IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-22894 of 2009 (O&M) Date of Decision: May 13, 2010. Suresh Kumar ...... PETITIONER Versus State of Haryana ...... RESPONDENT CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Ashwani Kumar Bura, Advocate for the petitioner. Mr. Ranvir Singh Arya, D.A.G., Haryana. ***** RAM CHAND GUPTA, J.(Oral) The present petition has been filed under Section 482 of Code of Criminal Procedure read with Section 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ‘Act’) for quashing the order dated 06.12.2008, Annexure P5, passed in Sessions Case No.124 NDPS of 2007 by learned Additional Sessions Judge, Fatehabad to the extent of directing the confiscation of vehicle Scorpio bearing registration No. MH- 02MA/8676 (now having registration No. HR-39A/6201) owned by petitioner – Suresh Kumar without giving notice and opportunity of hearing to the petitioner. CRM No.M-22894 of 2009 I have heard learned counsel for the parties and have gone through the whole record. As per the case of prosecution, Scorpio vehicle in dispute was intercepted on 03.02.2007 by the police and the same was found loaded with poppy husk. Accused Sunil Kumar and Balwan Singh were arrested at the spot, who were carrying poppy husk in the said vehicle. They faced trial and were convicted and sentenced by learned Additional Sessions Judge, Fatehabad vide judgment dated 06.12.2008, Annexure P5. At the time of passing order of sentence, learned trial Court has also ordered for confiscation of the vehicle used in the transportation of huge quantity of poppy husk under Section 60(3) of the Act. The said order has been challenged by the petitioner in this petition. It has been contended by learned counsel for the petitioner that he is registered owner of the said vehicle and however, impugned order has been passed without giving any notice to him. He has also placed reliance upon Shaik Gouse Mohiddin v. State of Chhattisgarh, 2002 Cri.L.J. 4417. However, it has been contended by learned counsel for the State that petitioner appeared before learned trial Court as PW5 and gave statement on oath, Annexure P4 stating categorically that he was not the owner of the vehicle and that he already sold the vehicle to one of the accused, Sunil Kumar. Hence, it is contended that as per his own statement petitioner was no more the owner of the vehicle on the date of occurrence and hence, no separate notice was required to be given to him as one of the accused, Sunil Kumar, was the owner of the vehicle, in question, who was held guilty for transporting the poppy husk in the vehicle. It is further contended by learned counsel for the State that the vehicle has since been put to auction by the 2 CRM No.M-22894 of 2009 State and the same has been sold to the highest bidder for consideration of Rs.2,06,000/- in auction held on 31.08.2009. It is pertinent to reproduce Section 60 of the Act, which reads as under:- “60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation. (1) Whenever any offence punishable under Chapter IV has been committed, the narcotic drug, psychotropic substance, the 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 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 which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any narcotic drug or psychotropic substance, 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 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.” A careful perusal of the aforementioned provision of the Act reveals that any conveyance used in carrying any narcotic drug or 3 CRM No.M-22894 of 2009 psychotropic substance is liable to be confiscated and hence, learned trial Court has rightly ordered for confiscation of the vehicle, which was used for carrying poppy husk by the accused. It is further pertinent to reproduce the statement, Annexure P4, given by the present petitioner when he appeared as PW5 before learned trial Court, which reads as under:- “PW5 On SA statement of Suresh Kumar son of Sh. Balbir Singh age 28 years, agriculturist resident of Sarsod, District Hisar. Stateed that I was working as purchasing and selling of vehicles alongwith my work of agriculture. In the month of November, 2006, I purchased one Scorpio vehicle No.MH- 02/8676 from Naresh Kumar son of Mani Ram resident of Salemgarh, District Hisar for an amount of Rs.3,60,000/-. On 5.1.2007 I sold the above scorpio to Sunil Kumar son of Dharam Singh resident of Sultanpur present today in the court for a sum of Rs.3,70,000/-. Accused Sunil Kumar gave me Rs.30,000/- as advance. The accused gave his undertaking that he will be paying the remaining amount of Rs.3,40,000/- after receiving the number from Haryana. Nothing was written regarding the sale to accused Sunil Kumar. I handed over the above Scorpio to accused on 5.1.2007. I deposited the old RC bearing Old Number and the documents of Scorpio in the office of RTA. Thereafter, registration number HR-39-A6201 was allotted to above Scorpio. The RC Ex.P22 was handed over to police by me and the same was taken into possession vide recovery memo Ex.P3, Memo was witnessed by me. XXX by Sh. B.S.Maharia, Advocate I have not obtained any affidavit or any agreement regarding the sale of Scorpio to accused. I have also not handed over any affidavit in this regard to accused. It is incorrect to say that I am the real owner of the vehicle Scorpio or that I have not sold the Scorpio to the accused or that I am deposing falsely to save myself from legal punishment.” 4 CRM No.M-22894 of 2009 A careful perusal of the above statement given by the present petitioner shows that he had taken the categoric stand that he was not having concern with the vehicle at the time of recovery of poppy husk and that he had already sold the same to one of the accused, Sunil Kumar. In the cross- examination, in reply to specific question put to him, he had stated that he was not the real owner of the vehicle involved in the transporting of poppy husk. Hence, merely on the ground that registration of vehicle was not changed in the name of the accused, it can’t be held that he was the owner of the vehicle on the date of occurrence. Hence, in view of the categoric stand taken by the present petitioner at the time of trial, it cannot be said that any illegality has been committed by learned trial Court in ordering for confiscation of Scorpio vehicle involved in this case without giving him notice. There is no merit in the present petition. Hence, the same is, hereby, dismissed. ( RAM CHAND GUPTA ) May 13, 2010. JUDGE 'om' 5