IMPORTANT POINT
Whereas the article or thing seized in the case belongs to another person, after passing of an order of discharge in favour of the accused or passing of a judgment either of conviction or acquittal after holding trial, notice must be issued to the owner of the article or thing, at the relevant time of commission of the offence by the accused and an independent enquiry must be held simultaneous to the passing of the order or judgment as above by affording him with reasonable opportunity of being heard.

ORDER :

This Crl.M.C is filed challenging an order passed by Judicial First Class Magistrate Court, Kuthuparamba (for short, 'the court below') in C.M.P No.5398/2018 in C.C No.841/2018. By the order, the court below has dismissed the application filed by the petitioner under Section 452 Cr.P.C for getting the custody of the vehicle released in her favour.

2. The averments of the petitioner in C.M.P No.5398/2018 filed for the purpose were that she was the owner of the vehicle bearing Registration No. KL-13-AJ-3354, which was allegedly involved in an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act), that she has no involvement in the offence with reference to which the vehicle was seized, that the accused in the case has pleaded guilty and that he was convicted and sentenced for the offence on 31.08.2018. It is averred by the petitioner that a notice under Sub section (3) of Section 60 of the NDPS Act had been given to her as a pre-step for disposal of the property in C.C No.841/2018. Responding to the notice, she has filed an affidavit stating that the vehicle was not used by her for transportation of Ganja but was given to the accused, a friend of her husband only for his personal use. The court after verification of the case records found that 48 grams of Ganja was seized from the possession of the accused while he was traveling in the aforesaid motorcycle. In the FI Statement lodged, it was alleged that the accused was sitting on the motorcycle and on noticing the approach of the Police to him, he had attempted to escape by starting the motorcycle. In the search held in his body, six packets of Ganja were recovered. The vehicle was also examined and, one packet containing Ganja kept concealed in its battery was also seized. Thus altogether 48 grams of Ganja was seized from the possession of the accused. Therefore, alleging that the vehicle was used for transportation of Ganja, a crime was registered against him and after holding investigation, he was chargesheeted for illegal possession of Ganja.

3. On entering appearance itself the accused pleaded guilty and was convicted and sentenced. In that context, the owner of the vehicle has approached this Court by filing C.M.P No.5398/2018 under Section 452 Cr.P.C for getting the vehicle released to him.

4. Section 60 of the NDPS Act deals with the liability of illicit drugs, substances, plants, articles and conveyances to confiscation. Section 61 deals with confiscation of goods used for concealing illicit drugs or substances. Section 62 deals with confiscation of sale proceeds of illicit drugs or substances and Section 63 deals with procedure while making confiscations.

5. Section 63 of the NDPS Act being relevant in the context is extracted hereunder;

“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 for 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, or controlled substance, the opium poppy, cocoa plant or cannabis plant is liable to speedy and natural decay, or if the Cour