The right to interim custody of a vehicle remains with an innocent owner pending trial under the NDPS Act, as long as it is consistent with the Cr.P.C.

1. On Aug. 31, 1987 the Bombay Customs, intercepted a taxi bearing registration No. MMO 2649 at the junction of Keshavji Naik Path and S.V. Road, Bombay - 400009. One Taj Mohd. Jan Mohd. Pathan was the driver and the sole occupant of the taxi, at the time of interception. It was found that the taxi was being used for carrying six packages weighing about 76 kgs. containing brown powder purported to be brown sugar and 18 kgs. of white powder purported to be Heroin. The said person was arrested and the taxi was seized under a panchanama. The accused has been charged under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") and the case is pending.

2. In the meanwhile on Jan. 29, 1988 the present respondent 1 made an application before the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, for return of the said taxi, on the basis that he is the owner of the said taxi, and that he has a taxi - permit and a valid motor driving licence, and that the taxi is lying at the Customs House unattended and its machinery is getting rusted since last several months, and that no useful purpose would be served by keeping the abovementioned taxi in the custody of the Customs authorities. On this application, the learned Magistrate issued a notice to the Customs Authorities, and after hearing both the parties, the learned Magistrate passed the following order :
"Taxi to be returned to applicant on his executing bond of Rs. 90,000/- with one surety in the like amount.
Taxi being a mechanically propelled vehicle is likely to be damaged if not in use and therefore it is expedient in the interest of justice to return the taxi to the registered owner (Applicant). Accused has given his no objection and under the N.D.P.S. Act court has power to pass order regarding disposal of vehicle."

3. It appears that Mr. Gupte, who appeared for the prosecution, brought to the notice of the Learned Magistrate various documents and material indicating how respondent 1 could not claim the taxi on the basis of ownership rights. However, there was no affidavit before the learned Magistrate in this behalf. So also the order is absolutely silent on all these aspects argued by Mr. Gupte, of which argument, I have no doubt whatsoever.

4. It is against this order, the Customs Authorities have filed the present criminal revision application.

5. Mr. Gupte advanced several propositions. Firstly, he contended that the learned Magistrate could have had no jurisdiction to pass any order for return of the taxi inasmuch as, the case is to be tried by the learned Sessions Judge and he alone has the jurisdiction to pass such an order. Secondly, he submitted that if one has regard for the scheme of the NDPS Act, 1985, there is no question of passing any interim order of handing over to any person, any conveyance, or vehicle pending the trial, which vehicle is liable to be confiscated ultimately. He further submitted that S.451 of the Criminal P.C. or for that matter S.457 of the Criminal P.C. will have no application whatsoever in view of certain provisions of the said NDPS Act, 1985.

6. The relevant provisions which provide for disposal and confiscation of the properties or the conveyance used for the purpose of committing any offence under the said Act are as follows :
"S.60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation -
(1)  xxxx xxxx xxxx
(2)  xxxx xxxx xxxx
(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or any article liable to confiscation under Sub-S. (1) or Sub-S. (2) sh