Interim Custody Of Conveyance/Vehicle Seized Under NDPS Act Can Be Granted U/S 451 & 457 CrPC: Allahabad High Court

The Allahabad High Court has observed that the Magistrate/Special Judge, NDPS Act has the power to consider the application for the interim custody of the conveyance/ vehicle (seized under the NDPS Act) under the provision of Section 451 and 457 of Cr.P.C.

"A perusal of Section 36- C and 51 of the NDPS Act indicates that the provisions of Cr.PC. so far as, they are not in contradictions with the special Act NDPS Act, shall be applicable to the NDPS Act and as in the NDPS Act no procedure for interim custody of the vehicle is prescribed Sections 451 and 457 of Cr.P.C. specifically deal with the custody and disposal of property pending trial and the procedure to be followed by the police upon seizure of property," the bench of Justice Sadhna Rani (Thakur) remarked.

The case in brief

The NCB team intercepted the truck in question (Tata Mini Truck) and the alleged recovery of 975 kg. ganja was shown from the vehicle owned by the revisionist. To ascertain the role of the vehicle owner, various notices are alleged to have been sent by the NCB, but as per the version of NCB, the revisionist refrained from attending the office of NCB.

However, the revisionist denied the fact that he had received any notice from NCB, but it is an admitted fact that the revisionist did not attend the office of NCB and due to the non-appearance of the revisionist, the confiscation proceedings regarding the Tata Mini Truck could not be started and the investigation is still in progress.

Thereafter, the revisionist moved an application before the Special Judge N.D.P.S. Act/ Additional Session Judge, Allahabad for the release of Tata Mini Truck, however, the same was rejected, challenging the same order, the revisionist moved to the High Court.

It was argued by the revisionist that his vehicle be released as per provisions of Cr.P.C. (Sections 451 and 457) in light of the judgment of Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujrat, (2002)10 SCC 283 and the judgment of Allahabad HC in Dhirendra Singh Thapa Vs. State of U.P. and another [Criminal Revision No.1926 of 2018].

Court's observations 

At the outset, the Court noted that Section 52-A of the NDPS Act provides for the seizure and disposal of seized narcotic drug psychotropic substances and conveyances, however, in the instant case, the vehicle had not been confiscated as yet.

Further, the Court took into account the recent ruling of the Karnataka High Court in the case of RATHNAMMA v. STATE REPRESENTED BY PSI, CHANNAGIRI POLICE STATION.2022 LiveLaw (Kar) 216, wherein it was held that a Magistrate or the Special Court (under the Narcotic Drugs and Psychotropic Substances Act) is conferred with the power/jurisdiction to consider the application for 'interim custody' of the conveyance/vehicle under the provisions of Sections 451 and 457 of the Code of Criminal Procedure in cases arising out of the provisions of NDPS Act.

In this very case, the Karnataka High Court had taken into account a very significant point that the Central government's 2015 notification deals with the disposal and destruction of drugs, and the only clause which has relevance to conveyances is Clause 9(5)(e) which depicts that seized conveyances shall be sold off by way of tender or auction as determined by the Drug Disposal Committee.

"The said Clause does not concern to interim custody and it only concerns with Disposal which is akin to Section 452 of the Cr.P.C. Needless to emphasize that this sale is post-trial. Thereby the Notification, dated 16.01.2015 or the provisions of Section 52A of the NDPS Act does not deal with the interim custody of the seized Articles or Conveyances. The Legislature has intentionally not used the word "Custody" under Section 52A of the NDPS Act, as can be seen under Sections 451 and 457 of the Code of Criminal Procedure. Therefore, the power or jurisdiction cannot be conferred to authority/officer including the Drug Disposal Committee, who is not vested with the same by the Statute. The power under the Notification issued cannot go beyond the statutory provisions of Section 52A of the NDPS Act," the Court had remarked.

In view of this, the Court was of the opinion that the law laid down by the Apex Court in Sunderbhai Ambalal Desai (supra) will apply to the vehicle seized under the NDPS Act as well and thus, the Magistrate/ Special Judge, NDPS Act shall have the power to consider the application for the interim custody of the conveyance/ vehicle under the provision of Section 451 and 457 of Cr.P.C.

The revision was thus allowed and the order dated October 29, 2021 passed by the Special Judge N.D.P.S. Act/ Additional Session Judge, Allahabad was set aside.

Case title - Rajdhari Yadav v. State of U.P. and Another [CRIMINAL REVISION No. - 3607 of 2021]

Case Citation: 2022 LiveLaw (AB) 401

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