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Waish Ahmed v/s The State of West Bengal


Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    C.R.R. No. 382 of 2018

    Decided On, 18 January 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MS. JUSTICE ASHA ARORA

    For the Petitioner: Pawan Kumar Gupta, Ayan Bhattacharya, Sofia Nesar, Santanu Seth, Advocates. For the Respondent: Arun Kumar Maity, Sanjoy Bardhan, Advocates.



Judgment Text

By the instant application petitioner has assailed the order dated 2/1/2018 passed by the learned Judge, Special Court under NDPS Act Howrah in T.R No. 6 of 2017 arising out of Nischinda P.S. case No. 9 of 2017 dated 23/4/2017 under section 21(c)/22(c)/23/29 of the NDPS Act whereby the petitioner's application for return of the seized vehicle (truck) bearing No. UP 32 HN 3425 was rejected.

The brief facts leading to the present application are as follows:

On 22/4/2017 S.I Sudipta Panigrahi of Detective Department, Howrah Police Commissionerate lodged a suo moto complaint stating that in course of raid at zero point NH2 Toll Free Road, near Bamundanga Math, P.S. Nischinda, Howrah, he along with force arrested three accused persons from whose possession 19,995 bottles of phensedyl cough linctus in a truck bearing No. UP 32 HN 3425 were seized. Preliminary charge-sheet was submitted against the aforesaid three accused persons namely, Gopal Sadhu, Sankar Debnath and Debu Kundu under section 21(c)/22(c)/23/29 of NDPS Act while the driver of the seized truck could not be traced. During further investigation, on 27/11/2017 Waish Ahmed, the petitioner herein went to the D.D. office and identified himself as the owner of the seized vehicle and produced documents in support of his ownership which were seized from his possession. He also disclosed the name and address of his driver who was driving the vehicle at the relevant time. In course of investigation it transpired that the petitioner is the owner of the transport company named PBH Kolkata Transport Carrier and he intentionally suppressed this fact from the police. Further investigation culminated in the submission of supplementary charge-sheet under section 21(c)/22(c)/23/29 of the NDPS Act against the absconding driver of the seized truck and the owner who is the petitioner herein.

On 11/8/2017 the petitioner herein filed an application before the learned Judge Special Court under NDPS Act Howrah for return of the seized truck bearing no. UP32 HN3425 as its registered owner. It is the contention of the petitioner that he had no knowledge about the user of the truck for carrying or transporting contraband articles. The learned Judge rejected the application for return of the seized truck on the ground that the Investigating Officer in his report has not stated anything with regard to the claim of the petitioner that as the owner of the truck he had no knowledge or connivance regarding transportation of the seized 19,995 bottles of phensedyl cough linctus in his truck and that the owner of the vehicle was vicariously liable for the act done by his agent. Further, in view of the provision of section 60(3) of the NDPS Act the vehicle is liable to confiscation. Aggrieved by the impugned order the petitioner has approached this Court.

Petitioner has contended in his application that he is running a transport business at Lucknow and is the owner of several trucks. He is the registered owner of the seized truck which was sent to a transport agency for supply of plywood from a company in Lucknow, Uttar Pradesh to a company in Kolkata. The aforesaid truck left Kanpur on 17/4/2017 but did not reach its destination in West Bengal on 19/4/2017. Petitioner came to know that the truck was seized in connection with the above mentioned case under the NDPS Act. According to the petitioner, his vehicle was misused by unknown persons during the transit.

Learned counsel for the petitioner submits that as the registered owner of the seized vehicle the petitioner should be given interim custody of the same during the pendency of the trial. Referring to section 60 and 63 of the NDPS Act it is argued that the seized vehicle carrying contraband articles is liable to confiscation on conclusion of the trial in accordance with the procedure prescribed under the Act. It is contended that the petitioner had no knowledge that the vehicle was carrying contraband articles. Supplementary charge-sheet was filed against the petitioner during the pendency of this application. Learned counsel submits that the anticipatory bail prayer of the petitioner was allowed by the High Court. It is further canvassed that the seized vehicle will be damaged and reduced to scrap material if kept indefinitely in the open at the police station till the conclusion of trial. So interim custody of the seized vehicle may be given to the petitioner under the provisions of section 451 or section 457 of the Code of Criminal Procedure. To buttress his argument learned counsel for the petitioner relied upon the decisions reported in 2002 (10) Supreme Court Cases 283 in the case of Sundarbhai Ambalal Desai versus State of Gujarat, 2006(2) CHN 198 in Tridip Mitra versus State of West Bengal, 2011(2) Mh L.J 903 in Anil Navnath Marathe versus State of Maharashtra and 2016(1) Cal Cri LR 142 in Ainul Haque versus State of West Bengal and another.

Opposing the application under consideration, learned counsel for the State countered that in view of section 35 of the NDPS Act read with section 54 of the Act there is a presumption that the petitioner who is the owner of the seized truck cum transporter had knowledge that the said vehicle was carrying contraband articles. It is argued that in course of further investigation it transpired that the petitioner was running transport business and there was deliberate suppression of the aforesaid fact by the petitioner against whom supplementary charge-sheet has been submitted u/s 21(c)/22(c)/23/29 of the NDPS Act.

There is no specific provision in the NDPS Act for return of the seized article, vehicle or conveyance during inquiry or trial of the offences under this Act. Section 60 sub-section (3) of the NDPS Act casts an obligation on the Court to confiscate the animal or conveyance used for carrying narcotic drug or psychotropic substance which reads as follows:

"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.--

(1)..........................................................................................

(2)..........................................................................................

(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance [or controlled substance], 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."

It will also be beneficial to refer to section 63 of the NDPS Act which is as follows:

"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, [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."

It is evident from the aforesaid provisions that the article or conveyance/vehicle seized under the NDPS Act is liable to confiscation on conclusion of trial in accordance with the procedure prescribed in section 63 of the Act unless the owner of the conveyance or vehicle proves that it was so used for carrying any narcotic drug or psychotropic substance or any article liable to confiscation under sub-section (1) or sub-section (2) of section 60 of the Act without his knowledge or connivance and that he had taken all reasonable precautions against such use of the seized vehicle. It is clear that there is no provision in the NDPS Act for grant of interim custody of the seized vehicle to its owner during the pendency of the trial. However, learned counsel for the State could not refer to any provision under the Act which specifically prohibits the grant of interim custody of the seized vehicle to its owner pending final disposal of the case. In Tridip Mitra versus State of West Bengal reported in 2006(2) CHN 198 the learned Single Judge of this Court held that during pendency of the trial the learned Judge of the Special Court under the NDPS Act has jurisdiction under section 451 and section 457 of the Code of Criminal Procedure to pass necessary order in accordance with law regarding prayer for release of theseized vehicle as an interim custody. The relevant paragraphs 12 and 16 of the aforesaid judgement read as follows:

"12. In B.S. Rawant vs. Shaikh Abdul Karim (supra), the Bombay High Court passed order relating to interim custody of property seized in NDPS Act and observed that operation of sections 451 and/or 457(1) of the Code is not excluded by any provision of the NDPS Act. The Bombay High Court held that, the provisions of section 41/42/43/51/53/55/60/63 of the NDPS Act do not exclude the operation of section 451 or section 457(1) of the Code. The High Court observed that, "Under sections 60 and 63such an article or vehicle used for the purpose of commission of an offence under this Act, is liable for confiscation. In other words, the article or the vehicle must be available at the time of trial or at the end of the trial for the purpose of confiscation. It does not mean that the vehicle shall always remain at the concerned police station pending the trial...........Under section 457(1) of the Code of Criminal Procedure the learned Magistrate has a discretion to pass an order granting interim custody or to decline. But, in either case, the discretion has to be exercised judicially, and not in a cavalier fashion."

Paragraph 16 of the Judgement is quoted herein below:

"16. The decision of the Supreme Court in Sunderbhai Ambalal Desai and decision of the Bombay High Court mentioned above clearly reveal that, provisions of sections 41, 42, 43, 51, 53, 55, 60 and 63 of the NDPS Act do not exclude operation of sections 451 and 457(1) of the Code.

The decision of this Court in Asis Bose vs. State of West Bengal (supra) and Sri Jiban Aich vs. State of West Bengal (supra) concerning Forest Act reveal that vehicle used in transporting forest produce should not be released normally but can be released imposing certain conditions which will have deterrent effect on the owner and putting different conditions including condition that the said vehicle henceforth shall not be used in indulging similar type of offence in future. Besides that, the general provision laid down by the Supreme Court in Sunderbhai Ambalal Desai (supra) cannot be ignored as it was observed that the vehicles should not be kept in Court compound or thana compound for indefinite period till the conclusion of trial to allow the vehicle to lose its value open to sky, sun and rain. The Supreme Court and this Court clearly laid down the consideration of the Court is production of the vehicle at the time of trial and also during confiscation proceeding if any confiscation proceeding is started at all and for securing that the said vehicle is not used in similar type of offence in future. If Government fiscal policy of fetching money by auction of vehicles after confiscation proceeding is considered then also it is desirable that the vehicles should be in good condition. A vehicle if kept at thana or Court compound open to sky for indefinite period would become scrap material within a year or two for want of maintenance. A scrap material cannot fetch such money which a good conditioned vehicle would fetch."

It is obvious that the considerations would be the production of the seized vehicle during the trial and also during the confiscation proceeding if any such proceeding is initiated and for securing that the vehicle in question is

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not used for commission of any such offence in future. For the reasons aforestated and in view of the decisions hereinabove referred, I am of the opinion that the interim custody of the seized truck no. UP32 HN 3425 may be given to its registered owner/petitioner on proper verification and identification subject to the following conditions: (1) The petitioner shall furnish bank guarantee of rupees twenty five lacs before the trial court. (2) The petitioner shall produce the seized vehicle before the trial Court as and when called for during the trial and also during the confiscation proceeding if any such proceeding is initiated. (3) To facilitate production of the seized vehicle before the trial Court as and when called for, the seized vehicle shall not leave the district of Howrah till the conclusion of trial and the confiscation proceeding, if any such proceeding is initiated, without prior permission of the trial court. (4) The petitioner shall not alienate the seized vehicle or change its nature and character during the pendency of the case. (5) The seized vehicle shall not be used for the commission of any offence. The impugned order is accordingly set aside and the application being CRR 382 of 2018 is thus disposed of. Urgent photostat certified copy of this order, if applied for, be given to the applicant upon compliance of requisite formalities.
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