Allowed

Mahaboobsha S/O Immamsab v. State of Karnataka

Karnataka HC8 Nov 2019CRL.A/2772/2011

Case brief

AI extract

What is this about?

This appeal challenged the confiscation of an appellant's vehicle used for transporting drugs under the NDPS Act. The High Court held that the confiscation order was procedurally illegal as it was passed without a mandatory hearing to the owner, thereby violating Section 63 of the Act. The appeal was allowed, and the order was remanded to the trial court to provide an opportunity for the owner to

What did the court decide?

The impugned order of confiscation of the vehicle is set aside; the matter is remitted to afford the appellant an opportunity to prove his claim under Section 63 of the NDPS Act.

Mahaboobsha S/O Immamsab Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 8^{T H} NOVEMBER 2019

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BEFORE

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THE HON’BLE MR. JUSTICE P.G.M.PATIL

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CRIMINAL APPEAL NO.2772/2011

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BETWEEN:

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MAHABOOBASHA S/O IMMAM SAB AGE: 28 YEARS, OCC: OWNER OF TOURIST CAR, R/O H. NO. 9/107, WARD NO. 5, HOSPET, DIST. BALLARI

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... APPELLANT

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(BY SRI J S SHETTY, ADVOCATE.)

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AND:

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STATE OF KARNATAKA THROUGH GOKUL ROAD POLICE STATION, HUBBALLI, BY ITS PUBLIC PROSECUTOR.

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... RESPONDENT

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(BY SRI V.S.KALASURMATH, HCGP.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 454(1) OF CR.P.C., PRAYING THAT THE ORDER PASSED BY THE PRL. DIST. & SESSIONS JUDGE (SPECIAL JUDGE, DHARWAD) IN SPL. (N.D.P.S.) C.C.NO.2/2010 DATED 14.07.2011, BE SET ASIDE IN SO FAR AS IT RELATES TO CONFISCATION OF THE APPELLANT VEHICLE REGISTRATION NO.KA-35/ A-1718, BELONGING TO THE APPELLANT, IS CONCERNED, BY ALLOWING THIS APPEAL, WITH COST THROUGHOUT, ETC.,.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant being aggrieved by the order

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dated 14.7.2011, passed in Special (NDPS) C.C. No.2/2010, on the file of Principal District and Sessions Judge (Special Judge), Dharwad, confiscating his car bearing registration No.KA-35/A-1718, has filed this appeal.

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The brief facts leading to filing of this appeal are that Gokul Road police registered a case in Crime No.42/2010, for the offences punishable under section 8, 17 and 18 of NDPS Act (hereinafter referred to as ‘the Act’ for brevity), wherein it was alleged that on 26.3.2010, at about 12.40 p.m. the police inspector received credible information and thereafter he along with Gazetted Officer, his staff and panchas went to by-pass Bengaluru Belagavi road near Tarihal bridge, where they found a TATA Indica car

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bearing registration No.KA-35/A-1718 passing on the road, they stopped the said vehicle, two inmates ran away from the car. The police officer caught hold three persons and on inspection he found 2 kgs of opium in the said Indica car. The police officer seized the said vehicle along with the opium, apprehended three accused persons, registered the case and after completing the investigation filed the charge sheet against accused Nos.1 to 5 before the Special Court.

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The appellant herein is the owner of the vehicle bearing registration No.KA-35/A-1718, which was seized in the said case. It is seen that the appellant filed an application before the trial Court for the interim custody of the said vehicle, which was allowed and the vehicle was given to his interim custody pending disposal of the case. It is further stated that after the full fledged trial, the trial Court passed the impugned judgment on

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13.7.2011 whereby accused Nos.1 to 3 were convicted for the alleged offences under section 17 and 18 of the Act and consequently order of sentence was also passed on 14.7.2011. On the same day trial Court passed an order for confiscation of M.O.7 namely the car bearing registration No.KA-35/A-1718 acting under section 60 of the Act. Further the concerned police were directed to seize the said vehicle and carryout the confiscation order. The appellant being aggrieved by the impugned order, has filed the present appeal.

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Heard the learned counsel for the appellant and the leaned HCGP. Learned counsel for the appellant submitted that the order of confiscation is in violation of the procedure provided under section 63 of the Act. Before passing the order of confiscation, the trial Court ought to have given notice to him and ought to

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have held enquiry as provided under section 63 of the Act and that the trial Court without giving any such opportunity has directly confiscated his vehicle to the State and as such the impugned order is illegal and in violation of the provisions of section 63 of the Act.

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Per contra the learned HCGP supports the impugned order and submits that the appellant ought to have approached the trial Court and made a claim in respect of his claim.

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Admittedly the appellant was not

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arraigned as one of the accused, in the Special (NDPS) C.C. No.2/2010. However it is alleged that the vehicle belonging to the appellant was used for transportation of opium and the driver of the said vehicle was arraigned as one of the accused. It is not in dispute that the said vehicle was given

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to the interim custody of the appellant during the pendency of the case before the trial Court. It is

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also seen from the impugned order that the learned Sessions Judge without giving any opportunity to the appellant/owner of the vehicle has proceeded to pass the order confiscating the said vehicle under section 60 of the Act. As rightly submitted by the learned counsel for the appellant the impugned order was passed without giving an opportunity to prove his claim in respect of the vehicle. First proviso to Section 63 of the Act, reads as follows :

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“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.”

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Therefore, it was mandatory on the part of the trial Court to issue notice to the appellantowner of the vehicle and giving him an opportunity to prove his claim as required under

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Section 60(3) of the Act that his vehicle was so used without his knowledge. Therefore, it is made out that the impugned order suffers from procedural illegality and is liable to be set aside.

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Consequently, the order dated 14.07.2011 so far as it relates to confiscating M.O.7 Car bearing registration No.KA-35/A-1718 is hereby set aside.

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The matter is remitted to the trial Court with a direction to afford an opportunity to the appellant to produce his evidence in support of his claim in respect of the said vehicle and then pass an order under Section 60 of the Act in accordance with law. Accordingly, the appeal is allowed.

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Sd/JUDGE

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Mrk/CKK/-

Mahaboobsha S/O Immamsab v. State of Karnataka

Case brief

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Mahaboobsha S/O Immamsab v. State of Karnataka

Case brief

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