IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.11.2009 CORAM: THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN Crl.A.No.846 of 2001 K.Shaji Kumar .. Appellant Vs. State rep. by The Forest Range Officer, Coimbatore. (O.R.No.75 of 2000) .. Respondent PRAYER: Criminal Appeal is filed under section 454 of Cr.P.C. r/w Section 63 (3) of the Narcotice Drugs and Phychotropic Substances Act, 1985, against the order of confiscation of the Mahindra Jeep bearing Registration No.KL-09-D-358 dated 18.05.2001 passed in C.C.No.87 of 2001 on the file of the Presiding Officer for Special Court for E.C./NDPS Act cases for the Districts of Coimbatore, Erode and Nilgris at Coimbatore. For Appellant : Mr.M.Arvind Kumar For Respondent : Mr.Hasan Mohammed Jinnah Additional Public Prosecutor (Crl.side) J U D G M E N T This Criminal Appeal has been preferred by the appellant against the order of confiscation of the Mahindra Jeep bearing Registration No.KL-09-D-358 dated 18.05.2001 passed by the learned Presiding Officer in C.C.No.87 of 2001 for Special Court for E.C./NDPS Act cases for the Districts of Coimbatore, Erode and Nilgris at Coimbatore, wherein, he has directed to confiscate the vehicle to the State after expiry of the appeal time . 2. The brief facts giving rise to the filing of this appeal are:- The appellant is the owner of the Mahindra Jeep bearing Registration No.KL-09-D-358. The respondent had filed a case in C.C.No.87 of 2001 against the accused persons 1 to 3 namely Natarajan, Kubendran and Sudhir for an offence punishable under Section 20 (b) (1) of the NDPS Act. The prosecution case was that on 18.12.2000, when the respondent was indulged in a vehicle check up at https://hcservices.ecourts.gov.in/hcservices/ Mangarai check post along with other Forest party, at about 1.00 P.M., he noticed a Mahindra Jeep bearing Registration No.KL-09-D-358 coming from Anaikatti towards Coimbatore, when it was intercepted the said vehicle was found driven by the third accused Sudhir. The first and second accused were found to be in possession of two cloth bags containing ganja weighing 4 Kgs each totalling 8 Kgs concealed in between the rear-seats and thereby, the accused Nos.1 to 3 were charged for the offence punishable under Section 20 (b) (1) of NDPS Act (herein after referred to as Act). 3. The trial Court found the first and second accused guilty for offence punishable under Section 20 (b) (1) of NDPS Act and the third accused for offence punishable under Section 20 (b) (1) of NDPS Act r/w 29 of the said Act. The first and second accused were convicted and sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.15,000/- (Rupees Fifteen Thousand Only) each and the third accused was convicted and sentenced to undergo six months rigorous imprisonment. The trial Court also ordered confiscation of contraband seized by the respondents including Mahindara Jeep which was marked as M.O.6 in the case. 4. Mr.M.Arvind Kumar, the learned counsel for the appellant submitted that pending the trial, the appellant filed a petition seeking interim custody of the vehicle on the ground that he is the owner and was plying the Jeep as a 'T' Board Passenger Vehicle and the third accused is the driver of the said Jeep and the interim custody was also given to him. He has submitted that the driver use to give accounts to him daily and the petitioner's entire family was solely depend upon the income of hiring of the said vehicle. Without his knowledge, the driver has used the vehicle for transporting contraband along with the first and second accused. He would submit that he is not the accused and the learned Special Judge for NDPS Act was pleased to return the said vehicle to the petitioner on interim custody on being satisfied that he is the owner of the said vehicle. He would further submit that he also produced the documents relating to the vehicle before the lower Court. But the trial Court while convicting the accused persons, directed the confiscation of the vehicle to the State without holding an enquiry as to whether the vehicle seized was liable to be confiscated under Sections 60, 61 or 62 of NDPS Act and also without hearing the petitioner the owner of the vehicle. He would submit that no notice was ordered and he was not given an opportunity to put forth his claim on the ownership of his vehicle. 5. It is no doubt true that under Section 60 (3) of the said Act, any animal or conveyance used in carrying any Narcotic Drugs or Psychotropic Substance shall also be liable to confiscation, unless the owner of the said vehicle proves that the vehicle was used without knowledge or consent of the owner himself and that he had taken all reasonable precautions against such use. The occasion to https://hcservices.ecourts.gov.in/hcservices/ examine this will arise only where the Court proposes to confiscate the vehicle. In this case admittedly, the trial Court has ordered confiscation of the vehicle to the State without ordering notice to the owner of the vehicle and without affording an opportunity to him to show that the vehicle was used without his knowledge or his consent. Admittedly during the pendency of the trial, the petitioner has got the interim custody establishing before the Court that he is the owner of the Jeep bearing registration No.KL 09 D 358. 6. The learned counsel for the appellant contended that the Jeep was used without the petitioner's knowledge and he has taken all precautions while giving the jeep to the third accused for being driving the vehicle as passenger transport vehicle. Indisputably the petitioner being not an accused and the owner of the vehicle he ought to have been given an opportunity to show that he has no knowledge about the transport of the contraband in his vehicle and also he has taken all precautions while handing over the vehicle to his driver. He would submit that without issuing any notice, the Court below has directly confiscated the vehicle to the State and the same is against the principles of natural justice. 7. There is every force in the contentions put forth by the learned counsel for the appellant. There is absolutely no material to indicate in the judgment that due notice was given to the owner of the vehicle before passing an order directing confiscation of the vehicle to the State. The trial Court failed to comply with the provision contemplated under Section 60 (3) of the Act before ordering confiscation of the vehicle and the same is liable to be set aside. In the result, the Criminal Appeal is allowed and the order passed by the learned Presiding Officer for Special Court for E.C./NDPS Act cases for the Districts of Coimbatore, Erode and Nilgris at Coimbatore, directing confiscation of the vehicle to the State alone is set aside. The matter is remitted back to the trial Court and the learned trial Judge shall give sufficient opportunity to the appellant and after holding proper enquiry shall pass orders regarding the disposal of the vehicle as contemplated under Section 63 of NDPS Act. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar DP https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Special Court for E.C./NDPS Act cases, for the Districts of Coimbatore, Erode and Nilgris at Coimbatore. 2.The Forest Range Officer, Coimbatore. 3.The Public Prosecutor, Madras High Court, Chennai. Crl.A.No.846 of 2001 RS(CO) EM/19.12.09 https://hcservices.ecourts.gov.in/hcservices/