Confiscation of a vehicle under the NDPS Act requires strict adherence to the procedure under Sections 60 and 63, specifically providing the owner an opportunity to prove the vehicle was used without their knowledge or connivance.

JUDGMENT :

B.V.L.N. CHAKRAVARTHI, J.

Heard Sri Mohammed Sayeed Uddin, learned counsel representing Sri Nuthalapati Krishna Murthy, learned counsel for the appellant, and Sri C.P. Somayaji, learned Additional Public Prosecutor, along with Sri A. Sai Rohit, learned Assistant Public Prosecutor, representing the respondent–State.

2. The present Criminal Appeal is preferred by the appellant, owner of the vehicle, i.e., Tata Sumo bearing Registration No. AP 04 K 3141 (hereinafter referred to as “the disputed vehicle”), which was confiscated, on the ground that it was used for transportation of narcotic substances seized in the case, vide judgment dated 08.12.2008 passed in NDPS S.C.No.14 of 2008 on the file of learned Special Sessions Judge for Trial of Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 – cum – I Additional Sessions Judge, East Godavari District, Rajahmundry.

3. The learned counsel for the appellant would submit that Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) reads as follows:

“60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation:

60.(3). Any animal or conveyance used in transporting any narcotic drug or psychotropic substance, [or controlled substances] 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.”

4. He would further submit that Section 63 of the NDPS Act prescribes as follows:

“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 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 or 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.”

5. In the present case, it is contended that the disputed vehicle was used without knowledge of the appellant, and that she had no connivance with the accused in transporting the narcotic substances. However, the learned Special Court did not issue any notice to the appellant, nor provide any opportunity to adduce evidence to establish her lack of knowledge or involvement. Therefore, the order of confiscation is not in accordance with Sections 60 and 63 of the NDPS Act.

6. He would submit that the appeal is maintainable against such an order of confiscation by the owner of the conveyance, in the light of Section 36-C of the NDPS Act, which reads as follows:

“36-C. Application of Code to proceedings before a Special Court-Save as otherwise provided in this Act, the provisions of the Code of Criminal Pro