SHORT NOTE
PATNA HIGH COURT
Jitendra Kumar, J.
Bhola Singh @ Ayush Singh Son of Markandey Singh – Petitioner
Versus
The State of Bihar – Opp Parties
Criminal Miscellaneous No.40912 of 2016
Decided on 5.1.2024

IMPORTANT POINT
Confiscation and release of vehicle – Decision regarding confiscation of any article can be taken only by Special Court and only after conviction, acquittal or discharge – There is no provision for passing any order by Special Court for interim release during pendency of trial or confiscation proceeding before itself.

Headnote:

(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 60, 63 and 36C – Criminal Procedure Code, 1973 – Sections 5 and 451 – Confiscation and release of vehicle – If owner of vehicle/conveyance proves that his vehicle was used in commission of offence without his knowledge or connivance and he has taken all reasonable precautions against such use, conveyance cannot be confiscated despite it being used in commission of alleged offence under NDPS Act – Decision regarding confiscation of any article can be taken only by Special Court and only after conviction, acquittal or discharge – Pre-trial disposal of conveyance/vehicles is possible under Notification dated 16.01.2015 only if no one claims right to possession and interim release of vehicle under provision of Section 60 and 63 of NDPS Act – If anybody claims for release of vehicle, Special Court has to hear him to decide liability of vehicle to confiscation and if it is proved by claimant that he has right to possess vehicle and it has not been used in commission of offence with his knowledge or connivance and he had taken all precautions against such use, vehicle cannot be confiscated and disposed of by State – There is no provision for passing any order by Special Court for interim release during pendency of trial or confiscation proceeding before itself.

From perusal of Section 60 and 63 of the NDPS Act, it transpires that Section 60 deals with liability of illicit drugs, substances, plants, materials, apparatus, utensils in respect of which or by means of which such offence has been committed under the NDPS Act, are liable to confiscation. However, Sub- Section-3 of Section 60 provides that any animal or conveyance used in carrying any narcotic drug or psychotropic substance or any article liable to confiscation under Sub-Section 1 or under 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. In other words, if the owner of the vehicle/conveyance proves that his vehicle was used in the commission of the offence without his knowledge or connivance and he has taken all reasonable precautions against such use, the conveyance cannot be confiscated despite it being used in the commission of the alleged offence under the NDPS Act.

A detailed procedure in making confiscation has been provided in Section 63 of the NDPS Act. As per Section 63 of the Act, irrespective of conviction, acquittal or discharge of the accused, the Special Court is required to decide whether any article or thing seized under this Act is liable to confiscation. If the court decides that the article is so liable, it may order confiscation accordingly. It implies that decision regarding confiscation of any article can be taken only by the Special Court and only after conviction, acquittal or discharge.

From the aforesaid provisions of Standing Order bearing no. 1/88 and Standing Order 2/88, it transpires that approval of Special Court is required for disposal of contraband drugs or conveyance. However, as per Notification dated 16.01.2015, there is no such requirement for disposal of contraband drugs or conveyances. Only the prepared inventory of the contraband drugs and conveyance is required to be certified by any Magistrate before disposal. In other words, as per the Notification dated 16.01.2015, pre-trial disposal of contraband drugs and conveyances has been provided without approval of the Special Court. However, such provision of the Notification cannot be read in isolation. It has to be read with Sections 60 and Section 63 of the NDPS Act. As per Section 60(3), any animal or conveyance is liable to confiscation only if the owner thereof fails to prove that it was used without his knowledge or connivance and he had not taken all reasonable precautions against such use. Sub- Section 2 of Section 63 also provides that no order of confiscation or article or thing shall be made until the expiry of one month from the date of seizure or without hearing any person who made claim any right thereto and the evidence if any which he produces in respect of his claim. As such, as per conjoint reading of Section 60 and 63 of the NDPS Act and the Notification dated 16.01.2015, it transpires that pre-trial disposal of conveyance/vehicles is possible under Notification dated 16.01.2015 only if no one claims right to possession and interim release of vehicle under the provision of Section 60 and 63 of the NDPS Act. If anybody claims for release of the vehicle, the Special Court has to hear him to decide liablity of the vehicle to confiscation and if it is proved by the claimant that he has right to possess the vehicle and it has not been used in commission of the offence with his knowledg or connivance and he had taken all precautions against such use, the vehicle cannot be confiscated and disposed of by the State. This position of law is not affected even by the judgment of Hon’ble Supreme Court in Mohan Lal v. Union of India as reported in (2016) 3 SCC 379 dealing with handling and disposal of seized Narcotic Drugs and Psychotropic Substance, giving directions to prevent re-circulation of seized contraband drugs into the system.

The aforesaid discussions clearly shows that in case of any article, thing or conveyance/vehicle is claimed by any person as provided under Sections 60 and 63 of the NDPS Act, the Special Court is duty bound to decide the liability of that thing, article or vehicles to confiscation and only if it is decided by the Special Court that such article, thing or vehicle is liable to confiscation, the disposal committee can dispose it by sale or otherwise.

It further transpires that under Section 60 and 63 of the NDPS Act, there is no provision for passing any order by the Special Court for interim release during pendency of the trial or confiscation proceeding before itself. In such a situation, now question is whether Special Court has any jurisdiction to pass any order to release vehicle/article to interim custody of the rightful owner or not.

Here Sections 36C of the NDPS Act, becomes relevant, as per which, the provisions of the CrPC is applicable if it is not inconsistent or contrary to the provisions of the NDPS Act which is a special enactment. Section 5 of the CrPC also provides that the provisions of CrPC is applicable in case of special enactments only if there is such provisions in that special enactment. In such situation, Section 451 of the CrPC becomes applicable to the proceedings before the Special Court established under the NDPS Act, because Section 451 CrPC provides for order for custody and disposal of property pending inquiry and trial in certain cases. It’s an application to the proceedings before the Special Court of NDPS Act is reinforced by the fact that there is no bar to pass any interim order releasing vehicle or articles to rightful owner during pendency of the trial or confiscation proceeding.

(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 60 and 63 – Criminal Procedure Code, 1973 – Sections 451 and 457 – Confiscation and release of vehicle – Confiscation proceedings is initiated and conducted by special court as established under NDPS Act – Provisions of Cr.P.C. are applicable to proceedings before Special Courts established under NDPS Act to the extent they are not inconsistent or contrary to provisions in NDPS Act which is a special enactment – During pendency of trial and confiscation proceedings, Special Court is empowered to release an article, thing or vehicle to interim custody of rightful owner subject to conditions to ensure that such article, thing or vehicle are produced before the court as and when required during trial and confiscation proceedings – Provisions of confiscation in Section 60 and 63 of NDPS Act or seriousness of allegation levelled against petitioner cannot be grounds for refusal to release an article, thing or vehicle to interim custody of their rightful owners.

Held: After the aforesaid discussions, it is concluded as follows:-

(i) The confiscation proceedings is initiated and conducted by the special court as established under the NDPS Act,

(ii) It is the Special Court which decides the liability of an article, thing or vehicle to confiscation and such decision is taken by the Special Court after conviction, acquittal or discharge of the accused.

(iii) The provisions of the CrPC are applicable to the proceedings before Special Courts established under the NDPS Act to the extent they are not inconsistent or contrary to provisions in the NDPS Act which is a special enactment.

(iv) During pendency of the trial and confiscation proceedings, the Special Court is empowered to release an article, thing or vehicle to interim custody of the rightful owner subject to conditions to ensure that such article, thing or vehicle are produced before the court as and when required during trial and confiscation proceedings.

(v) The provisions of confiscation in Section 60 and 63 of the NDPS Act or seriousness of the allegation levelled against the petitioner cannot be grounds for refusal to release an article, thing or vehicle to interim custody of their rightful owners.

(C) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8, 20 and 22 – Criminal Procedure Code, 1973 – Sections 451 and 457 – Seizure of Ganja – Confiscation and release of vehicle – Keeping vehicle or article in safe condition in police station is no ground to refuse release of same to interim custody of rightful owners, otherwise, they would turn into scrap/junk in course of time and it would be wastage of national resources – Nature of allegation levelled against applicant is also no ground to deny interim custody of vehicle, article or thing to rightful owner – There was no reason to reject application of petitioner for its release to interim custody of applicant claiming to be bona fide owner of vehicle subject to certain conditions to ensure production of vehicle to court as and when required during pendency of trial or confiscation proceeding.

After the aforesaid discussions, it is concluded as follows:-

(i) The confiscation proceedings is initiated and conducted by the special court as established under the NDPS Act,

(ii) It is the Special Court which decides the liability of an article, thing or vehicle to confiscation and such decision is taken by the Special Court after conviction, acquittal or discharge of the accused.

(iii) The provisions of the CrPC are applicable to the proceedings before Special Courts established under the NDPS Act to the extent they are not inconsistent or contrary to provisions in the NDPS Act which is a special enactment.

(iv) During pendency of the trial and confiscation proceedings, the Special Court is empowered to release an article, thing or vehicle to interim custody of the rightful owner subject to conditions to ensure that such article, thing or vehicle are produced before the court as and when required during trial and confiscation proceedings.

(v) The provisions of confiscation in Section 60 and 63 of the NDPS Act or seriousness of the allegation levelled against the petitioner cannot be grounds for refusal to release an article, thing or vehicle to interim custody of their rightful owners.

Now coming to the case at hand, I find that the court below had sought report from the police whether confiscation proceeding has been initiated in regard to the vehicle and the mobile in question. I also find that the court below has rejected the application of the petitioner for releasing the vehicle and mobile in view of the fact that the same are kept in campus of police station in safe condition and on the ground that there is allegation of serious offence against the applicant. However, I have already found as per the statutory provisions and case laws that Ld. Special Court had no occasion to seek report regarding confiscation proceeding by the police or other authority because the Special Court itself is the authority to initiate confiscation proceeding and decide liability of any thing, article or vehicle seized in the case registered under the NDPS Act to confiscation. Moreover, keeping the vehicle or article in safe condition in police station is also no ground to refuse the release of the same to interim custody of the rightful owners, otherwise, they would turn into scrap/junk in course of time and it would be wastage of national resources. Nature of allegation levelled against the applicant is also no ground to deny the interim custody of the vehicle, article or thing to the rightful owner. In case of mobile and its SIM, the case might be different, because electronic items are susceptible to be tampered with and they may lose its evidentiary value if released during pendency of the trial. 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 trial or confiscation proceeding.

Hence, the petition is part allowed rejecting the prayer of the petitioner to release the mobile of Gionee Company bearing IMEI No. 8676450205 and its sim of mobile No. 9628877640. However, the prayer to release the motorcycle bearing No. U.P. 52 AF 8259 to the petitioner is allowed subject to the following conditions:-

(i) The petitioner shall furnish bank guarantee of rupees twenty five thousand before the trial court.

(ii) The petitioner shall produce the seized vehicle before the trial Court as and when called for during the trial and also during the confiscation proceeding if any such proceeding is initiated.

(iii) The petitioner shall not alienate the seized vehicle or change its nature and character during the pendency of the case.

(iv) The seized vehicle shall not be used for the commission of any offence.”

(v) The vehicle, before its release, should be properly photograhped and the photograph will be made part of record. Engine number and chasis number of the motorycycle should be also noted for future reference.