1 HIGH COURT OF MADHYA PRADESH JUDICATURE AT JABALPUR Criminal Appeal No. 2177/2006 PRESENT : HON'BLE SHRI JUSTICE G.S. Solanki Hanif Khan S/o Hasan Khan Vs. State of Madhya Pradesh *** Shri Manish Datt, learned counsel for the appellant. Shri P.C. Jain, learned Panel Lawyer for the respondent/State. Date of hearing: 13/01/2011 Date of Judgment: 01/07/2011 J U D G M E N T The appellant has preferred this appeal under Section 454 of the Code of Criminal Procedure being aggrieved by the impugned judgment/order dated 26.9.2006 for disposal of the property passed by the learned Special Judge, Narcotic Drugs and Psychotropic Substances Act, Rewa in Special Case No.7/2006 whereby Royal Marshal Jeep bearing registration No. MP-17B/6703 owned by the appellant has been directed to be confiscated. 2. Facts in short give rise to this appeal is that on 27.1.2006, R.B. Sharma, Station House Officer of Police Station Sohagi during course of patrolling in the night, stopped a Jeep bearing Registration No.MP-17B/6703 near the RTO Barrier, which was 2 driven by Shriram Gupta. It is alleged that on search one quintal thirty seven kilograms and five hundred grams of contraband article (Ganja) was found in the aforesaid jeep. Same was seized before the panch witnesses and a case under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') was registered against Shriram Gupta and the present appellant Hanif Khan S/o Hasan Khan. Trial was conducted against Shriram Gupta and he was convicted and sentenced by the learned Special Judge. Thereafter, during disposal of the property, learned Special Judge passed the order of confiscation and auctioned the aforesaid vehicle. Hence this Appeal. 3. Learned counsel for the appellant submitted that the trial Court committed illegality in passing the impugned judgment/order of confiscation without providing an opportunity of hearing to the appellant (a registered owner of the jeep), therefore, he prays for setting aside the impugned judgment/order of confiscation of Royal Marshal Jeep No. MP-17B/6703. 4. On the other hand, learned counsel for the respondent/State justified and supported the impugned judgment/order of the trial Court. He further submitted that the appellant was also made co-accused in the aforesaid criminal case but he did not face the trial and remained absconding, therefore, the Trial Court had not committed any illegality in passing the aforesaid judgment/order. 3 5. I have heard the parties and perused the impugned judgment, evidence and other material on record. 6. It reveals from para-2 of the impugned judgment that the present appellant Hanif Khan S/o Hasan Khan was not available to police for prosecution, therefore, police declared him absconded and filed a challan only against Shriram Gupta. In these circumstances, the trial Court cannot be blamed for not providing an opportunity of hearing to the appellant. In ILR (2011) M.P. 780, Abhijit Singh Vs. State of Madhya Pradesh, Division Bench of this Court examined the applicability of proviso attached with Section 63(2) of the N.D.P.S.Act and after interpreting the definition of owner in NDPS Act has held that where the person who committed the offence under the Act is known and has faced the trial and himself is the owner of the vehicle, the proviso interpreted to Sub-Section (2) of Section 63 of the NDPS Act would not be applicable. In this case, appellant is claiming himself as registered owner of seized vehicle No. MP-17B/6703 and certainly he had not faced the trial/appeared before the trial Court; in this way trial Court committed illegality in passing the impugned judgment/order for confiscation of the aforesaid vehicle without providing an opportunity of hearing to the appellant. At the same time, it reveals from the record that appellant Hanif Khan S/o Hasan Khan remained absconded in aforesaid criminal trial and even he has not been charge-sheeted by the police. In these circumstances, it is not expected from the trial Court to search him for providing opportunity of being 4 heard before passing the aforesaid order. 7. Thus, the appeal is allowed and the order of confiscation of vehicle No. MP-17B/6703 passed by the learned Special Judge in the impugned judgment dated 26.9.2006 is hereby set aside subject to surrender of appellant Hanif Khan S/o Hasan Khan/made available himself for trial before the Special Judge, N.D.P.S. Act, Rewa on or before 10/8/2011. If he made available for trial then he has full opportunity to contest the case and he can adduce the evidence as to the effect that vehicle was used without his knowledge or connivance for transportation of contraband article (Ganja). 8. The appeal is allowed upto the aforesaid extent. (G.S. Solanki) JUDGE ravi