KERALA HIGH COURT
B. Sudheendra Kumar, J.
B. Hassainar Azeez —Petitioner
versus
State of Kerala —Respondent
Crl.MC.No.2138 of 2017
Decided on 12.4.2017

IMPORTANT POINT
Vehicles seized under the N.D.P.S. Act can be released to the interim custody of the registered owner of the vehicle under Section 451 of the Code, even if the accused himself is the registered owner.

Headnote:Criminal Procedure Code, 1973—Section 451—NDPS Act, 1985—Sections 60 and 63—Vehicle seized when found being used for carrying/transporting contraband-interim custody of vehicle—Such a vehicle is liable to confiscation and confiscation order can be made by court only at the end of trial only after by court only at the end of trial only after hearing the person who may claim any right thereto and then considering the evidence, if any, which the may produce—No specific provision in NDPS Act which expressly or impliedly excluded operation of Section 451 Cr.P.C.—Consideration for court in handing over interim custody of vehicle to registered owner would be that vehicle must be produced in court—It is imperative on part of court to hand over interim custody of vehicle.

       Held: On a combined reading of Section 63 and sub-section (3) of Section 60 of the NDPS Act, it is clear that when any conveyance used for carrying any narcotic drug or psychotropic substance is liable to confiscation, the confiscation order can be made by the court only at the end of the trial and that itself, only after hearing the person who may claim any right thereto and considering the evidence, if any, which he may produce in support of the claim.

       There is no provision under the NDPS Act, which empowers the trial court to make an order for granting interim custody of such a conveyance, pending trial. Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure shall apply, in so far as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 5 of Cr.P.C. provides that nothing in the code shall affect any special law. A special law is a law applicable to a particular subject. The existence of a special law does not exclude the operation of the Code unless the special law expressly or impliedly provides in that regard, in which case, special law will apply. There is no specific provision in the NDPS Act which expressly or impliedly excludes the operation of Section 451 of the Code. The provisions of Section 451 of the Code are also not inconsistent with any of the provisions of the NDPS Act, including Sections 60(3) and 63 of the NDPS Act. Therefore, the court can invoke the general provisions of Section 451 of the Code for handing over the interim custody of the seized vehicle, pending the final decision of the criminal case. The only consideration on the part of the court in handing over the interim custody of the vehicle to the registered owner is that the registered owner of the vehicle must produce the vehicle before the court for trial and also for the purpose of confiscation, if required by the court and for securing that the said vehicle is not used in similar type of offence in future.

       Going by the directions issued by the Apex Court in Sunderbhai Ambalal Desai (supra), it is imperative on the part of the court to hand over the interim custody of the vehicle seized to the registered owner and if the registered owner is not prepared to accept the same, to the insurance company. It was observed by the Apex Court that in case, where the vehicle is not claimed by the accused, owner or the insurance company or by any third person, then the said vehicle may be ordered to be auctioned by the court. It is very much clear from the decision in Sunderbhai Ambalal Desai (supra) that it is the duty of the court to ensure that the vehicle seized in connection with any offence will not be kept in the police station or in the court premises indefinitely till the completion of the trial and the subsequent confiscation. If the vehicles are kept in the police station or in the court premises indefinitely, due to the ruining of the vehicle in sun and rain, the value of the vehicle will be diminished considerably and at the time of confiscation, the vehicle will be only a scrap. In order to avert that situation, it is necessary to release the vehicle to the interim custody of the registered owner of the vehicle.

       The upshot of the above discussion is that the vehicles seized under the N.D.P.S. Act can be released to the interim custody of the registered owner of the vehicle under Section 451 of the Code, even if the accused himself is the registered owner. Before granting interim custody of the vehicle, appropriate photographs of the vehicle should be taken and detailed panchnama should be prepared and the vehicle can be handed over to the registered owner only by taking appropriate bond and guarantee as well as security for return of the said vehicle if required by the court at any point of time. If the accused himself is the registered owner, the vehicle can be released to the accused only after taking appropriate bond and also bank guarantee equivalent to the value of the vehicle, for securing the production of the vehicle for identification before the court and also for confiscation, if required by the court. It is proper to assess the value of the vehicle by a mechanical Engineer of PWD.

       The consideration will be different if the owner is not the accused. If the owner is not the accused, the owner may be able to prove that the vehicle was so used without the knowledge or connivance of the owner and that the owner had taken all reasonable precautions against such use. Therefore, if the registered owner claiming the property is not the accused, the court will be justified in releasing the vehicle to the owner on executing sufficient bond with solvent sureties. The claimant must also satisfy the court that he is the registered owner of the vehicle. The court must also make a condition that the owner should not transfer the vehicle or otherwise dispose of the vehicle without the permission of the court. In all cases, the court will also direct the owner to give an undertaking that the vehicle will not be used for any other similar purpose. However, if the vehicle once released on interim custody is used again for a similar offence, the bond amount will have to be forfeited and the vehicle will be subsequently released on interim custody only on furnishing the bank guarantee for the value of the vehicle and on executing sufficient bond with solvent sureties, even if the registered owner is not the accused. (Paras 7, 8, 13, 15, 17)

       Result: Petition allowed.