The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.480 of 2015 Badri Narayan Mishra …. Appellant Mr. S. Panda, Advocate -versus- State of Odisha …. Respondent Mr. Rajesh Tripathy, Addl. Standing Counsel CORAM: JUSTICE S.K. SAHOO Order No. ORDER 11.03.2024 06. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). Heard learned counsel for the appellant and learned counsel for the respondent. This Criminal Appeal has been filed under section 454 of Cr.P.C. challenging the observation made in paragraph-26 of the judgment and order dated 20.08.2015 passed by the
Legal Reasoning
learned First Additional Sessions Judge -cum- Special Judge under N.D.P.S. Act, Khurda in T.R. Case No.34/14 of 2011. In paragraphs-25 & 26, it is held as follows :- “25. Heard the convict on the question of sentence. The convict kept himself mum. Considering the nature of the offences U/S.20(b)(ii)(C) of N.D.P.S. Act and U/S.47(a) Bihar & Orissa Excise Act together // 2 // with fact that the convict is a first and young offender, I am of the opinion that the minimum mandatory sentence provided for the said offences need to be inflicted to him. Accordingly, the convict is sentenced to undergo R.I. for a period of ten years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh), in default, to suffer R.I. for a further period of one year for the offence U/S.20(b)(ii)(C) of N.D.P.S. Act and to undergo R.I. for a period of 3 years and to pay a fine of Rs.20,000/- (rupees Twenty thousand), in default, to suffer R.I. for a further period of three months for the offence U/S.47(a) Bihar & Orissa Excise Act. Both the substantive sentences are to run concurrently. The period of detention undergone as U.T.P. by the convict be set off. 26. The seized bulk quantity of Bhang vide M.O.II, seized bulk quantities of Ganja vide M.Os.III to XIV, seized brass seal of P.W.13 along with envelope vide M.O.XV, one sealed packet vide M.O.XVI containing broken seals, 13 sealed packets marked A-2 to M-2 vide M.O.XVII to XXIX containing duplicate samples of Bhang and Ganja be destroyed, Page 2 of 9 // 3 // the seized Bolero vehicle bearing Regn. No.OR-02-AZ-9988 be confiscated to the State, the zimanama in respect of the seized weighing instrument with its apparatus which are in zima of Kanhu Parimanik (P.W.12) be cancelled and the zimanama in respect of seized documents of the Bolero vehicle bearing Regn. No.OR-02-AZ-9988 such as R.C.Book, Smart Card R.C., permit and Insurance Certificate which are in zima of owner of the vehicle Badri Narayan Mishra be cancelled and the zimanama in respect of the Receipt Register of S.R. Section, S.P. Office, Khurda which is in zima of Puspanjali Sahoo, Steno of S.P. office be cancelled after expiry of the appeal period in case of no appeal and in case of any appeal, the same
Decision
shall be disposed of as per the orders of the Appellate Court. The video C.D. kept inside one envelope vide M.O.I and the seized Command Certificates be kept with the case record.” (Emphasis supplied) Learned counsel for the appellant submits that the appellant was not an accused in the said case. One Lalit Kumar Jagadeb faced trial under sections 20(b)(ii)(C) of the N.D.P.S. Act and 47 (a) of Bihar & Page 3 of 9 // 4 // Orissa Excise Act and he was found guilty of the offences charged and accordingly sentenced to substantive imprisonment so also sentence of fine Learned counsel for the appellant further submits that the learned trial Court while convicting the accused has held that the seized Bolero vehicle bearing Registration No.OR-02-AZ-9988 be confiscated to the State and the zimanama in respect of the seized documents of the Bolero vehicle, such as R.C.Book, Smart Card R.C., Permit and Insurance Certificate, which were in zima of the appellant, who was the owner of the vehicle be cancelled. Learned counsel for the appellant drew the attention of this Court to the provision under sections 60 & 63 of the N.D.P.S. Act, which are quoted herein below :- “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 Page 4 of 9 // 5 // 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 sub-section (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. 63. (1) In the trial of offences under this Act, whether the accused is convicted or acquitted Page 5 of 9 // 6 // 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, 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 under section 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 an 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 1[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 Page 6 of 9 // 7 // shall, as nearly as may be practicable, apply to the net proceeds of the sale.” (Emphasis supplied) Combined reading of these two sections indicates that the owner of the offending vehicle has got a valuable right in opposing the confiscation and if he satisfies the Court that the vehicle was used without his knowledge or connivance and that he had taken all reasonable precautions against such use, even though the vehicle might have been used for carrying contraband article, the same may not be a ground for confiscation to the State. Similarly whether the accused is convicted or acquitted or discharged in the trial of the offence under the N.D.P.S. Act, the Court has to decide whether the vehicle is liable for confiscation or not. It is clear from the proviso to sub-section (2) of section 63 of the N.D.P.S. Act that the order of confiscation of a vehicle cannot be made without hearing the person, who might claim any right thereto and the evidence, if any, which he produced in respect of his claim. From the impugned judgment and operative part in paragraph-26, it appears that no opportunity of hearing has been provided to the appellant to have his say and after convicting the accused, the learned trial Court straightway held that the seized Bolero vehicle Page 7 of 9 // 8 // is to be confiscated to the State and the zimanama in respect of the seized documents of the Bolero vehicle to be cancelled. This was not in consonance with the provisions as enumerated above. After hearing learned counsel for both the parties, in the paragraph-26 of the impugned judgment, where the learned trial Court has held the seized Bolero vehicle to be confiscated to the State, is hereby set aside. The appellant shall produce the Bolero vehicle before the Inspector-in-charge, Balugaon Police Station which he had taken in zima along with the documents of the vehicle which he had also taken within a period of four weeks from today and the Inspector-in-charge, Balugaon Police Station on receipt of the vehicle and documents from the appellant shall intimate the learned trial Court about the same through learned Public Prosecutor and the Court shall then initiate the confiscation proceeding and opportunity of hearing has to be provided to the appellant to have his say in the matter and the Court has to decide whether the vehicle is to be confiscated or not. If the confiscation proceeding is not initiated within two weeks from the date of receipt of intimation from the Inspector-in-charge, Balugaon Police Station through the Public Prosecutor after the vehicle and its documents are handed over to the concerned authority, no further confiscation Page 8 of 9 // 9 // proceeding can be initiated and the vehicle and the documents shall be handed over back to the appellant by the I.I.C. However, if the confiscation proceeding is initiated, the same shall be disposed of in accordance with law within a period of two months from the date on which the appellant enters appearance. It is made clear that this Court has not expressed any opinion about the merits of the confiscation proceeding, which may be initiated in connection the offending vehicle. Accordingly, the CRLA is allowed. Free copy of this order be handed over to the learned counsel for the State. A copy of this order be communicated to the learned trial Court for compliance. Urgent certified copy be granted on proper application. Judge ( S.K. Sahoo) M.K.Rout Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Reason: Authentication Location: Orissa High Court Date: 13-Mar-2024 17:28:25 Page 9 of 9