S. 63 NDPS Act | Confiscation Of Vehicle Not Dependent On Outcome Of Trial, Court Needs To Deal With It Separately: Punjab & Haryana HC

The Punjab & Haryana High Court has set aside the confiscation order of a vehicle allegedly involved in a case under the NDPS Act, observing that the same was passed without following the procedure under Section 63 of the Act.The Court set aside the confiscation order of alleged offending vehicle was passed along with the order of sentence wherein the owner of the vehicle was held guilty.Justice Harpreet Singh Brar said, "Section 63(1) of NDPS Act elucidates that irrespective of whether the accused is found guilty, acquitted or discharged, learned trial Court must determine whether any item or property seized under NDPS Act is subject to confiscation under Sections 60, 61 or 62 of NDPS Act separately.The process of confiscation is not contingent upon the outcome of the trial and is to be dealt by the Court independently".It said that in fact, Section 63(2) of NDPS Act goes to the extent of stating that the "Court's power to order confiscation of a vehicle is not dependent on whether its owner is prosecuted along with other accused individuals".The provision establishes that "confiscation can proceed regardless of the involvement of the owner in the trial". If the offender remains "unidentified" or "cannot be located", the Court is still empowered to investigate and determine liability, it added."Following such an inquiry, the Court may proceed with confiscation. Furthermore, as stated above, the first proviso to sub-section (2) of Section 63 of NDPS Act explicitly states that if any person asserts a legitimate claim over the seized property or item, they must be granted a hearing," said the CourtThe plain interpretation of Section 63(2) of NDPS Act is that whether or not an individual has been tried for an offence under NDPS Act, if they claim any right over the seized property, they must be afforded an opportunity to present their case before any confiscation order is issued, the judge added.The Court was hearing an application filed under Section 60 of the NDPS Act, Section 498 of BNSS read with Section 528 of BNSS for staying the confiscation of car, which has already been released on superdari by the trial Court. After hearing the submissions, the Court noted that, "main thrust of the argument advanced by learned senior counsel for the applicant-appellant is the invocation of Sections 451 & 452 of Cr.P.C in light of Section 51 of NDPS Act"The Court relied on the recent Apex Court's judgement of Bishwajit Dey Vs. The State of Assam to underscore that "the seized vehicles can be confiscated by the trial court only on conclusion of the trial when the accused is convicted or acquitted or discharged. Further, even where the Court is of the view that the vehicle is liable for confiscation, it must give an opportunity of hearing to the person who may claim any right to the seized vehicle before passing an order of confiscation."Justice Brar elucidated that a bare reading of Section 63 of NDPS Act reveals that vehicles, goods used in the illicit trafficking of narcotic substances and the sale proceeds or drug money are liable to confiscation. "Sub-section (1) and proviso to Section 63 of NDPS Act mandates that the Court must determine whether any article or thing seized under the NDPS Act is liable to confiscation under Sections 60, 61 or 62 of NDPS Act before passing an order of confiscation," the court said.The Court observed that Section 63 of NDPS Act imposes a bar on confiscation until the following conditions are satisfied:(i) No order of confiscation can we made before the expiry of one month from the date of seizure.(ii) No order can be passed without affording an opportunity of hearing to any person who may claim a right over the seized article or thing.(iii) The Court must take evidence in support of any such claim before deciding the matter. The Court concluded that there is no scope for granting custody of the vehicle under Section 452 of Cr.P.C. after conclusion of the criminal case permissible until the matter is fully examined in light of the provisions of Sections 60 & 63 of NDPS Act.In the instant case, the Court noted that the applicant-appellant was convicted by the Judge, Special Court, Bathinda, and the sentence was also passed on the same day and while pronouncing the order of sentence, confiscation of the vehicle in question was ordered. Since the criminal proceedings have concluded and the applicant-appellant has been convicted, the Court has determined that the car in question was used for transporting contraband, it added.The Court opined that the manner in which the order of confiscation was passed in this case, violates fundamental principles of natural justice.It highlighted that the applicant-appellant was not given an opportunity to be heard before the confiscation order was passed, thereby breaching the right to a fair hearing.The Court held that the confiscation was ordered on the same day, as pronouncement of conviction and sentence, without due compliance with Sections 60 & ...

S. 63 NDPS Act | Confiscation Of Vehicle Not Dependent On Outcome Of Trial, Court Needs To Deal With It Separately: Punjab & Haryana HC

Aiman J. Chishti

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