MAHARAJAN Vs. SUB INSPECTOR PROHIBITION AND EXCISE

JUDGEMENT

(1.) The order of the learned Additional Sessions Judge,-Warangal in Criminal Miscellaneous PetitionNo. 961 of 1995, dated 28-7-1995 is assailed in this Writ Petition, wherein the learned Additional Sessions Judge rejected the application filed under Section 451 Cr.P.C. for interim custody of the vehicle said to belong to the petitioner bearing Registration No. ATS 2346 which was seized by the Excise authorities on the ground that ganja, a narcotic drug, was being transported and committed an offence punishable under Section 8(c) read with Section 20, Clause l(b) of the Narcotic Drugs and Psychotropic Substances Act, 1982. Technically speaking, the petitioner ought to have filed a petition under Section 482 Cr.P.C. However, the learned Advocate for the Petitioner submits that this Writ Petition may be treated as one under Section 482 Cr.P.C. and by exercising similar powers the matter may be disposed of on merits. The learned Government Pleader for the respondent has nothing to say in this regard. There is neither any bar nor improper in dealing with such a petition filed under Article 226 of the Constitution of India as one under Section 482 Cr.P.C. since a similar power under the latter Section can be exercised under Article 226 of the Constitution of India

(2.) The learned Advocate for the petitioner has contended that the petitioner claimed the release of the lorry on the ground that he is the owner of the lorry in question, he had no knowledge of any such prohibited drug being carried in the said lorry, he was prepared to abide by terms to be imposed by the court, but, still the learned Judge dismissed the application merely on the ground that an offence punishable under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1982is committed and that the lorry has to be finally confiscated. Learned Government Pleader for the Respondent is unable to support the order in law. However, he submits that having due regard to the gravity of the offence alleged against the offender driver, who was said to be transporting a huge quantity of ganja and having due regard to the requirement of the lorry for identification, etc. and having due regard to the fact that ultimately the vehicle has to be confiscated, the learned Judge appears to have passed a reasoned and justifiable order which he wants to support.

(3.) This court is totally not persuaded to support the order assailed. The order suffers infirmities of the fundamental implications. There is no bar in Narcotic Drugs and Psychotropic Substances Act, 1982 to release any vehicle, which on seized in the course of detection of an offence or investigation or a trial. It is not the case of the State that any other authority, either in an Act or under the rules of N.D.P.S. Act, is empowered to pass an order of interim custody of the vehicle. It is also not the case of the State that the jurisdiction of the court to pass an order under Section 451 Cr.P.C. or 457 Cr.P.C. is barred. Therefore, it was strictly a matter to be considered by a Court whether to pass or not to pass an order under Section 451 Cr.P.C. Patently, the petitioner had pleaded that he is the R.C. owner of the lorry, he had no knowledge of the commission of such an offence by the driver, that he was prepared to abide by the terms of the court to release the lorry. It is not on record that the learned Public Prosecutor or anybody appearing for the State in the court below placed any strong materials to reject the order. The bonafides of the petitioner are not suspected either in relation to his being the R. C. owner or his undertaking that he would abide by the terms of the order. While dealing with a similar matter, the High Court of Bombay in B.S. Rawant v. Shaik Abdul Karim (1) 1989 Crl. L. J. 1998 (Bom), where the vehicle was seized under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1982 for carrying narcotic drugs, held that the provisions of the Act do not exclude the question of operation of Section 451 or Section 457, Sub-Clause (1) of the Code and the Magistrate before whom the vehicle was produced had jurisdiction to pass an order of interim custody thereof. Surprisingly, the learned additional Sessions Judge has not examined either the implications of the provisions of the N.D.P.S. Act or the implications ofSection451 Cr.P.C., muchless any case law on the question. The order of the learned Additional Sessions Judge thus cannot be allowed to sustain. Since the factual positions pleaded by the petitioner are not disputed, it was a fit case to release the vehicle, however subjectto imposing certain conditions. Since this court is not having all the facts to impose the conditions, etc., the matter is required to be remitted back to the learned Additional Sessions Judge to pass appropriate orders for release of vehicle by imposing reasonable conditions in accordance with law after hearing the petitioner and the learned Public Prosecutor or any representative of the Government, however within one week from the date of receipt of a copy of this order. The petition is allowed accordingly. No costs.