Power To Decide Interim Custody Of Vehicle Seized Under NDPS Lies With Magistrate/Special Court, Not With Drug Disposal Committee: Karnataka HC

A division bench of Justice B Veerappa and Justice S. Rachaiah while deciding on a reference made in view of two conflicting judgments of the High Court, clarified that, "The Drug Disposal Committee constituted under the Notification dated 16.1.2015 issued by the Central Government, under the provisions of Section 52A of the NDPS Act has no authority to consider the application for release of interim custody of the conveyance/vehicle."

Case Details:

The divergent views were taken by the high court in the Criminal Revision Petition No.623/2020 is arising out of the order passed by the trial Court dated 14.1.2020 and the judgement in the case of Zubaida –vs- State of Intelligence Officer, NCB, in Criminal Petition No.4792/2020 by the order dated 24.11.2020.

The Chief Justice by a special order dated 13.1.2020, referred this matter along with connected cases to this Bench for adjudication of the reference.

Submissions of petitioners:

Senior Advocate Sandesh J. Chouta and Senior Advocate P P Hegde and other advocates appearing for different petitioners submitted that in the cases arising out of NDPS Act, the Magistrate/Special Court is conferred power/jurisdiction to consider the application for interim custody of conveyances/vehicle under Section 451 r/w Section 457 of the Code of Criminal Procedure and not the Drug Disposal Committee.

Respondents arguments:

Advocate Madhukar Deshpande for the NCB submitted, in view of the amended provisions of Section 52A of the NDPS Act and the notification dated 16.1.2015, DDC is empowered to consider the application for release of the conveyance/vehicle for interim custody and not the Magistrate/Special Court under section 451/457 of the Code of Criminal Procedure.

Special Public Prosecutor V.S. Hegde, submitted though initially there was no provision under the NDPS Act for disposal of the seized item, Section 52A was introduced in the year 1989 by way of amendment which was further amended in the year 2014 by including the word, 'conveyance', thereby making applicable the said provisions to the conveyance seized on account of any offence committed under the NDPS Act. Further NDPS act being a special enactment it will prevail over CrPC.

Court findings:

On going through the amendment and the notification and relevant provisions of CrPC and NDPS act the bench observed, "If we analyse the amendment in true spirit, power given to the Drug Disposal Committee either under the provisions of Section 52A of the NDPS Act or issuance of Notification, dated 16th January, 2015, for disposal of items seized finally. The power of the learned Magistrate/Special Court to consider the application for release of the vehicle for interim custody would be subject to merits of the case, the amendment of Section 52A of the NDPS Act or the issuance of notification, does not take away the power of the learned Magistrate."

Further it said, "Considering the provisions of Sections 451, 452 and 475 of Cr.P.C., and Sections 36, 51, 60(3) and 63 of the NDPS Act, we find no distinction between the vehicles seized either under the Scheme of Cr.P.C., or NDPS Act."

It added, "Even the NDPS Act, does not provide a provision debarring the release of interim custody of the vehicle. The provisions of Section 451 Cr.P.C., is not inconsistent with the provisions of NDPS Act applicable to the vehicle seized under the NDPS Act as well. Thereby the vehicle used for transporting the Narcotic Drugs and Psychotropic Substances can also be released for interim custody invoking the provisions of Section 451 of Cr.P.C."

The bench then noted that notification, dated 16.1.2015, issued under Section 52A of the NDPS Act, categorically provides the manner in which the drug has to be disposed of by the officer in-charge, who shall after preparation of the inventory of seized narcotic drugs and psychotropic substances, controlled substances or conveyances as per Annexure-1 and shall apply to the Magistrate under Section 52A of the NDPS Act as per Clause (2) to the said notification, within 30 days from the date of receipt of chemical analysis report of seized substances.

It clarified, "It would appear that the Drug Disposal Committee has no other power except to act in the mode as prescribed for disposal in Clause-9(5)(e)." Further it said, "Which means, such disposal only be possible after the confiscation proceeding is complete and without confiscation, the disposal of the seized conveyance within the scheme of the NDPS Act, 1985 cannot be visualized…."

The court also highlighted the discrepancy in the stand of the respondents by saying, "Assuming that, it was the intention of the Legislature while enacting the provisions of Section 52A of the NDPS Act with effect from 29.5.1989, (To vest powers with DDC) either the Act or the Notification ought to have provided an Appellant Authority to the persons, who are aggrieved by any orders passed by the Drug Disposal Committee or for rejection of the application or allowing of the application for release of the vehicle."

It then held, "Thereby, it is clear that it is only the Court of Magistrate or Special Court, who is authorised to consider the application for release of interim custody of the vehicle (conveyance) and not the Drug Disposal Committee."

It expressed, "Even after the lapse of 26 years of issuance of first notification and 7 years of the last notification dated 16.1.2015, introducing conveyance by amendment Act No.16 of 2014 with effect from 1.12.2014, even after eight years, the respondents have not produced any material before this Court as to how many applications for release of interim custody of the vehicles have been considered and disposed of by the Drug Disposal Committee throughout India."

Further it opined, "Only after the order is passed by the Hon'ble Supreme Court in the case of Mohanlal (Union of India -vs- Mohanlal and Another reported in (2016)3 SCC 379), on 28th January, 2016 and after the decision taken by the learned Single Judges of this Court in the case of Zubaida, the learned Judges of the Special Courts have started rejecting the application for release of interim custody of the vehicle under the provisions of Sections 451 and 457 of Cr.P.C. All along, almost all the Courts in India were considering the applications for interim custody under the provisions of Section 451 of Cr.P.C, for release of the vehicles except the learned Single Judge of this Court in the case of Zubaida and the Division Bench of Kerala High Court in the case of Shajahan reported in 2019 SCC Online Ker. 3685 and in the case of Smart Logistics -vs- State of Kerala reported in 2020 SCC Online Ker. 3760 by the learned Single Judge holding that the Drug Disposal Committee is the authority to consider such application for interim custody of the seized vehicle relying upon the dictum of the Hon'ble Supreme Court in the case of Mohanlal."

Further the court held, "The entire object of the Notification is to either dispose or destroy the drugs. Clause 9(1), (2), (4), (5)(a)(c)(d) of the Notification concerns with Disposal, while Clause 9(5)(b), (6), (7) concerns with Destruction. 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 interim custody and it only concerns with Disposal which is akin to Section 452 of the Cr.P.C."

It added, "Needless to emphasise 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."

Accordingly it answered the reference.

Case Title: RATHNAMMA v. STATE REPRESENTED BY PSI, CHANNAGIRI POLICE STATION.

Case No: CRL.P No.3571/2021

Citation no: 2022 LiveLaw (Kar) 216

Date of Order: 17TH DAY OF MAY, 2022

Appearance: For petitioners, Senior Advocate SANDESH J. CHOUTA for advocate SUNIL KUMAR S. Senior Advocate P.P. HEGDE, for Advocate RAJESHWARI M. Advocate MASKOOR HASHMI M.D. Advocate K.V. SATISHCHANDRA, ADVOCATE FOR GOPAL K. B for petitioner.

For Respondents, Special PP V.S. HEGDE, a/w Advocate K.P. YASHODA.

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