1989 (2) TMI 417 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the Magistrate to pass an order for the return of the seized taxi.
2. Applicability of Sections 451 and 457 of the Criminal Procedure Code (Cr.P.C.) in the context of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
3. Provisions for the disposal and confiscation of properties or conveyances under the NDPS Act.
4. Judicial discretion in granting interim custody of the seized vehicle.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Magistrate to Pass an Order for the Return of the Seized Taxi:
The prosecution argued that the Magistrate lacked jurisdiction to order the return of the taxi since the case was to be tried by the Sessions Judge. The court noted that Sections 52(2) and 55 of the NDPS Act refer to the Magistrate before whom the persons arrested and articles seized shall be produced. Until the case is committed to the Sessions Court, the Magistrate is in charge of the seized property and has the authority to pass appropriate orders. The court held that the Magistrate had jurisdiction to pass interim orders regarding the custody of the vehicle.

2. Applicability of Sections 451 and 457 of the Criminal Procedure Code (Cr.P.C.) in the Context of the NDPS Act:
The prosecution contended that Sections 451 and 457 of the Cr.P.C. were not applicable due to the specific provisions of the NDPS Act. The court examined Sections 60 and 63 of the NDPS Act, which deal with the liability and procedure for confiscation of conveyances used in committing offenses under the Act. The court concluded that the provisions of the Cr.P.C. are not inconsistent with the NDPS Act and can be applied for interim custody of the vehicle. The court emphasized that the vehicle must be available at the time of the trial or at the end of the trial for confiscation purposes.

3. Provisions for the Disposal and Confiscation of Properties or Conveyances Under the NDPS Act:
The court reviewed Sections 60 and 63 of the NDPS Act, which outline the conditions under which conveyances used in committing offenses are liable to confiscation. The court noted that the Act allows for the sale or disposal of articles liable to speedy and natural decay or if their sale would benefit the owner. However, this proviso was not applicable in the present case, as the issue was about interim custody, not disposal or sale. The court held that the owner of the vehicle could seek interim custody subject to terms and conditions ensuring the vehicle's availability for confiscation if required.

4. Judicial Discretion in Granting Interim Custody of the Seized Vehicle:
The court observed that the Magistrate's order lacked a detailed discussion of the arguments and documents presented by both parties. The discretion to grant interim custody must be exercised judicially and not arbitrarily. The court found the Magistrate's order to be arbitrary and set it aside. The court granted liberty to the respondent to file a fresh application in the Sessions Court, where the case had been committed. The Sessions Judge was directed to decide the matter on its merits after hearing both parties and considering all relevant documents and affidavits.

Conclusion:
The impugned order of the Magistrate was set aside, and the respondent was given liberty to file a fresh application in the Sessions Court. The Sessions Judge was instructed to decide the matter on its merits, ensuring a judicial and thorough consideration of all arguments and evidence presented by both parties. The court emphasized the applicability of Sections 451 and 457 of the Cr.P.C. for interim custody, provided they are not inconsistent with the NDPS Act.