By TIOL News Service

NEW DELHI, NOV 25, 2016: AGAINST the order passed by the Special Judge, NDPS cases, the DRI has preferred the present petition before the High Court u/s 482 of the Code of Criminal Procedure for setting aside/quashing of the aforesaid impugned order.

The DRI officers had effected a seizure of 272.800 Kg of contraband substance from a three wheeler luggage carrier driven by one Bablu Ram and co-passenger Anil Kumar. The said seized contraband substance was found having presence of Methaqualone.

Subsequently, during the interrogation it was revealed by Anil Kumar that the contraband substance was handed over to him by one Parmanand @ Manu Khosla. Consequently, Manu Khosla'spremises was searched and a further recovery of 33.450 Kg of similar substance was effected. Pursuant to the disclosures made by him, a further recovery of 951.350 Kg of the similar substance was effected from a vehicle make Toyota Fortuner belonging to the respondent, i.e., Amit Kumar.

The respondentalong with Anil Kumar and Manu Khosla were subsequently arrested in this case under the NDPS Act. However, during interrogation it was found that Bablu Ram was only a driver of the three wheeler luggage carrier and was not personally involved in the commission of the offence and, therefore, he was not made a party to the seized contraband substance.

The DRI had drawn 39 samples out of the aforesaid seized substances, but none of the samples were tested positive for Methaqualone during the testing carried out in CRCL Delhi and only Ketamine Hydrochloride was detected in 30 out of the 39 samples and the remaining 9 samples were advised to be sent to CFSL Hyderabad for their characterization.

Subsequently, Manu Khosla and the present respondentwere released on bail by the lower Court.

Thereafter, the respondent moved an application seeking release of his vehicle make Toyota Fortunerand the lower court passed the impugned order dated 12.12.2013 directing that the vehicle make Toyota Fortuner be released to the respondent on superdari subject to certain conditions.

Aggrieved by the aforesaid order, the present petition has been filed.

It is submitted that the order passed by the Special Judge, NDPS cases, Saket, New Delhi, is bad in law as well as on facts. Inasmuch as the Special Judge had no jurisdiction to entertain and dispose of the application and order of release of the vehicle is without jurisdiction.

It is also submitted that the Special Judge failed to appreciate that the vehicle had been used for storage of contraband substances and has, therefore, been seized as per the provisions of the NDPS Act, 1985; that the NDPS Act being a special Act overrides the general law under the Criminal Procedure Code and there is no power conferred upon the special Court for release of the vehicle on superdari under the NDPS Act.

The DRI further submitted that the Special Judge erred in holding that the vehicle is not required for any purpose by the petitioner "at this stage" as reports in respect of 10 samples are awaited from CFSL Hyderabad. Further the investigation in the case is pending and the vehicle may be required for further investigation. The order of release of the vehicle may interfere in further investigation and it is not within the province of the lower Court to decide the matter in which investigation is being conducted or determine whether or not the vehicle would be needed for further investigation.

The respondent supported the impugned order with the assistance of case laws.

The High Court observed -

+ The whole dispute hinges around whether, the effected 951.350 Kg of contraband substance from the vehicle make Toyota Fortuner bearing registration No. DL 13CA 1800 pursuant to the disclosure made by Manu Khosla does cover under the NDPS Act, 1985? : The answer obviously is YES.

After extracting the provisions of Sections 451 and 452 and 457 Cr.P.C., 1973, the High Court added -

+ Section 451 Cr.P.C. deals with interim custody of the seized property which has been produced before the Court.

+ Section 452 Cr.P.C. deals with the disposal of the seized property after enquiry or trial in a criminal Court is concluded.

+ Section 457 Cr.P.C. applies to a situation where the property which has been seized by the police was not produced before the Court.

+ The present case pertains to one under the NDPS Act, 1985 which is a special law as compared to the general procedural law mentioned herein above. The NDPS Act, 1985 is applicable over the general law for the purposes of the present case. [P.V. Hemalatha vs. KattamkandiPuthiyaMaliackalSaheeda and Another; 2002 5 SCC 548 refers.]

Adverting to Sections 8 and 60 of the NDPS Act, 1985, the High Court added -

++ Instant is a case where recovery of 951.350 Kg of Methaqualone/Ketamine Hydrochloride was alleged to be effected from a vehicle make Toyota Fortuner bearing registration No. DL 13CA 1800, belonging to the present respondent, i.e., Amit Kumar, and releasing of the said vehicle on superdari is to be dealt as per the provisions of the NDPS Act, 1985 as the said Act being a special law.

++ The Court below while dealing with the instant case went wrong on the point that, no offence under the NDPS Act was made out, for want of inclusion of Ketamine Hydrochloride in the Schedule of the NDPS Rules, 1985. The notification of the Department of Revenue of the Ministry of Finance by Notification No.S.0.311.(E) dated 10.02.2011 declared Ketamine Hydrochloride to be a part of the schedule of the NDPS Act, thereby declaring it to be a psychotropic substance. [Union of India and Another vs. Sanjeev V. Deshpande - 2014-TIOL-68-SC-NDPS-LB refers]

Holding that the decisions relied upon by the respondent are of no help in view of the facts and circumstances of the case and for the reason that the NDPS Act is a special law and the offence committed under the said Act shall be dealt in accordance with the provisions of the special law, the petition filed by the DRI was allowed by setting aside the orders dated 12.12.2013 passed by the Special Judge, NDPS cases, Saket, New Delhi.

The respondent was directed to surrender the vehicle make Toyota Fortuner forthwith before the trial court.

The petition was disposed of accordingly.

(See 2016-TIOL-2860-HC-DEL-NDPS)