Sujit Chakraborty VsThe State of Tripura

Deepak Gupta, C.J.—By means of this petition, the petitioner has sought for quashing of the order of the learned Special Judge, North Tripura, Kamalpur whereby the prayer of the petitioner for release of the Tata Sumo belonging to him was rejected and the petitioner also prayed that the aforesaid Tata Sumo be released in his favour on such terms and conditions this Court deem fit and proper.

The allegation of the police is that on 12.05.2014 at about 0030 hours, the police stopped the vehicle in question at Bhagat Singh Chowmuhani. The driver fled away from the spot and cough syrup was being illegally carried in the vehicle. Thereafter, Kamalpur P.S. Case No. 54 of 2014 was registered in the Kamalpur Police Station u/s 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ''Act''). The allegation is that Eskuf cough syrup bottles which are a prohibited substance under the Act were being carried in this vehicle.

On behalf of the State, it is urged that the charge sheet has been filed in the case and that the vehicle has been seized under the aforesaid Act and therefore, this is a case of confiscation and the Tata Sumo cannot be released.

Reference may be made to Section 60 of the Act, which reads as follows:-

"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation. - (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.

(2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.

(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable to confiscation under subsection (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."

The procedure for making confiscation is laid down in Section 63, which reads 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 u/s 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 u/s 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 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 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."

A bare reading of Section 63 clearly shows that confiscation of conveyance and other articles in terms of Section 60 can be made regardless of the acquittal or conviction of the accused. Once the Court comes to certain findings in terms of Section 63 it can order confiscation. However, any order with regard to confiscation has to be passed after the trial is complete. At this stage, the Truck has not been confiscated, but is only seized as a conveyance used for the transportation of a substance in violation of the NDPS Act.

The question that arises is what should be done with the Tata Sumo? Should it be allowed to remain in the Police Station, where it will be subjected to the vagaries of weather? The Tata Sumo is a valuable commodity and I am clearly of the view that if it is left with the Police Station, it will turn to junk by the time the trial is completed. When we read Section 60 with Section 63 of the NDPS Act, it leaves no manner of doubt that the purpose of the Act shall be served if safeguards are laid down to ensure that the Tata Sumo is produced before the Court as and when required. The vehicle at the same time must be kept in safe custody so that if order of confiscation is passed and it is ordered to be sold it obtains the maximum sale price. In case, the vehicle is permitted to remain in the Police Station without any care it shall be subject to rain and Sun and its condition will deteriorate. Therefore, I am of the considered view that this Court must pass orders to ensure that the vehicle is properly maintained and kept in a proper condition and produced before the trial Court as and when required.

It is not disputed that the petitioner is the registered owner of the Tata Sumo. Therefore it is directed that the Tata Sumo bearing No. TR-01-AL-0408 be released in favour of the petitioner on his furnishing cash security of Rs. 50,000/- (Rupees Fifty thousand) and solvent security to the extent of Rs. 5,00,000/-(Rupees Five lakhs) with one surety of similar amount. The petitioner shall also furnish a bond that he shall maintain the Tata Sumo properly and that he will not part with the Tata Sumo or sell the same or create any encumbrance on the Tata Sumo till the criminal case is disposed of. The petitioner shall also file an undertaking to the effect that he shall produce the Tata Sumo before the trial Court as and when called upon to do so by the trial Court. The petitioner shall not in any manner transfer or dispose of the Tata Sumo to any person nor shall he make any change in the body, colour or design of the Tata Sumo. The petitioner shall also undertake not to change the registration number of the Tata Sumo and shall file an undertaking that no damage shall be caused to the Tata Sumo. The petitioner shall also undertake that the Tata Sumo shall not be used for any illegal or illicit purpose.

In case, there is any violation of any of the conditions mentioned hereinabove, the Tata Sumo can be seized again.

Before release of the Tata Sumo, the learned Court below through the police shall ensure that at least 5(five) photographs of the Tata Sumo from different angles depicting its colour, shape, size and condition are taken and placed on record. The expenses for such photographs shall be borne by the petitioner. On furnishing of the aforesaid bail bonds, undertaking and photographs, the Tata Sumo shall be released in favour of the petitioner till further orders to be passed by the learned trial Court.

With these observations, the Criminal Petition stands disposed of.