Sandeep Mehta, J. - (1.) THE present misc petition has been filed challenging the order dt. 21.07.2011 passed by the learned Special Judge, NDPS Act Cases, Jodhpur whereby the learned Special Judge instead of deciding the question of confiscation or otherwise of the vehicle bearing Pick -up Jeep RJ -19 IG 6779/ has consigned the file to record. Petitioner being registered owner of the jeep in question, on the conclusion of the trial of the case, was given a notice under Sec. 63 of the NDPS Act. The petitioner appeared and gave her evidence before the trial Court. Thereafter, the trial Court by the impugned order dt. 21.07.2011 has consigned the file to record pending disposal of the appeal. The vehicle continues to be in the police custody. Learned counsel for the petitioner submits that the procedure as laid down under Sec. 60 of the NDPS Act does not prescribe for the result of the appeal to be considered before making the confiscation or otherwise. Learned counsel has referred to the provisions of Sections 60 and 63 of the NDPS Act which reads as under: - "60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation. -(1) Wherever 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 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 substance) 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 by 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. Procedure in making confiscation. -(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the Court shall decide whether any article or thing seized under this Act is liable to confiscation under Sec. 60 or Section 61 or Section 62, if it decide 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 Sec. 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, an 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, (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 shall, as nearly as may be practicable, apply to the net proceeds of the sale."
(2.) LEARNED counsel submits that a bare reading of these provisions reveals that the trial Court is competent to decide the issue of confiscation or otherwise of the vehicle irrespective of the accused being convicted or acquitted on being discharged and an independent system of enquiry is provided under the provisions of these two sections whereby learned trial Court has to decide whether the vehicle is to be confiscated or not. Learned counsel submits that once the enquiry envisaged under these provisions had been concluded, then the necessary follow up of the proceeding was that the trial Court had to decide the matter. Learned counsel submits that peculiar scheme of the section does not even provide for an appeal against the order of confiscation. Thus, he argues that the Legislature has consciously framed these provisions whereby the result of the appeal is immaterial for deciding the question of fate of the seized article or vehicle. I have given my thoughtful consideration to the rival submissions and have carefully gone through the impugned order as well as the provisions of the Section 60 and 63 of the Act.
(3.) UNDER the scheme of these provisions, the question of confiscation or otherwise of the vehicle seized in connection with the recovery of narcotics has to be decided by the trial Court by way of an independent enquiry. The fate of the criminal case be it conviction or acquittal has not been considered to be relevant for the purpose of the confiscation proceedings. Even an appeal has not been provided against an order of confiscation. Thus, this Court feels that the direction of the trial Judge to consign the file in relation to the confiscation proceedings to record, cannot be said to be just and proper. Resultantly, the misc. petition succeeds. The order dt. 21.07.2011 passed by the Special Judge, NDPS Act Cases, Jodhpur is set aside and the learned Special Judge is directed to conclude the proceedings of confiscation under Sec. 60 and 63 of the NDPS Act in relation to the vehicle in question on the merits of the case at the earliest. Stay petition is also disposed of.;