IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.557/2019 BETWEEN:
TAHIR AHMED SHAH, S/O AKRAM PASHA, AGED ABOUT 23 YEARS, R/AT NO.531/10, 14TH A CROSS, A SECTOR, YELAHANKA NEW TOWN, BANGALORE – 560 064.
(BY SMT.U.NAGAMANI, ADVOCATE FOR SRI.RAJASHEKARA R.V., ADVOCATE) AND:
THE STATE OF KARNATAKA, BY ITS STATION HOUSE OFFICER, D.J.HALLI POLICE, BANGALORE – 560 045. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE – 560 001.
(BY SRI.M.DIWAKAR MADDUR, HCGP) ...PETITIONER …RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C. PRAYING TO 1. SET ASIDE THE ORDER DATED 18.03.2019 PASSED BY THE LEARNED XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPL.JUDGE FOR NDPS CASES AT BENGALURU IN CR.NO.279/2018 AND ETC., THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER I have heard the learned counsel for the petitioner – accused No.4 and learned Government Pleader for the respondent – state.
2. Accused No.4 is before this Court challenging the order dated 18.03.2019, passed by the 33rd Additional City Civil and Sessions Judge and Special Judge for NDPS, Bengaluru, in crime No.279/2018 of D.J.Halli Police Station, whereunder, the application filed under Sections 451 and 457 of Cr.P.C. seeking release of one plus black mobile and Vespa bike bearing No.KA-50-Y-4080 was rejected.
3. The factual matrix of the case are that, on 06.11.2018, at about 2.30 p.m., one P.S.I. of the concerned police station received credible information that four unknown persons are intending to sell ganja.
Immediately along with staff and panch witnesses after taking the permission from senior officers went to KHB main road near IIBS College and they went at about 2.45 p.m., to the spot. At the spot, they noticed that four persons were standing and went away thereafter. The police inspector sent the staff to get information about the NDPS material and called the complainant at about 3.15 p.m. They apprehended the accused persons and they confirmed that they are selling ganja. When the investigating officer asked them whether they can be searched before the Gazeted officer or the Magistrate, they told that they can be searched before any Gazeted officer. Then the complainant produced the accused persons before the Gazeted Officer for search and after search was conducted at 3.30 p.m., they found 28 small plastic covers with flower, stem, leaves and seeds along with ganja from Arithrio Banarji and the same was taken into small bags for the purpose of test. They also seized Rs.1,000/- and one Samsung S8 mobile. They also came to know that he is having a motorbike bearing registration No.KA-04-JF- 1798 and the same was seized along with one Sony mobile from accused No.2. They also found 10 ml. weed oil bottle, one Vespa bike bearing registration No.KA-50 Y 4080, cash of Rs.500/- and one black colour one plus mobile phone. The same was seized by drawing a mahazaar. Subsequently, accused No.4 has filed an application seeking release of the said vehicle and mobile for interim custody. The said application came to be dismissed.
4. It is the contention of the learned counsel for the petitioner – accused No.4 that the order of the trial Court is not sustainable in law. The said mobile phone and the motorbike have not been used for the purpose of commission of the offence and as such, the said vehicle is not liable to be confiscated. It is not an incriminating material to prove the case of the prosecution. It is his further submission that the said mobile phone and motorbike is very much necessary for day to day work and exclusively belongs to the petitioner - accused No.4 and there is no rivalry claim by anybody to claim them. It is her further submission that if the said vehicle is kept in the custody of the police station, it may get rusted, useless and worthless. It may also lose its value. The trial Court without application of mind has come to the wrong conclusion and has dismissed the application. It is her further submission that the petitioner is ready to abide by the conditions imposed by this Court and offer sureties. Hence, she prayed for allowing the petition.
5. Per contra, learned Government Pleader vehemently argued and submitted that the said mobile and the motor bike are used for the purpose of commission of the offence and the same is required for the purpose of interrogation and identification, which are very much necessary. It is his further submission that the provisions of the Code of Criminal Procedure, 1973, is not made applicable since the said vehicle and mobile has been seized under the Narcotic Drugs and Psychotropic Substances Act, 1985 (referred to as ‘the Act’). The said vehicle and mobile are liable to be confiscated under Sections 60 to 63 of NDPS Act. It is his further submission that mobile and vehicle are used for the purpose of commission of the offence and hence, the trial Court taking into consideration the said aspect has rightly dismissed the application.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. I have gone through the provisions of the Act. It is true that Sections 60 to 63 of the Act provides for confiscation and any conveyance used for carrying any psychotropic substance and procedure of such confiscation by the authorized officer. For the purpose of brevity, I quote the relevant Sections 60 to 63 of the NDPS Act, which read thus:
“60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.— (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.
(2) Any narcotic drug or psychotropic substance 2 [or controlled substances] lawfully produced, imported inter-State, exported inter- State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance 2 [or controlled substances] which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any narcotic drug or psychotropic substance 2 [or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.
(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 2 [or controlled substances], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in- charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.
61. Confiscation of goods used for concealing illicit drugs or substances.—Any goods used for concealing any 3 [narcotic drug, psychotropic substance or controlled substance] which is liable to confiscation under this Act shall also be liable to confiscation. Explanation.—In this section “goods” does not include conveyance as a means of transport.
62. Confiscation of sale proceeds of illicit drugs or substances.—Where any 4 [narcotic drug, psychotropic substance or controlled substance] is sold by a person having knowledge or reason to believe that the drug or substance is liable to confiscation under this Act, the sale proceeds thereof shall also be liable to confiscation.
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 of 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 5 [controlled substance], the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.”
On close reading of the said sections, no doubt the Act has provided for confiscation only if the said article/s has been used for the purpose of carrying the contraband articles.
8. I have gone through the entire Act and no where in the Act, provides that the power of the Court has been curtailed and not to exercise the provisions of Sections 451 and 457 of the Cr.P.C. The provisions of Section 451 of the Code of Criminal Procedure comes into play when any property is produced before the Court or that if it is under trial. The Court may make such order as it thinks fit for the purpose of interim custody pending conclusion of the enquiry or the trial. Even the provisions of Section 452 of Cr.P.C. makes it clear that for the purpose of disposal of the property after the conclusion of the trial. When a seizure has been done by a police, during the course of investigation then, the said provision is made applicable. First and foremost, aspect which the Court has to see while exercising the power is that when the material has been seized, which are used for the commission of the offence, in any manner if they are not incriminating material, the Court can exercise the power under Sections 451 and 457 of Cr.P.C. for release of the said articles for interim custody.
9. In the case of Sunderbhai Ambalal Desai Vs.
State Of Gujarat reported in 2002 Part 10 SCC 283, at para No.7 it is held as under:
“7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
10. In the absence of bar by the provisions of the Act, if any vehicle is seized and it was kept in the police custody or produced before the Court, under such circumstances, the Court can exercise its power and release the vehicle by imposing some conditions. When there is no material to show that the said vehicle and the mobile has been used for the purpose of commission of offence, then under such circumstances, the Court should release the said articles in favour of the petitioner - accused.
11. In view of the aforesaid discussions held by this Court, the petition is allowed and the impugned order is set aside and the trial Court is directed to release the motor bike bearing registration No.KA-50-Y-4080 and also one plus black mobile to petitioner-accused No.4 on proper identification and acknowledgment with following conditions:
1) Petitioner-accused No.4 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs) with two solvent sureties for the likesum to the satisfaction of the trial Court.
2) The trial Court is also directed to verify the records to know about the ownership of the vehicle and the mobile.
3) He shall not change the colour of the vehicle or alter in any manner till the disposal of the case.
4) He shall not alienate or create any title over the said articles till the disposal of the case.
5) He shall produce the photographs of the said vehicle and the mobile and also file an affidavit to the effect that in the event, if the said vehicle and the mobile has been produced and the same if get marked, he shall not have any objection to mark them.
6) He shall file an affidavit to the effect that he is going to produce the said properties as and when they are required for the purpose of the case.
Sd/- JUDGE nvj/ag