branch of Delhi), (2020) 10 SCC 120 and Directorate of Revenue Intelligence vs. Amit Kumar, 2016 SCC OnLine Del 6083]. According to her, the NDPS Act does not - unlike the Code of Criminal Procedure - contemplate interim release of a seized conveyance during pendency of the tria....
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....psychotropic substance [or controlled substances] which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance [or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation. (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance [or controlled substances], or any article liable to confiscation under sub-section (1) or subsection (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. v. Second Proviso to Section 63 of the NDPS Act: 63. ........ Provided further that if any such article or thing, other than a narcotic drug, psychotropic substances [controlled substance], the opium poppy, coca plant or cannabis p....
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....offence is not made available to the persons who have indulged in these activities. They shall not have the benefit of such a vehicle. By and large if an accused person is himself the owner of the vehicle and he uses such a vehicle for the purpose of conveying the drugs, then of course, it is possible for the prosecution to contend that it is against the interest of Justice that such a vehicle be given to the accused pending the trial. But in a given case, it might be that a vehicle belonging to innocent owner is stolen by the accused, and in that event, seized by the officer, it does not mean that such an owner has to wait till the trial is completed for the purpose of getting an order of return of the vehicle from the Magistrate. In such cases, subject to a guarantee that the vehicle becomes available for the purpose of confiscation, if any, the Court has necessarily the Jurisdiction to pass an order for interim custody either under S. 451 or S. 457(1) of the Criminal P.C. as the case may be. An order under S. 451 or S. 457(1) of the Criminal P.C. Guarantees return of the vehicle at the time of the final hearing of the matter, or as and when called upon by the Court. It secures, ....
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.... for such conveyance is not made available to the persons indulging in these activities. Confiscation of the vehicle is an additional safeguard to discourage this crime. 16. As already noticed, the vehicle has been kept secured in a garage and it is not lying in open and as such there is no danger of it being damaged by vagaries of weather. If the vehicle is returned to the petitioner and ultimately it is held that it is liable to be confiscated, its use by the petitioner will benefit the petitioner and defeat the purpose and object of the Act and when ultimately it is to be confiscated it would have lost its value. Moreover, accused Amar Pal Singh is the husband of the petitioner Smt. Narender Kaur. In his statement made before the investigating officer on 25-3-1997 under Section 67 of the Act, he has stated that this car was purchased in the year 1997 and was a second-hand one; it is in the name of his wife but was purchased by them after selling another Car No. DL-2C B- 3835; some amount was contributed by his wife and some amount was contributed by him. In the circumstances, it is also not certain whether the car exclusively belongs to the petitioner. It is also seen t....
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....d to be dangerous to the entire society. In the absence of any definition of "owner" in the NDPS Act, it would be reasonable for us to construe that the expression "owner" must be held to mean the "registered owner" of the vehicle in whose name the vehicle stands registered under the provisions of the Motor Vehicles Act. 3. In view of the aforesaid interpretation of the expression "owner" in sub-section (3) of Section 60 of the NDPS Act, the appellant cannot be permitted to urge that the order for confiscation is bad as he had no knowledge of the fact that the vehicle was used for carrying any narcotic substances. The High Court, therefore, in our opinion, was justified in rejecting the contention of the appellant that the truck in question having been taken on a hire-purchase agreement, for the purpose of sub-section (3) of Section 60, the appellant shall be treated to be the owner." C. Union of India vs. Dinesh Kumar Verma, (2005) 9 SCC 330 wherein it has been held as under:- "3. By the impugned order, the High Court has directed for release of the vehicle during trial of the accused for violation of the provisions of the Narcotic Drugs and Psychotropic....
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....tion 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, 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 15 to 19 of this order. 31.2. 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 of 1989 to ensure proper security against theft, pilferage or replacement of the seized drugs. 31.3. 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....
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.... 14. Under the said provision 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 Act, to protect an innocent owner before confiscating his vehicle. 15. Accordingly, I am of the view that this is not an appropriate case where such prayer can be allowed and accordingly, the court below has not committed any error in rejecting the said prayer made by the petitioner and as such, the order impugned does not call for any interference." 16. She further stated that in the present case, the seized vehicle is a material evidence that directly links the accused to the commission of the offence, particularly since it was used as a means to transport and conceal the contraband substance. She stated that during the course of the trial, the seized vehicle will be required for inspection, demonstration or verification to substantiate the prosecution's case and to establish the manner in which the offence was committed. This, according to her, includes, but is not limited to, demonstrating the concealment of the contraband, its storage within the ....
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....any general proposition of law. Consequently, the issue would have to be examined on first principles. 21. Upon a reading of the NDPS Act, this Court is of the view that the seized vehicles can be confiscated by the trial court only on conclusion of the trial when the accused is convicted or acquitted or discharged. Further, even where the Court is of the view that the vehicle is liable for confiscation, it must give an opportunity of hearing to the person who may claim any right to the seized vehicle before passing an order of confiscation. However, the seized vehicle is not liable to confiscation if the owner of the seized vehicle can prove that the vehicle was used by the accused person without the owner's knowledge or connivance and that he had taken all reasonable precautions against such use of the seized vehicle by the accused person. 22. This Court is further of the opinion that there is no specific bar/restriction under the provisions of the NDPS Act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance in the interim pending disposal of the criminal case. 23. In the absence of any specific bar under the NDPS Act and in vie....
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....ugs/substances from conveyances can take place in a number of situations, yet broadly speaking there are four scenarios in which the drug or substance is seized from a conveyance. Firstly, where the owner of the vehicle is the person from whom the possession of contraband drugs/substance is recovered. Secondly, where the contraband is recovered from the possession of the agent of the owner i.e. like driver or cleaner hired by the owner. Thirdly, where the vehicle has been stolen by the accused and contraband is recovered from such stolen vehicle. Fourthly, where the contraband is seized / recovered from a third-party occupant (with or without consideration) of the vehicle without any allegation by the police that the contraband was stored and transported in the vehicle with the owner's knowledge and connivance. In the first two scenarios, the owner of the vehicle and/or his agent would necessarily be arrayed as an accused. In the third and fourth scenario, the owner of the vehicle and/or his agent would not be arrayed as an accused. 30. This Court is of the view that criminal law has not to be applied in a vacuum but to the facts of each case. Consequently, it is only in the fir....
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....ning 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 at 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 an appropriate case for release of the vehicle on terms and conditions to be determined by the Special Court. 9. The appeal is accordingly allowed leaving parties to bear their own costs." IF THE VEHICLE IN THE PRESENT CASE IS KEPT IN THE CUSTODY OF POLICE TILL THE TRIAL IS OVER, IT WILL SERVE NO PURPOSE 34. This Court is also of the view that if the Vehicle in the present case is allowed to be kept in the custody of police till the trial is over, it will serve no purpose. This Court takes judicial notice that vehicles in police custody are stored in the open. Consequently, if the Vehicle is not released during the trial, it will be wasted and suffering the vagaries of the weather, its value will only r....