G.S. Solanki, J.@mdashThe appeal has been preferred by the Appellant u/s 454 of Code of Criminal Procedure being aggrieved by judgment dated 25.6.2008 passed by the Special Judge (NDPS) Act, Bhopal in Special Case No. 38/2001.
2. The prosecution''s case in short is that on 19.7.2001 at about 22:40 PM, Chandra Shekhar (PW-1), Sub Inspector of Police received a secret information that tenant of House No. 204, Siddharth Complex, Bhopal is in possession of psychotropic substance and is likely to abscond. On the basis of the aforesaid information, Sub Inspector apprised his superior officer Sanjay Singh, CSP, completed other formalities and conducted search of aforesaid House No. 204, Siddharth Complex where Appellant Ravi Kumar @ Anna @ Ravindram @ Udayan, @ Uday Kumar was living as tenant. During the search, a black bag containing 250 gm contraband article (Ganja) was seized and a briefcase containing a mobile phone and currency notes of Rs. 18,30,630/-was also seized. It has been further alleged that on the basis of information given by this Appellant, office of co-accused Manoj Parekh was also searched and 12 gm brown sugar was seized from there.
3. After usual investigation, Appellant was charge sheeted before the Special Judge, (NDPS Act), Bhopal. The Special Judge framed charges u/s 8(c) read with Section 20(a), 8(c) read with Section 29 and 27(a) of NDPS Act against the Appellant.
4. The Appellant abjured the guilt and pleaded that he has been falsely implicated in the case. He further pleaded that currency note found in the briefcase is the hard-earned money of the Appellant and he came to Bhopal with the aforesaid money with a view to set up a new furniture business.
5. On appraisal of evidence on record, learned Special Judge, acquitted the Appellant from the charges levelled against him but after parting with the judgment at the time of disposal of property, passed order of confiscation of seized currency notes of Rs. 18,30,630/-under Section 63 of NDPS Act. Being aggrieved by the same, the instant appeal has been preferred by the Appellant.
6. Learned Counsel for the Appellant has submitted that trial Court erred in passing the order of confiscation of currency notes of Rs. 18,30,630/-. He has further submitted that the order of confiscation u/s 63 can only be passed where the property seized is liable for confiscation u/s 60, 61 and 62 of the NDPS Act. The case of the Appellant does not fall u/s 60, 61 or 62 of the NDPS Act, hence order of confiscation passed by the trial Court be set aside.
7. Learned Counsel for the State has justified the findings and supported the judgment passed by the trial Court.
8. I have perused the impugned judgment dated 25.6.2008, evidence and other material on record. Section 63 of the NDPS Act reads thus:
63. Procedure in making confiscations.-(1 In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation u/s 60 or Section 61 or Section 62 and, if it decided that the article is so liable, it may order confiscation accordingly.
A bare reading of this section provides that whether the accused is convicted or acquitted or discharged still the Court has the power to confiscate provided the matter falls u/s 60, 61 or 62 of the said Act. In the facts and circumstances of the case in hand, it is to be seen whether case of the Appellant is covered either under Sections 60, 61 or 62 and if not why should his money be not released. On perusal of Para 40 of the judgment passed by the trial Court, it reveals that trial Judge himself held that prosecution has failed to prove the fact that Rs. 18,30,630/-was earned through indulging in financing, directly or indirectly, any of the activities mentioned in Section 2(viiia) of the Act.
9. Section 62 of NDPS Act reads thus:
62. Confiscation of sale proceeds of illicit drugs or substances.-Where any narcotic drug, psychotropic substance or controlled substance is sold by a person having knowledge or reason to believe that the drug or substance is liable to confiscation under this Act the sale proceeds thereof shall also be liable to confiscation.
10. When it is not proved that seized currency notes are sale proceeds of psychotropic substances, then only on the basis of conjectures and surmises, currency notes cannot be said to be the property earned through Havala and cannot be said to be liable to be confiscated.
11. In these circumstances, in my opinion, the trial Court committed illegality in passing the order of confiscation, which cannot be said to be sustainable in the eyes of law.
Thus, the appeal is partly allowed. Order of confiscation passed by the trial Court is set aside. Trial Court is directed to release the seized currency notes in favour of Appellant subject to filing clearance certificate under the provisions of Income Tax Act applicable to the case of the Appellant.
