2023 Y L R 1200
[Balochistan]
Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ
ABDUL GHAFFAR--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 407 of 2021, decided on 30th August, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 32---Articles connected with narcotics ---Scope ---Section 32 of Control of Narcotic
Substances Act, 1997, clearly manifests that whenever an offence has been committed under
the Act, the intoxicant, utensils, etc. in respect or by means of w hich the offence has been
committed shall be liable to confiscation along with receptacles or packages and vehicle, vessel or other conveyance used to carry the same ---Article or vehicle used to prepare or
transport narcotics has to be confiscated.
Amjad Khan v. The State PLD 2020 SC 299 rel.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 32 ---Balochistan Motor Vehicles Ordinance (XIX of 1965), S. 2(24) ---Articles
connected with narcotics ---Release of vehicle to owner ---Scope ---Mandatory r equirement of
law is that the person claiming release, must be the recorded owner of the vehicle, whereas, subsection (24) of S. 2 of the Balochistan Motor Vehicles Ordinance, 1965, also defines the word 'owner' as a person in whose name the vehicle is reg istered.
Khalil Ahmed Panezai, Asif Khilji, Abdul Sattar Sherani and Abdul Ghani Sherani for
Appellant.
Abdul Zahir Kakar, Deputy Attorney General for the State.
Date of hearing: 23rd August 2022.
JUDGMENT
IQBAL AHMED KASI, J. --- Through the instant appeal under Section 48 of the
Control of Narcotic Substances, Act, 1997, appellant Abdul Ghaffar, has challenged the validity of the judgment dated 31st August, 2021 ('the impugned judgment) passed by the Special Judge, CNS/Additional Sessions Judge, Utha l ('the trial Court') only to the extent of
confiscation of vehicle i.e. Container Mercedes Benz, Registration No.TKG -162 ('the vehicle
in question').
2. The facts of the case arising out of the instant appeal are that on 18th January, 2021,
on the report of complainant Sobedar Aziz Ali, FIR No.06 of 2021, was registered with
Pakistan Coast Guards Uthal, under Section 9(c) of the Act of 1997, with the averments that
during duty at Naka Kharadi Check Post, at about 09:50 O'clock, they stopped a Contai ner
Mercedes Benz, Registration No.TKG -162 coming from Winder side, which was being
driven by accused Noor Ali. On conducting search, 45.5 kilograms charas, containing 40 packets were recovered from internal backside two wheels of the vehicle. The appellant was arrested and the vehicle and contraband material were seized.
3. Learned counsel for the appellant, contended that the appellant is the lawful owner of
the vehicle in question and the same is the only source of income of the appellant and his entire family member. He further stated that there is nothing on file to show that the vehicle
in question was used in the commission of offence, with the knowledge of the appellant. He further submitted that the appellant is owner of the vehicle and there is no other rival claimant of the same, thus, the vehicle in question may be released in his favour.
4. On the other hand learned DAG, opposed the contention of the learned counsel for the
appellant and stated that in the cases registered under Section 9(c) of t he Act of 1997,
Section 32 provides for confiscation or otherwise of such vehicle at the conclusion of the trial. He further stated that the crime for transporting/ trafficking narcotic substance in the said vehicle has been proved against the accused, as such, the trial Court has rightly confiscated the said vehicle in favour of the State being used in commission of crime, thus,
the instant petition having no merit is liable to be dismissed.
5. We have heard the learned counsel for the parties and have gon e through the record,
which reveals that the appellant has challenged the impugned judgment only to the extent of
confiscation of the vehicle, Container Mercedes Benz, Registration No.TKG -162. In the
present case, the appellant moved the instant appeal for seeking the possession of the vehicle
in question describing himself as owner on the strength of sale/purchase deed, attested on 11th September 2018, executed between one Abdul Ghaffar and him. To determine the ownership of a vehicle, it would be appropri ate to reproduce subsection (24) of Section 2 of
the West Pakistan Motor Vehicle Ordinance, 1965, which reads as under:
"owner " means the person in whose name the Motor Vehicle is registered."
6. It is an admitted feature of the case that till date the v ehicle in question is not
registered on the name of appellant, so as par West Pakistan Motor Vehicle Ordinance, 1965, he cannot claim himself as owner of the vehicle in question.
7. At this juncture, the only question, which requires determination in the i nstant appeal,
is whether, in the peculiar circumstances of the instant case, the vehicle in question could validly be confiscated under Section 32 of the Act of 1997, or otherwise. There are two provisions of the CNS Act i.e. Section 74, which deals with the temporary custody, whereas,
Section 32 provides for confiscation or otherwise of such vehicle at the conclusion of the
trial. It would be appropriate to reproduce Section 32 of the Act of 1997, which reads as
under:
"32. Articles connected with narcot ics. (1) Whenever any offence has been committed
which is punishable under this Act, the narcotic drug, psychotropic substance or controlled substance, materials, apparatus and utensils in respect of which, or by means of which, such offence has been commi tted shall be liable to confiscation.
(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, 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, vessels and other conveyances used in carrying such drugs and substances shall likewise be liable to confiscation:
Provided that no vehi cle, vessel or other conveyance shall be liable to confiscation
unless it is proved that the owner thereof knew that the offence was being, or was to be committed."
8. The Hon'ble Supreme Court Pakistan in case titled Amjad Khan v. The State PLD
2020 Supre me Court 299, has held as under:
"7. The word "narcotics" in the title of the section refers to narcotic drugs, psychotropic substance or controlled substance in respect of which an offence has been committed under the CNSA (hereinafter referred to as "narcotics"). Subsection (1) of section 32 provides that nay narcotics or materials, apparatus and utensils in respect of which or by means of which an offence punishable under CNSA has been
committed shall be liable to confiscation. It is pointed out that se ction 32(1) does not
refer to any conveyance including a vehicle used in the commission of the offence. Subsection (2) of section 32 deals with articles, which are connected with narcotics; These articles are (i) narcotic drug, psychotropic substance or co ntrolled substance
lawfully imported, transported, manufactured, possessed or sold (for convenience referred to as "lawful drugs and substances" as compared to "narcotics" mentioned above) along with or in addition to, any narcotics and articles like of (i i) receptacles
or packages, and the vehicle, vessels and other conveyances used in carrying such drugs and substances. Both the set of articles mentioned in (i) and (ii) above are liable to confiscation. Therefore, vehicles, vessels and other conveyances a re liable to
confiscation if they are used in carrying both narcotics or narcotics alongwith with lawful drugs and substances."
Similarly, in the referred judgment, the Hon'ble Supreme Court of Pakistan also held that:
"11. Joint reading of sections 32 and 74 of CNSA show that an applicant can seek release of a vehicle on superdari, which has been seized under CNSA and is a case property in a criminal case; if the applicant show that he is the lawful owner of the vehicle ; that he is neither the accused nor an associate or a relative of the accused or
an individual having any nexus with the accused. While the prosecution has to show that the applicant knew that the offence was being or was to be committed. See Allah Ditta. Under section 33 if the vehicle is finally held not liable to confiscation it can be
released to its owner. As a corollary, where the court can pass a final order, it can also
pass an interim order. See Abdul Salam. Therefore, a vehicle can also be releas ed as
an interim measure or temporarily on superdari under CNSA after the court is prime facie satisfied regarding the ownership of the applicant and the absence of the association of the owner with the accused and the commission of the offence. The
applic ant while asserting his ownership of the vehicle must specify in his application
for superdari how he was deprived of the vehicle, how and when he found out that his
vehicle was missing, and the legal proceedings initiated by him therefore, if any. This becomes important in the light of section 109 of MVO, which attracts criminal
liability of one drives a vehicle without the consent of the owner. On the other hand, in order to oppose the release of vehicle on superdari, the prosecution has to prima facie sh ow from the record that the owner knew that the offence was being or was to
be committed. It is underlined that it is during the trial that the prosecuting has to prove that the owner knew that the offence was being or was to be committed."
9. The above provisions of law clearly manifest that whenever an offence has been
committed under this Act, the intoxicant, utensils etc. in respect or by means of which the offence has been committed shall be liable to confiscation along with receptacles or packages
and vehicle, vessel or other conveyance used to carry the same. The plain reading of Section
32 clearly indicates that if any article or vehicle, used to prepare or transport narcotics (covered by the provision of the said Section) the same has to be confiscated.
8(sic). Coming to the merits of the case, the mandatory requirement of law is that the
person claiming release, must be the recorded owner of the vehicle, whereas, subsection (24) of Section 2 of the West Pakistan Motor Vehicle Ordinance, also defines the word 'owner' as
a person in whose name the vehicle is registered. In the case in hand, though the appellant is
posing himself to be the owner of the vehicle, but it is an admitted feature of the case that till date the vehicle in question is not on the name of the appellant in question.
Thus, in view of the above discussion, since the possibility of success of instant
appeal is not visible, as such, the same, being without merits, is dismissed.
SA/154/Bal. Appeal dismissed.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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