CRIMINAL REVISION NO.1905 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 30, 2011 Mukesh Kumar .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Bijender Dhankar, Advocate, for the petitioner. Mr. Saurab Mohunta, DAG, Haryana, for the State. **** RANJIT SINGH, J. The prayer of the petitioner for release of his car No.HR-20-S-1517 make Indica on superdari has been declined by the Trial Court. Aggrieved against the same, he has filed the present petition for setting-aside the said order and for directing the release of the car on superdari to him during the pendency of trial. This car was intercepted by the police party and 80 Kgs. of poppy husk was recovered from the said vehicle CRIMINAL REVISION NO.1905 OF 2010 :{ 2 }: besides some arms and live ammunitions. The police has registered a case against three persons under the provisions of NDPS Act and under the Arms Act. Brother of the petitioner is an accused in this FIR. The car, being case property, was seized by the police. The petitioner, being its registered owner, has filed this application for release of the car on superdari. The petitioner seeks release of the car on superdari on the ground that the same is getting damaged in the police station. The petitioner has averred in the application that he will produce the same in the Court as and when required. The Trial Court, however, has declined the prayer of the petitioner by referring to a Division Bench judgement of this Court in Tarsem Singh Vs. State of Punjab, 2005 (4) R.C.R. (Criminal) 300. In Tarsem Singh's case (supra), the Division Bench of this Court was dealing with an appeal filed by an accused, who was convicted for an offence under NDPS Act for recovery of 20 gunny bags of poppy husk from a tractor trolley. While disposing of the appeal, the Division Bench noticed that the tractor trolley in question, which was used for transporting the poppy husk, was released on superdari during the pendency of the case. The Court noticed that such an order, releasing the vehicle on superdari, was passed by Sub Divisional Judicial Magistrate. It is observed that the Magistrate did not have jurisdiction to dispose of such application in view of Section 63 of the NDPS Act. Noticing this provision, the Court has CRIMINAL REVISION NO.1905 OF 2010 :{ 3 }: observed that this Section makes it clear that irrespective of the decision of the trial, any article or thing seized under the NDPS Act, which are used in commission of offence have got to be confiscated and the Special Judge is obliged to start separate proceedings in relation to confiscation after expiry of one month, if no one comes forward to claim the property. It is, thus, observed that in view of the provisions of Section 63 of the NDPS Act, the provisions of the Code of Criminal Procedure as contained in Section 451 and 452 IPC will stand modified to the extent indicated in the afore-mentioned Sections and any claimant to the property will be obliged to satisfy the Court in terms of the exceptions carved out in Sections 60, 61 and 62 of the NDPS Act before he is returned the custody of the vehicle so seized, when it was being used for transporting narcotic substance. The Court has accordingly recalled the order of superdari, giving liberty to the Court to complete the confiscation proceedings. The counsel for the petitioner, on the other hand, has relied upon decisions rendered by this Court in the cases of Balwinder Singh Vs. State of Punjab, 2008(4) R.C.R. (Criminal) 507, Harpreet Singh Vs. State of Punjab, 2006 (4) R.C.R. (Criminal) 719, Mohan Singh Vs. State of Punjab, 2001(2) R.C.R. (Criminal) 664 and Nirmal Singh Vs. State of Punjab, 2007(1) R.C.R. (Criminal) 986. In all such cases, the Courts have directed release of the vehicle on superdari under the provisions of Section 451 of the Code of Criminal Procedure. In Balwinder Singh's case (supra), the direction to release the vehicle on superdari was given by observing that even if the vehicle is required to be confiscated at a subsequent stage, the same can be achieved irrespective of the fact CRIMINAL REVISION NO.1905 OF 2010 :{ 4 }: that the vehicle is in custody of owner etc. Judgement in Manmohan Singh's case (supra) was rendered prior to Tarsem Singh's case (supra) but other judgements are subsequent to the judgement rendered in Tarsem Singh's case (supra). In none of these cases, the Court has referred to the view expressed by the Division Bench of this Court in Tarsem Singh's case (supra). No doubt, Section 451 gives a discretion to the Court to direct release of the case property during the pendency of the case but once the offence alleged is under the NDPS Act, the aspect that the vehicle or other case property is liable to confiscation under the provisions of Section 63 of the NDPS Act may have to be kept in view. This perhaps is the concern and view expressed by the Division Bench of this Court in Tarsem Singh's case (supra). As per Sections 60, 61 and 62 of the NDPS Act, the illicit drug, substance, plants/articles and conveyances are liable to confiscation. The procedure for directing confiscation is given in Section 63 of the NDPS Act. These Sections, thus, makes an enabling provision for passing an order of confiscation of vehicle etc. It may have to be seen if these provisions have any direct bearing on the right of the Court to release the vehicle on superdari, which is liable to confiscation. What has apparently been observed in Tarsem Singh's case (supra) was the jurisdiction of the Magistrate to pass an order under Section 451 Cr.P.C. and not that the Courts would not have any jurisdiction to direct release of the vehicle on superdari during the pendency of the case. Thus, whether to release or not to release the vehicle on superdari, would always be within the enabling powers of the Court having jurisdiction in this regard and the Court CRIMINAL REVISION NO.1905 OF 2010 :{ 5 }: can pass any appropriate order having regards to the facts and circumstances of the case. The Court, while declining the prayer of the petitioner for release of his vehicle on superdari, thus, apparently may not have correctly applied the ratio of law laid down in Tarsem Singh's case (supra). However, the vehicle, which is otherwise used for transporting other narcotic substance, may not have been released on superdari to check its use for such like purposes. The petitioner may be justified in submitting that the vehicle while lying with the police may get damaged but that is the consequences, which the petitioner has to bear in view of the involvement of the vehicle in a serious offence for use in transporting narcotic substance. The fact that this vehicle is liable for confiscation after the final outcome of the case or otherwise can also not be completely ignored while considering the prayer for release of the same on superdari. I am, thus, not inclined to interfere in the impugned order passed by the Trial Court. The petition is accordingly dismissed. November 30, 2011 ( RANJIT SINGH ) khurmi JUDGE