Law Web: Whether Magistrate can release vehicle seized under NDPS Act?

By way of amendment, the scope of S.52A has undergone some

changes. S.52A(1) after the amendment reads as under:-

“(1) The Central Government may, having regard to the

hazardous nature, vulnerability to theft, substitution,

constraint of proper storage space or any other relevant

consideration, in respect of any narcotic drugs,

psychotropic substances, controlled substances or

conveyances, by notification in the Official Gazette,

specify such narcotic drugs, psychotropic substances,

controlled substances or conveyance or class of narcotic

drugs, class of psychotropic substances, class of

controlled substances or conveyances, which shall, as

soon as may be after their seizure, be disposed of by

such officer and in such manner as that Government

may, from time to time, determine after following the

procedure hereinafter specified.”

4. The main contention urged by the learned counsel for

petitioners is that the conveyances involved in transportation of

narcotic drugs or psychotropic substances may not belong to the

actual transporter, in which event, confiscation and destruction

by the competent officer without any enquiry in that regard may

affect the rights of the owner of such vehicle. In fact, S.63 of the

Act had provided for a procedure in making confiscations. S.63

gives the power to the Court to decide whether any article or

thing seized under the Act is liable to be confiscated in terms of

Sections 60, 61 or 62 of the Act. Before the amendment to

Section 52A, conveyance was not included as an item which

should be seized and disposed. The very fact that conveyance

had been incorporated in the amendment itself indicates that the

Government intended to provide a special procedure to deal with

such conveyance, while taking into account the fact that most of

the transportation are done in conveyances which itself is defined

u/s 2(viii) as meaning “a conveyance of any description

whatsoever including any aircraft, vehicle or vessel.” Therefore, if

any vehicle is involved in transportation of narcotic drug,

psychotropic substance or controlled substance, such vehicles

also could be seized and disposed of in terms of S.52A(1) of the

Act. S.63 was a special procedure available at the inception of the

Act and when the statute had been amended giving the power of

disposal of narcotic drugs, psychotropic substances, controlled

substances or conveyances to a special officer, he will have to act

in accordance with the procedure prescribed under the Act or the

Rules framed thereunder.

5. When a Special Act prescribes the procedure for

dealing in specified goods and the NDPS Act being a special

statute and latter in time, the provisions of the special statute

has to be followed by the Magistrate. In other words, the

Magistrate may not have jurisdiction to entertain a petition u/s

451 of Cr.P.C. in the light of the special provision made u/s 52A of

the NDPS Act. Apparently, in such instances,

going by the statutory provision under the Special Act, the power

of the Magistrate to consider a claim u/s 451 of Cr.P.C. stands

denuded.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Present:

MR.JUSTICE A.M.SHAFFIQUE

MR.JUSTICE N.ANIL KUMAR

Crl.Rev.Pet No.1440/2018

SHAJAHAN Vs INSPECTOR OF EXCISE

Dated this the 28th day of October 2019

These matters have come before us by way of a reference

as per order of the learned Single Judge dated 9/4/2019. It was

noticed that this Court in Hassainar Aseez B. v. State of

Kerala (2017 (2) KLT 741) held that a vehicle which was seized

under the Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as NDPS Act) could be released subject to

certain conditions if an application is filed u/s 451 of the Criminal

Procedure Code. It was observed that S.52A of the NDPS Act read

with the judgment of the Apex Court in Union of India v.

Mohanlal and Another [(2016) 3 SCC 379] indicates that the

Magistrate does not have jurisdiction to pass orders u/s 451

Cr.P.C. In the light of the aforesaid controversy, the matter has

been referred to this Court.

2. The issue has been well covered by the judgment of

the Apex Court in Mohanlal (supra). In that case, the Apex Court

had occasion to consider the manner in which narcotic drugs and

psychotropic substances are being seized, sampled and being

kept safe. It was noticed that several of the contraband articles

were being stored for a considerably long period which may

ultimately result in destruction and though there were provisions

for destruction of contraband articles, it remain so incurring

storage space, time, money and other difficulties. S.52A was

introduced into the statute book to get over the difficulties that

were being faced in disposal of seized narcotic drugs and

psychotropic substances. Necessarily, the procedure prescribed

u/s 52A requires to be followed when any narcotic drugs,

psychotropic substances, controlled substances or conveyances

are seized and forwarded to the officer in charge of the police

station or the officer empowered u/s 53 or the officer referred to

in sub-section (1), who shall prepare an inventory of such articles

and take such procedures as prescribed therein. The idea of

disposing the narcotic drugs and other substances including

conveyances is after getting it certified by the Magistrate and the

Magistrate's jurisdiction is confined to ensure compliance of

Section 52A(2) and (3). Sub-section (4) is a non obstante clause

which clarifies the situation and it reads as under:-

“4. Notwithstanding anything contained in the Indian

Evidence Act, 1872 (1 of 1872) or the Code of

Criminal Procedure, 1973 (2 of 1974), every court

trying an offence under this Act, shall treat the

inventory, the photographs of narcotic drugs or

psychotropic substances, controlled substances or

conveyances and any list of samples drawn under

sub-section (2) and certified by the Magistrate, as

primary evidence in respect of such offence”.

3. The inventory, the photographs of narcotic drugs,

psychotropic substances, controlled substances or conveyances

and any list of samples drawn under sub section (2) and certified

by the Magistrate, is treated as primary evidence in respect of

any offence. Viewed in that angle, the Magistrate may not have

any jurisdiction to deal with the substances or conveyances to

any of the articles mentioned therein as held in Hassainar

Azeez (supra). In Hassainar Azeez (supra), a learned Single

Judge of this Court who had referred the matter had observed

that the vehicles seized under the NDPS Act can be released to

the interim custody of the registered owner of the vehicle u/s 451

of the Criminal Procedure Code placing reliance on the Apex

Court judgment in Sunderbhai Ambalal Desai (2003 (2) KLT

1089). But the Apex Court judgment in Sunderbhai Ambalal

Desai (supra) was prior to introduction of S.52A, which

provision was introduced by way of substitution on 7/3/2014.

Prior to the amendment, the provision reads as under:-

“(1) The Central Government may, having regard to the

hazardous nature of any narcotic drugs or psychotropic

substances, their vulnerability to theft, substitution,

constraints of proper storage space or any other

relevant considerations, by notification published in the

Official Gazette, specify such narcotic drugs or

psychotropic substances or class of narcotic drugs or

class of psychotropic substances which shall, as soon as

may be after their seizure, be disposed of by such

officer and in such manner as that Government may,

from time to time, determine after following the

procedure hereinafter specified.”