The prosecution has the burden of proving that property seized under the NDPS Act is involved in an offence under the Act.

Headnote:
NDPS ACT - RELEASE OF VEHICLE - OWNERSHIP - BURDEN OF PROOF - [Section 482 CrPC, Section 20(b)(ii)(A) and 22(c) NDPS Act]
Fact of the Case:

The petitioner's Royal Enfield motorcycle was seized by the police in connection with a NDPS case. The petitioner claimed that the motorcycle was stolen from him and that he was the rightful owner. The trial court refused to release the motorcycle to the petitioner.
Finding of the Court:

The High Court held that the petitioner had established a prima facie case that he was the rightful owner of the motorcycle. The court noted that the petitioner had produced the original RC book and insurance certificate for the motorcycle, and that the chassis and engine numbers matched the numbers on the motorcycle that was seized by the police. The court also noted that the petitioner had filed a complaint with the police about the theft of the motorcycle.
Issues: Whether the petitioner had established a prima facie case that he was the rightful owner of the motorcycle.
Ratio Decidendi: The court relied on the following principles in reaching its decision:* The burden of proof is on the prosecution to prove that the property seized under the NDPS Act is involved in an offence under the Act.* The prosecution failed to establish that the motorcycle was involved in an offence under the NDPS Act.* The petitioner produced sufficient evidence to establish that he was the rightful owner of the motorcycle.
Final Decision: The High Court set aside the trial court's order and directed the police to release the motorcycle to the petitioner.

ORDER

Dated this the 11th day of January, 2023 This is a petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred as ‘Cr.P.C’)

seeking the following prayers:

“a) allow the Petition and set aside the Annexure A1 order dated 28th day of June 2022 in Crl.M.P No:1493/2022 on the file of the Learned 2nd Additional Sessions Judge-I Thiruvananthapuram.

b) Necessary and effective directions may be given to the Respondents to release the said vehicle to the petitioner within a time frame as because the said vehicle is left on the roadside of the 3rd respondent's office.

c) Grant such other relief that this Hon'ble Court may deem fit and proper in this case for the return of the said vehicle to the petitioner.”

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

3. It is submitted by the learned counsel for the petitioner that, order in Crl.M.P. No. 1493/2022 dated 28.06.2022 passed by the learned Special Judge (Additional Sessions Judge-I), Thiruvananthapuram, is liable to be quashed since as per the impugned order, the learned Special Judge, refused to release the Royal Enfield motor cycle bearing registration no. KL-22-G-5908 having Chassis No.ME3U3K5C0FA666657 and Engine No.U3K5C0FA666657 which is under custody of the 3rd respondent, since the same was seized in Crime No. 119 of 2022 of Pallickal Police Station, registered alleging commission of offences punishable under Sections 20(b)(ii)(A) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'NDPS Act' for convenience).

4. Precisely on the subject matter, the specific allegation is that the vehicle originally belonged to the petitioner was stolen away from the petitioner's car porch by an unknown person, between the late hours of 05-05-2021 and the early hours of 06.05.2021. It is submitted further that, immediately after knowing about the theft of the motor bike, complaint was lodged before the Kazhakuttom Police Station and based on which Crime No.1227/2021 of Kazhakuttom Police Station alleging commission of offence punishable under Section 379 of IPC was registered. It is submitted that, in view of the above factual aspects, the vehicle belongs to the petitioner seized in Crime No.119/2022 of Pallickal Police Station is liable to be released, negativing the bar under the provisions of the NDPS Act.

5. The learned Public Prosecutor also conceded the fact that, though the vehicle was seized with a different number while registering the crime No.119/2022, later enquiry revealed that there was alteration in the engine number and the chassis number. When the same was verified, it was found that, the engine number of the Bike as U3K5C0FA666657 and Chassis No. as ME3U3K5C0FA666657, pertaining to motor bike bearing Registration No. KL-22-G- 5908 and accordingly, another Crime No.186/2022 alleging commission of offences punishable under Sections 465 and 471 of IPC, was registered against the accused in Crime No.119/2022 and the same also is under investigation. The learned Public Prosecutor submitted further that a request was made to make the Bike as an MO in the earlier theft case. 6. On perusal of the copy of RC Book produced by the petitioner, it could be gathered that, the chassis number and the engine number of the Royal Enfield motor cycle bearing registration number KL-22-G-5908 is the one which was seized in Crime No.119 of 2022 and therefore, the release as sought for by the petitioner should have been allowed by the Court, where the vehicle was produced.

7. Since the vehicle has been in custody and there is likelihood of destruction of the same, in the interest of justice, I am inclined to set aside Annexure A1 order and release the vehicle of the petitioner on the following conditions: i. The Station House Officer, Kazhakuttom Police Station is directed to prepare a Mahazar in relation to the said Motor Bike bearing registration number KL-22- G-5908 and produce the same

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