NDPS Act | Vehicle Piloting Another Vehicle Carrying Contraband Is Not Vehicle Used As Conveyance; Cannot Be Confiscated: Kerala High Court

The Kerala High Court recently considered the question as to whether a vehicle piloting or accompanying another vehicle, which is transporting Narcotic Drug and Psychotropic Substances could be held as vehicle used as conveyance in carrying the contraband so as to confiscate the same under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), and answered the same in the negative. 

The Single Judge Bench of Justice A. Badharudeen observed that to hold that the vehicle accompanying or piloting another vehicle carrying the contraband, also as a vehicle carrying the contraband, and to treat the same also as conveyance is beyond the statutory intent of Section 60(3) of NDPS Act. 

"...when the statute says an animal or conveyance used in carrying any narcotic drugs or psychotropic substances alone is subject matter of confiscation, the horizon of the legislative intent cannot be extended to a wider magnitude to hold that the vehicle piloting or accompanying another vehicle, which carried the contraband also as one carrying the contraband. Therefore, the vehicle piloting or accompanying another vehicle transporting Narcotic Drug and Psychotropic Substances cannot be held as vehicle used as conveyance in carrying the contraband and the said vehicle is not a subject matter of confiscation under Section 52-A of the NDPS Act". 

The prosecution case was that the 4 accused persons in the case had brought 154.3 Kg ganja from outside the State, pursuant to the conspiracy hatched between themselves. The 3rd accused person also rented a tempo van from its RC owner, where the Ganja was kept in special racks inside the van and transported to Kerala. It was alleged that while the first and second accused persons were transporting the item in the said vehicle, the third and fourth accused persons had given the vehicle pilot by following in another car. All four accused persons were arrested. The tempo van and the contraband were seized, and the pilot car was also taken into custody. 

When the petitioner, who is also the RC owner of the pilot car submitted an application before the Drugs Disposal Committee, claiming that the vehicle had no involvement in the crime by contenting that the prosecution records would not justify transport of contraband in the said vehicle, the same was rejected by the Committee, vide an order. It is in this context that the petitioner filed the instant petition for release of the car. 

It was contended by Advocates R. Rohith and Harishma P. Thampi on behalf of the petitioner that as per Section 60(3) of the NDPS Act, conveyance or vehicle used in carrying any narcotic drugs and psychotropic substances shall alone be liable to be confiscated, and that as per the facts of this case, there was no case that the contraband was carried in the car piloting the van, and that the same had been used as conveyance to carry the contraband.

On the other hand, it was contended by the Public Prosecutor Renjit George on behalf of the respondents that as per Section 52-A of the NDPS Act, stipulating the disposal of seized narcotic drugs and psychotropic substances, the pilot car would also be a subject matter of confiscation. He pointed out that when a vehicle is seized while piloting a vehicle that is carrying the contraband, the same amounts to 'conveying the contraband', and hence, would come within the purview of Section 60(3) of the NDPS Act and be a subject matter of confiscation. The Public Prosecutor also relied on Section 63 of the NDPS Act, to content that it is for the Court to decide whether the article or things seized under the Act is liable to confiscation under Section 60 or 61 or 62 in the case of trial of offences under the NDPS Act, whether the accused has been convicted or acquitted or discharged. 

The Court in this case noted that as per the prosecution records and the report of the Investigating Officer, it was clear that initially the vehicle which carried the contraband and the first two accused persons had been arrested. It was subsequent to this that the 3rd and 4th accused persons who were alleged to have piloted the said vehicle by moving in front of the said vehicle were arrested and the vehicle was also taken into custody. 

It perused Section 60 of the NDPS Act, and ascertained that the car could not be held as a conveyance used in carrying any narcotic drug or psychotropic substances under sub-section (3). The Court thus set aside the order of the Drug Disposal Committee, and directed the vehicle to be produced before the Special Court, Thrissur, within ten days from the date of receipt of copy of the judgment. 

The following conditions were also imposed by the Court:

i. The car shall be released to the petitioner on production of original RC Book and Insurance Certificate for verification before the Special Court along with its attested copies and photographs showing its number on the front side and rear side, after serving copies of the same to the Public prosecutor also; 

ii. After being satisfied with the ownership of the car, the Special Court shall release the same to the petitioner on executing bond for Rs.3,00,000/- by the petitioner with two solvent sureties, each for the like amount to the satisfaction of the Court below, undertaking to produce the vehicle before the Court, as and when directed; and 

iii. The petitioner shall also file an affidavit stating that, the vehicle shall not be sold or encumbered without the prior permission of the Special Court or till disposal of the case. 

The Court further clarified in this regard that the release of the vehicle would not however, absolve the criminal liability of the third and fourth accused persons. 

Case Title: Firozalavi T.V. v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 40

Click Here To Read/Download The Judgment