1989 (2) TMI 126 - HC - Customs

Issues Involved:
1. Jurisdiction of the Magistrate to order 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. Interpretation of provisions related to confiscation and interim custody under the NDPS Act.
4. Judicial discretion and the arbitrariness of the Magistrate's order.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the Magistrate to Order the Return of the Seized Taxi:
Mr. Gupte contended that the learned Magistrate lacked jurisdiction to pass any order for the return of the taxi, as the case was to be tried by the learned Sessions Judge, who alone has such jurisdiction. The Court examined Section 52(2) and Section 55 of the NDPS Act, which refer to the Magistrate before whom the persons arrested and articles seized shall be produced. The Court concluded that until the case is committed to the Court of Sessions, the Magistrate is in charge of the seized article or vehicle and has the authority to pass appropriate orders under the law.

2. Applicability of Sections 451 and 457 of the Cr.P.C. in the Context of the NDPS Act:
Mr. Gupte argued that Sections 451 and 457 of the Cr.P.C. would not apply due to certain provisions of the NDPS Act, specifically Sections 41, 42, 43, 51, 52, 53, and 55. Section 51 of the NDPS Act states that the provisions of the Cr.P.C. shall apply insofar as they are not inconsistent with the NDPS Act. The Court found that the NDPS Act does not necessarily exclude the operation of Sections 451 or 457(1) of the Cr.P.C. The Court held that these sections are not inconsistent with the NDPS Act and can be applied for interim custody of the vehicle.

3. Interpretation of Provisions Related to Confiscation and Interim Custody Under the NDPS Act:
Mr. Gupte submitted that the vehicle used for the commission of an offense under the NDPS Act is liable to confiscation, which should occur only at the end of the trial. He argued that there is no provision under the Act for interim custody of the vehicle. The Court examined Sections 60 and 63 of the NDPS Act, which deal with the liability and procedure for confiscation. The Court concluded that these provisions do not prohibit interim custody and that an innocent owner has the right to seek interim custody under Sections 451 or 457(1) of the Cr.P.C., provided the vehicle is made available for confiscation if required.

4. Judicial Discretion and the Arbitrariness of the Magistrate's Order:
The Court found that the learned Magistrate's order was arbitrary and lacked a discussion of the arguments and documents presented. The discretion under Section 457(1) of the Cr.P.C. must be exercised judicially and not in a cavalier fashion. The Court decided to set aside the Magistrate's order and allowed the respondent to file a separate application in the Court of Sessions, where the case had been committed. The Sessions Judge would then decide the matter on its merits after hearing both parties.

Conclusion:
The impugned order dated March 9, 1988, passed by the learned Magistrate was set aside. The respondent was given liberty to prefer a separate application in the Court of Sessions. The prosecution was allowed to file a proper affidavit and rely on relevant documents. The learned Sessions Judge would decide the matter on its merits after hearing both parties. The rule was made absolute accordingly.

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