Allowed

Mohammad Mansoor Abdul Rahiman v. the Deputy Superintendent of Police

Kerala HC8 Dec 2016Crl.Rev.Pet/1517/2016

Case brief

AI extract

What is this about?

This order grants interim release of a car to its owner working abroad, where drugs were seized from the vehicle driven by an unauthorized user. The court imposed conditions, including a bank guarantee, subject to future confiscation proceedings under the NDPS Act.

What did the court decide?

Vehicle released to petitioner subject to bank guarantee, stringent conditions, and ongoing confiscation proceedings.

Mohammad Mansoor Abdul Rahiman Vs the Deputy Superintendent… — Narcotics (NDPS) | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938

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Crl.Rev.Pet.No. 1517 of 2016 ()

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AGAINST THE ORDER IN CRMP 4180/2016 of LEARNED SESSIONS COURT, KASARAGOD DATED 25-10-2016 CRIME NO. 71/2016 OF MANJESWAR POLICE STATION , KASARGOD

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REVISION PETITIONER/PETITIONER:

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MOHAMMAD MANSOOR ABDUL RAHIMAN

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AGED 24 YEARS, S/O.ABDUL RAHIMAN, MANSOOR MANZIL, KOPRA BAZAR, MOGRAL PO, KASARAGOD TALUK AND DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ABDUL MUHAD, S/O.ABDUL RAHIMAN, MANSOOR MANZIL, KOPRA BAZAR, MOGRAL PO, KASARAGOD TALUK AND DISTRICT.

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BY ADVS.SRI.T.MADHU

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SMT.C.R.SARADAMANI

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RESPONDENTS/STATE:

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1. THE DEPUTY SUPERINTENDENT OF POLICE NARCOTICS CELL, KASARAGOD, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031

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2. THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, MANJESHWAR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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R BY PUBLIC PROSECUTOR, SRI.AMJAD ALI

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RAJA VIJAYARAGHAVAN, V., J.

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Crl.R.P. No.1517 of 2016

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Dated this the 8^th day of December, 2016

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O R D E R

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~~~~~~~~

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1.The petitioner is the owner of a Renault Duster car bearing

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Reg.No.KL-14-R-2941. The petitioner is working abroad and in the said circumstances the possession of the vehicle was handed over to a person by name Falahudheen Mohammed on the strength of an agreement, which is dated 8.9.2015.

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2.While so, the aforesaid vehicle was intercepted by the 1^st respondent on 15.2.2016 and on inspection 80 kgs of Ganja was found concealed in the vehicle. The contraband article was seized and consequently Crime No.71 of 2016 of the Manjeshwar Police Station was registered under Section 20(b)(ii)(B) of the NDPS Act.

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3.While the matter was pending as aforesaid, the petitioner preferred an application through his power of attorney

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Crl.R.P.No.1517/2016 -2-

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holder seeking interim release of the vehicle. The said application was considered and his prayer was rejected. The same is under challenge.

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4.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

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5.Learned counsel, at the outset, submitted that though the vehicle is liable for confiscation under Section 63 of the NDPS Act, the same can be done only at the conclusion of the trial. It is submitted that since the date of seizure on 15.2.2016, the vehicle is lying exposed to the vagaries of nature and referring to the decision of the Apex Court in Sunderbai Ambalal Desai v. State of Gujarat [AIR 2003 SC 638], it is prayed that the vehicle be ordered to be released.

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6.Learned Public Prosecutor on instructions submits that the learned Sessions Judge while rejecting the application took note of all the contentions and no interference is warranted.

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Crl.R.P.No.1517/2016 -3-

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7.I have considered the rival submissions and have gone through the materials on record. It is undisputed that a large quantity of Ganja was seized from the vehicle. However, the prosecution has no case that the petitioner had a role to play in the commission of the offence. According to the petitioner, the car was rented out to a person by name Falahudheen Mohammed after accepting a sum of Rs.3.5 lakhs. On going through the impugned order, it is evident that the prayer was rejected mainly on the ground that the investigation is in progress and the vehicle is liable to be confiscation.

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8.It will be apposite to take a brief look at the relevant provisions of the NDPS Act, 1985 pertaining to confiscation.

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9.Sub-section (3) of S. 60 provides as under : -

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"Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable

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Crl.R.P.No.1517/2016 -4-

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to confiscation under sub-section (1) or subsection (2) shall be liable to confiscations, 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."

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This would mean that even if the owner of the conveyance is not prosecuted for offence punishable under N.D.P.S. Act, to escape from the liability of confiscation of the conveyance, the onus is placed upon him to make out the case that the vehicle was used without his knowledge or connivance and knowledge or connivance of the agent or the person in - charge of the conveyance. So, merely because the owner is not prosecuted for any offence punishable under the N.D.P.S. Act, the owner of the conveyance cannot claim discharge from liability of confiscation. A complete procedure is prescribed under S.60, S.61, S.62 and S.63 of the N.D.P.S. Act for confiscation of the contraband articles used for the

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Crl.R.P.No.1517/2016 -5-

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purposes of dealing in contraband and the conveyance.

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10.Sub-section (1) of S.63 reads as follows:

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"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 S.60 or S.61 or S.62 and, if it decides that the article is so liable, it may order confiscation accordingly."

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In other words, irrespective of the decision in the trial, the Court has power to pass an order regarding confiscation.

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In Sunderbhai Ambalal Desai ( supra) , it was held by the Apex Court that, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. Sweeping directions were issued in General Insurance Council V State of A. P 2010 ( 6) SCC 768 as well .

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12.It has also to be borne in mind that the object of the Act

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Crl.R.P.No.1517/2016 -6-

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is to see that the vehicle which was used for such a grave offence is not made available to the persons who have indulged in activities involving Narcotic drugs. The said persons cannot have the benefit of using such a vehicle. By and large, if the accused himself is the owner of the vehicle and if he uses such a vehicle for transporting or conveying the goods, then of course the prosecution can very well contend that it is in the interest of justice that such a vehicle be given to the accused himself pending trial. But in a case wherein, the registered owner of the vehicle who is abroad had entrusted the vehicle on rent and prima facie it is revealed that the said vehicle was used by the said person without the knowledge or concurrence of the registered owner, it would work out injustice if the registered owner is asked to wait till the trial is complete for getting the return of the vehicle from the court. In such cases, subject to stringent conditions to ensure that the vehicle is made available for the

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Crl.R.P.No.1517/2016 -7-

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purpose of confiscation, the court has ample powers to grant interim custody.

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13.In the case on hand, more than 10 months have elapsed and I find no reason to refuse the prayer of the petitioner for interim custody. The vehicle can be released to the petitioner subject to stringent conditions .The release, shall be subject to confiscation proceedings initiated at the appropriate stage. The petitioner can be directed to furnish bank guarantee for the value of the vehicle as assessed by the competent officer of the motor vehicles department. The learned Sessions Judge will be at liberty to impose additional conditions to the satisfaction of the Court below .

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The petition is disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN, V. JUDGE

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Ps/8/12/16

Mohammad Mansoor Abdul Rahiman v. the Deputy Superintendent of Police

Case brief

What is this about?

What did the court decide?

Mohammad Mansoor Abdul Rahiman v. the Deputy Superintendent of Police

Case brief

What is this about?

What did the court decide?

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