2010 P Cr. L J 1145
[Quetta]
Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ
KHAYAL MUHAMMAD ----Appellant
Versus
THE STATE ----Respondent
Criminal Appeal No.39 of 2008, decided on 15th April, 2010.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c), 32(2), proviso & S.33 ---Possessing narcotics ---Confiscation of vehicle ---
Appellant/owner of the vehicle in question was not put on notice as to why the vehicle be not
confiscated ---Proviso to S.32(2) of Contra; of Narcotic Substances Act, 199 7 had laid down
prerequisite conditions that no vehicle, vessel or other conveyance would be liable to
confiscation, unless it was proved that the owner thereof knew that the offence was being or
was to be committed; in fact knowledge was a point of fact a nd was to be adjudicated in
accordance with law in a normal procedure of dispensation of justice by putting the owner on
notice and not necessarily the accused ---No effort was made to ascertain and determine the
question that appellant knew that the offenc e was being or was to be committed ---All those
procedural pre -requisite had not been observed by the Trial Court and order had been passed
for confiscation of vehicle in question ---Requirements of S.32 or 33 of the Control of
Narcotic Substances Act, 1997 had not been followed and observed in circumstances ---In
view of illegality committed by the Trial Court, impugned order was set aside to the extent of
confiscation of vehicle, in question and matter was remanded to the Trial Court for
proceeding in accord ance with law and decision of the case.
Abdul Karim Yousafzai for Appellant.
Rauf Atta, Standing Counsel for the State.
Date of hearing: 10th March, 2010.
ORDER
GHULAM MUSTAFA MENGAL J. --- This Criminal Appeal is directed against the
judgme nt dated 26 -2-2008 passed by learned Special judge, Control of Narcotic
Substances, Lasbella at Hub, whereby Mazda Truck bearing Registration No.JX -5087
has been confiscated in favour of State.
2. Briefly stated the facts of the case are that the complai nant Jan Muhammad, Naib
Sudebar, P i s t a n Coast Guard, Uthal, on 17 -8-2007 intercepted a Mazda Truck bearing
Registration No.JX -5087, Model 1991, Engine No.S0051, Chassis No.201700, from
which 290 kilogram Charas was recovered and in this respect case was re gistered under
section 9(c) Control of Narcotic Substances Act, 1997 vide F.I.R. No.39 of 2007 dated;
17-8-2007 against the two accused Adalat Khan and Farman Ali. Resultantly the Charas
as well as the vehicle mentioned above was taken into custody. After usual investigation
of the case, the challan of the case was sent to the Court of learned Sessions
Judge/Special Judge, Control of Narcotic Substances, Lasbella at Hub, which was
registered as C.N.S. Case No.54 of 2007. After recording and concluding the e vidence
the learned trial Court vide order dated 26 -2-2008, convicted the accused persons
namely Adalat Khan and Farman Ali under section 9(c), Control of Narcotic Substances
Act, 1997 and sentenced then to suffer R.I. for 14 years each, with fine of Rs.1, 00,000
each and the vehicle in question was also confiscated in favor of State; however accused
Abdul Hameed, Abdul Ghafoor and Inayatullah were acquitted.
3. Appellant claiming himself to be the owner of the Mazda truck, during the trial filed
an appli cation under Section 516 -A, Cr.P.C. read with sections 32 and 74 of C.N.S. Act,
1997 for release of the vehicle in question on Superdari on 4 -10-2007, however, the said
application was dismissed by the trial Court vide Order dated 26 -12-2007 for non -
prosec ution.
4. Feeling aggrieved from the confiscation order dated 26 -2-2008, the appellant has
filed the instant appeal.
5. We have heard Mr. Abdul Karim Khan Yousufzai, Advocate, learned counsel for the
appellant and Mr. Rauf Atta, Standing Counsel repres enting the State.
6. On perusal of the record and proceedings, which is available on record, it appears
from the impugned order that the owner of the truck was not put on notice as to why the
truck be not confiscated. No doubt during the trial the appell ant had approached the trial
Court for release of the truck, but even then requirements of section 33 of the Control of
Narcotic Substances Act, 1997 were not observed by the trial Court. It may be observed
that disposal of the articles connected with narc otics is dealt with under section 32 of
the Control of Narcotic Substances Act, 1997, which in its proviso lays down a
prerequisite condition that no vehicle, vessel or other conveyance shall be liable to
confiscation unless it is proved that the owner the reof knew that the offence was being,
or was to be, committed. In fact knowledge is a point of fact and is to be adjudicated in
accordance with law in a normal procedure of dispensation of justice by putting the
owner on notice and not necessarily the accu sed. But record of the case is absolutely
silent that any effort was made to ascertain and determine the question that the applicant
knew that the offence was being or was to be committed. All these procedural pre -
requisite have not been observed by the le arned trial Court and the order has been
passed for confiscation of the vehicle in question. It is true that the power to confiscate
a vehicle is laid down in the aforesaid subsection (2) of the C.N.S. Act but the learned
trial Court while passing the impu gned order has wholly ignored the proviso appearing
soon after the above subsection (2) of the said Act. Subsection (2) and the proviso are
reproduced hereinbelow; ---
"(2) Any narcotic drug, psychotropic substance or controlled substance lawfully
importe d, transported, manufactured, possessed, or sold along with, or in
addition to, any narcotic drug, psychotropic substance or controlled substance
which is liable to confiscation under subsection (1) and the receptacles or
packages, and the vehicles, vessel s and other conveyances used in carrying such
drugs and substances shall likewise be liable to confiscation.
Provided that, no vehicle, vessel or other conveyance shall be liable to confiscation
unless it is proved that the owner thereof know that the o ffence was being, or was to
be or was likely to be committed."
7. The above proviso permits confiscation of the vehicle only when it is proved that the
owner has knowledge that the offence was being committed and at least a notice in this
respect has to be issued to the owner. It cannot be said that the requirement of section 32 or
section 33 have been followed and observed in this case.
8. Keeping in view the illegality committed by the trial Court, we are inclined to accept the
appeal and set aside the impugned order to the extent of confiscation of Mazda Truck No.JX -
5087 and this part of the matter is remanded to the trial Court for proceedings in accordance
with law and decision of the case, thus the appeal is accordingly disposed of.
H.B.T./25/Q Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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