- (1.) The petitioner has challenged the order dated February 2, 2015 passed by Learned Judge, Special Court under NDPS Act, Berhampore, Murshidabad in NDPS Case No.270 of 2014 by filing this revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.
(2.) The backdrop of filing the revisional application is as follows: Md. Hafiz Alam, Sub-Inspector of Police, Jalangi Police Station filed one written complaint before the Officer-in-charge of Jalangi Police Station disclosing an offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter the NDPS Act). The police started Jalangi Police Station Case No.834 of 2014 dated 18.09.2014 on the basis of the said written complaint. The contents of the written complaint treated as FIR disclose that the accused Enamul Haque was transporting 5,000 ml. of codeine mixture by one motor cycle bearing no.WB58X-4487, when he was caught red-handed and the contraband articles and motor cycle were seized from his possession. The police submitted charge-sheet against the accused Enamul Haque on the allegation of committing offence under Section 21(c) of the NDPS Act. The present petitioner filed an application before the Court of Learned Judge, Special Court under NDPS Act, Berhampore, Murshidabad for return of the seized motor cycle bearing no.WB58X-4487 on the ground that the petitioner is the registered owner of the said motor cycle and that the petitioner had no knowledge about use of the said motor cycle by the accused person for carrying narcotic drug. Learned Judge of the trial court rejected the application of the petitioner for return of the seized motor cycle on the ground that the petitioner has failed to prove that the seized motor cycle was used by the accused person without the knowledge or connivance of the petitioner or his agent and that the petitioner had taken all reasonable precautions against the use of the said motor cycle by the accused person for carrying the contraband articles. The said order dated February 2, 2015 passed by Learned Judge of the Special Court is under challenge in the instant revision.
(3.) By referring to the provisions of Section 60 and Section 63 of the NDPS Act, Mr. Kabir, Learned Counsel for the petitioner contends that the seized motor cycle is liable to confiscation for transporting narcotic drug or psychotropic substance, unless the owner of the motor cycle proves that the motor cycle was used without his knowledge or connivance and that the owner of the motor cycle had taken all reasonable precautions against such use. Mr. Kabir further contends that the order of confiscation of the seized motor cycle can be passed by the trial court on conclusion of the trial when the accused is convicted or acquitted or discharged. According to Mr. Kabir, the confiscation of the conveyance seized for carrying narcotic drug or psychotropic substance cannot be done without hearing the person who has a right to claim the said conveyance on conclusion of trial and without recording of evidence by the trial court. Mr. Kabir argues that there is no provision in the NDPS Act for return of the seized vehicle during pendency of the inquiry or trial of the criminal case and as such the provisions of Section 451 or Section 457 of the Code of Criminal Procedure can be invoked for return of the seized vehicle during any inquiry or trial before the criminal court. Mr. Kabir has vehemently urged this court to consider that in the absence of any bar under the NDPS Act the interim custody of the seized vehicle can be given to the registered owner of the vehicle by invoking the provisions of Section 451 or Section 457 of the Code of Criminal Procedure, 1973. Mr. Kabir has relied on the decisions reported in (2002) 10 SCC 283, 1989 (2) Bom CR 209, (2011) 2 C Cr LR (Cal) 755 and (2006) 2 CHN 198 in support of his above contention.;