The unique condition of abatement of trial and the financial situation of the deceased's family influenced the court's decision to release the seized amount in favor of the deceased accused's widow.

JUDGMENT

Pushpendra Singh Bhati, J. - Learned counsel for the petitioner submits that the accused Deva Ram was arrested and charged under Section 8/15 of the NDPS Act. Learned counsel further submits that from the possession of Deva Ram, 4 kg 200 gms of poppy husk/straw was recovered and also an amount of Rs. 4,91,100/- was recovered.

2. Learned counsel for the petitioner further submits that before the trial could be completed, the accused-Devaram died and he is survived by his wife and two small children. Learned counsel further submits that wife and minor children do not have much means for survival and the amount which belonged to deceased Devaram ought to be released to his wife and children.

3. Learned counsel for the petitioner also submits that NDPS Act envisages acquittal and conviction, but there is no direct law upon abatement and since the trial itself is abated, therefore, any kind of proof regarding the amount having been a sale proceeds would not be possible. Learned counsel further submits that the provisions of Sections 60, 61, 62 & 63 of NDPS Act deal with the situation where the person is acquitted or convicted but here is in the present case, the trial has abated because the accused is died and wife and minor children are seeking the amount to be released in their favour.

4. Learned counsel for the petitioner has relied upon the judgment rendered by Hon'ble Delhi High Court in Jagwat Prasad v. Delhi Administration reported in 1992 (2) RCR (Criminal) 460, relevant para of the judgment reads as under:-

"(6) No doubt this section provides that whether the accused is convicted or acquitted or discharged still the Court has the power to confiscate provided the matter falls under Section 60, 61 or 62 of the said Act. In the facts and circumstances of this case it is to be seen whether the case of the petitioner is covered either under Section 60, 61 or 62 and if not why should his money be not returned. Counsel for the State admits that the case is not covered under Section 60 or 61 but contended that this case is covered under Section 62. I am afraid, I am not in agreement with the contention of the learned counsel for the State because the bare reading of Section 62 makes it clear that the prosecution has to have a prima facie evidence to link this amount with the sale proceeds of any drug. Merely because the amount of Rs. 55,000.00 was lying at the same place wherever 50 grams, of heroin was recovered, to my mind, would not show that it was the amount of a sale of any drug. On the contrary petitioner has prima facie Filed evidence indicating that this amount he collected and saved for the marriage of his youngest daughter. Prosecution ought to have verified this fact of loan and sale of scooter. In response to the petitioner's application before learned A.C.M.M., the defense taken was that this amount must have been earned by selling heroin because the accused has no other source of income. He was trading in heroin and since the amount and the heroin was recovered from the same place, therefore, presumption should be drawn that it was from the sale of the drug. This reply does not indicate that the prosecution is sure that the amount of Rs. 55,000.00 was the sale proceeds of any drug or subsistence as required under section 62 of the said Act. Mr. Grover further contended that the provision of Section 68A would apply to the facts of this case. I think this contention of Mr. Grover cannot be accepted. It is not only when the case is finally determined and the person is held guilty that the Court would have the jurisdiction to confiscate the article or the drug as the case may be. In fact Section 63 gives ample power to the Court to confiscate any article or things seized under this Act irrespective of the fact whether the accused is convicted, acquitted or discharged. The question for determination at the moment is not whether the amount of Rs. 55,000.00 can be confiscated at this stage or not but whether this amoun