The owner's lack of knowledge of the illegal activity and failure to take reasonable precautions does not prevent confiscation of a vehicle used in the commission of an offence under the NDPS Act.

JUDGMENT :

Chander Bhusan Barowalia, J.

1. The instant revision petition, under section 397 of the Code of Criminal Procedure, 1973 has been maintained by the petitioner against the order of learned Additional Sessions Judge, Fast Track, Kullu, whereby order passed by the learned Judicial Magistrate 1st Class, Manali, set aside and motorcycle bearing registration No. HP-34-A-1783, has been ordered to be confiscated to the State of Himachal Pradesh, under Section 60 (3) of the Narcotic Drugs and Psychotropic Substances, Act.

2. The key facts, giving rise to the present petition are that a criminal case No. 352-1 of 06-59-III of 06, titled State v. Om Prakash and others, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (hereinafter referred to as 'NDPS Act') was disposed of by the Court of learned Judicial Magistrate 1st Class, Manali, in which, accused persons were convicted. The vehicle bearing registration No. HP-34-A-1783, owner by the petitioner, which was being used in the commission of offence. Therefore, a notice, under Section 60 of NDPS Act, was issued to him to show cause, as to why the said vehicle be not confiscated to the State. A reply was filed by the petitioner and it is averred that he had not committed the offence nor he had indulged in the commission of offence. The offence was committed by the accused persons without his knowledge. The vehicle in question was given to accused Om Prakash, on his request, as he had an urgent work at Manali. The petitioner had no knowledge or fault, as he had given the motorcycle in good faith to Om Prakash. The evidence was, recorded by the learned trial Court, wherein it was held that the petitioner handed over his vehicle to Om Prakash, in good faith and he was not having any knowledge, Om Prakash would carry charas in the vehicle. Therefore, the vehicle (was used without knowledge and connivance of the petitioner and it was not liable for confiscation. Thereafter, the State maintained the revision petition before the learned Additional Sessions Judge, Fast Track, Kullu and the learned trial Court, vide impugned order to set aside the order passed by the learned Court below and ordered for confiscation of the vehicle.

3. It is on record that the vehicle bearing registration No. HP-34-A-1783, was being used by the accused for the commission of offence punishable under Sections 20 and 29 of the NDPS, Act. Admittedly, the vehicle is owned by the petitioner. He has stated that he is rightful owner of the vehicle and he recognized the accused Om Prakash, as his friend and they have cordial relations. He has further stated that accused Om Prakash told him that his vehicle was required for one hour, as he had to go to Manali Hospital. In his cross-examination, he has not been able to show anything that the petitioner had knowledge that his vehicle was being used by the accused. He has also denied that he had any knowledge qua carrying of charas by the accused Om Prakash, on his vehicle. Thus, statement of the petitioner has remained unshattered. It is evident that the petitioner had handed over his vehicle to accused Om Prakash in good faith being his friend and he was not having any knowledge that accused Om Prakash would carry charas on his vehicle and also would use his vehicle for committing offence punishable under Section 20 of the NDPS Act.

4. It is abundantly clear that motorcycle was being used by the accused persons without connivance. However, Section 60 (3) of the NDPS Act, provides that if the vehicle is used without knowledge of the owner whether anything is carried in it or not, is of no consequence. In the present case also, the vehicle was being used by the accused persons and it was within the knowledge of owner that his vehicle being used by the accused. Now whether it is used for the purpose of carrying narcotics or otherwise, is of no consequence, the owner has no knowledge with regard to that is of no consequence. In view of Secti