TMI Blog1989 (2) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... wner of the said taxi, and that he has a taxi-permit and a valid motor driving licence, and that the taxi is lying at the Customs House unattended and its machinery is getting rusted since last several months, and that no useful purpose would be served by keeping the abovementioned taxi in the custody of the Customs authorities. On this application, the learned Magistrate issued a notice to the Customs Authorities, and after hearing both the parties, the learned Magistrate passed the following order : Taxi to be returned to applicant on his executing bond of ₹ 90,000/- with one surety in the like amount. Taxi being a mechanically propelled vehicle is likely to be damaged if not in use and therefore it is expedient in the interest of justice to return the taxi to the registered owner (Applicant). Accused has given his no objection and under the N.D.P.S. Act court has power to pass order regarding disposal of vehicle. 3. It appears that Mr. Gupte, who appeared for the prosecution, brought to the notice of the Learned Magistrate various documents and material indicating how respondent 1 could not claim the taxi on the basis of ownership rights. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under S. 60 or S. 61 or S. 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 any 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 this claim : Provided further that if any such article or thing other than a narcotic drug, psychotropic 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. (3) Any person not convicted who claims any right to property which has been confiscated under this section may appeal to the Court of Session against the order of confiscation. On the basis of these provisions Mr. Gupte submitted that if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. Even though the officer who has seized this vehicle is not a police officer, by virtue of S. 53 he becomes one, and he has the necessary powers of an officer-in-charge of a police station. Mr. Gupte has relied upon S. 51 to say that the provisions of S. 451 and also S. 457(1) of the Criminal P.C. are not applicable, Section 51 of the NDPS Act, 1985 is as follows : Section 51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures. - The provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall apply, in so far as they and not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. 9. I am to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation which may have to be passed as provided under the Act. In fact, we are not concerned with a situation of this kind at all. Here is a vehicle, of which respondent 1 claims to be the owner, and according to him, he is not concerned with the offence, and he is seeking an order for the custody of the vehicle pending the disposal of the case, and he says that he would produce the same subject to terms and conditions imposed upon, at the time of the final hearing of the matter. Since there is no provision under the Act prohibiting interim custody, and if S. 451 or S. 457(1) of the Criminal P.C. is not inconsistent with the provisions of this Act, there is no reason why such an application cannot be considered by the Court. 10. The object of the Act is to see that the vehicle which is used for such an offence is not made available to the persons who have indulged in these activities. They shall not have the benefit of such a vehicle. By and large if an accused person is himself the owner of the vehicle and he uses such a vehicle for the purpose of conveying the drugs, then of course, it is possible for the prosecution to contend that it is against the interest of just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Section 52(2) as also S. 55 in terms refers to Magistrate before whom the persons arrested and articles seized shall be produced. Till the case is committed to the Court of Session, it is the Magistrate, who is in charge of such an article or vehicle, and it is for him to pass such orders as are appropriate under the law. In he present case, if the vehicle has not been brought before the learned Magistrate, perhaps, it could be said that S. 451 of the Criminal P.C. may not apply. But if one reads S. 55 of the NDPS Act, 1985, together with S. 457(1) Criminal P.C., it could be said that the Magistrate has jurisdiction to pass an order as he thinks fit in respect of custody and production of the property, pending the trial. 13. This takes me to the other question viz., that assuming the learned Magistrate had jurisdiction to pass an order under S. 451 or S. 457(1) Criminal P.C. whether the learned Magistrate could have passed an order in the facts and circumstances of this case, and if so, whether it could be interfered with in revision or otherwise. 14. As far as the present order is concerned, I am more than convinced that the learned Magistrate has decided the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
