The vehicle in which the contraband is alleged to have been found carried, can be confiscated by the Trial Court only on conclusion of the trial, when the accused is convicted or acquitted or discharged. If the view is of confiscation, then an opportunity of hearing has to be granted before such order is passed. There can be no confiscation, if the owner is able to prove that the vehicle was used without the owner’s knowledge or connivance and that he had taken all reasonable precautions against such use of the vehicle by the accused persons.
There can be four scenarios in which contraband is seized from a vehicle:
The first of which, the owner itself being in possession of the vehicle and the drugs;
then, the owner’s driver or cleaner, thus his agents being in possession;
third, if the vehicle had been stolen and;
last, when a third party in the vehicle is found in possession.
In the first two scenarios, the owner of the vehicle and/or his agent would necessarily be arrayed as an accused and in the third and fourth scenario, the owner of the vehicle and his agent would not be arrayed as an accused. It was also held that, in the first two scenarios,it may not be proper for the Court to release the vehicle on interim custody, while in the last two scenarios, it could be done. The above applied only to interim custody and not to the final release of the vehicle.
Admittedly, the confiscation proceedings under the NDPS Act and the criminal proceedings initiated are distinct proceedings. The result in one, not regulating the other. An order of acquittal does not necessarily mean that the vehicle too has to be released, since the standard of proof in the two proceedings are quite distinct and different; in confiscation, preponderance of probabilities and in the criminal proceedings, proof beyond reasonable doubt.
Sub-section (1) of Section 63 provides that 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 that if it decides that the article is so liable, order of confiscation may be passed. Section 60 makes liable, inter alia the conveyance; in which the offensive substance is carried, to confiscation. Sub-section (3) provides an exception insofar as the owner proving the use; without his knowledge and connivance and he/she having made reasonable precautions against such use. In fact, the statute by Section 63(1), specifically provides for confiscation by the Magistrate and not by the DDC. The NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022, which prescribes the manner in which the seized contraband is to be classified, weighed and stored. It also prescribes the manner in which sampling has to be done in the presence of a Magistrate and speaks of disposal too. Rule 16 specifically reads so:
“16. Items that can be disposed of. – Having regard to the hazardous nature, vulnerability to theft, substitution and constraints of proper storage space, all narcotic drugs, psychotropic substances, controlled substances and conveyances, as soon as may be after their seizure, shall be disposed of in the manner determined under Section 52A of the Act.”
A conveyance also can be disposed of under the Rules of 2022, but the power to confiscate being with the Court, it would not be proper for the DDC to independently proceed against the vehicle and dispose of that by sale or otherwise in auction, pending the criminal proceedings, without proper orders from the Court. As has been held in Biswajit Dey v. State of Assam, there is no specific bar under the NDPS Act that the Court cannot invoke the general power under Sections 451 and 457 of the CrPC for return of the seized vehicle pending final decision of the criminal case. Hence to preserve the statutory power, as conferred by Section 63(1) on the Court, trying the offence under the NDPS Act and to harmonize the Rules with the statute, it has to be held that the rules can be made applicable only with the permission of the Court.
It cannot be forgotten that the vehicle kept in the custody of the Police or the Court, during the pendency of the trial, may deteriorate and become unusable in the long run. It is hence the finding of this Court in Biswajit Dey v. State of Assam that the provisions of Sections 451 and 457 of the CrPC (or the analogous provisions of the BNSS) can be invoked even in NDPS cases.
However, if none appears to seek custody of the vehicle, then to avoid wastage of a valuable asset, the I.O may move the Court, if the owner does not approach the Court for interim custody, to refer it for disposal before the DDC. In that circumstance necessarily the Court has to issue notice to the owner of the vehicle and afford an opportunity of hearing before such reference is made. Even if the reference is made after giving an opportunity for hearing, the DDC also has to hear the owner before the asset, in the form of a vehicle, is sold in public auction. On such sale being carried out, the amount received shall be deposited before the Jurisdictional Court, since the procedure delineated for disposal does not include confiscation. Statutorily the power of confiscation is on the Court, trying the offence.
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