2008 Y L R 1767_Lahore High Court allowed superdari

2008 Y L R 1767

[Lahore]

Before Fazal-e-Miran Chauhan and Khurshid Anwar Bhinder, JJ

ABID LATIF---Appellant

Versus

THE STATE---Respondent

Crl. Appeal No.1 of 2008, decided on 31st March, 2008.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 26, 33(2) & 74---Seizure and custody of vehicle---Principles---For the purposes of application of S.74 of Control of Narcotic Substances Act, 1997, there has to be a lawful seizure of the vehicle in issue---Vehicle can be seized under Control of Narcotic Substances Act, 1997, only in three situations, i.e. firstly where it is carrying unlawful narcotics along with some lawful narcotics, secondly, where it is a part of assets derived from narcotics offences and, thirdly where narcotics have been recovered from its secret chambers, cavities or compartments---Control of Narcotic Substances Act, 1997, is a special law and its provisions have to be construed strictly---If such law itself does not provide for seizure of a vehicle in all other situations except those found and specified by High Court, then seizure of vehicle in all other situations may not only be illegal but also unnecessary and vexatious attracting prosecution and punishment of concerned officer under S.26 of Control of Narcotic Substances Act, 1997.

(b) Control of Narcotic Substances Act (XXV of 1997)---

---Ss. 33(2), 48 & 74---Appeal---Custody of vehicle---Narcotics was recovered from physical possession of accused who was travelling in the vehicle owned by appellant and was being driven by brother of appellant---Appellant sought custody of vehicle on Superdari but it was refused by Trial court---Validity---Appellant's vehicle could not lawfully have been seized by the officer upon recovery of narcotics from physical possession of the accused, as such the vehicle was not being used for transporting the recovered narcotics---Seizure of vehicle was not only unnecessary but also unwarranted under Control of Narcotic Substances Act, 1997---Trial Court was not justified in dismissing appellant's application seeking Superdari of the vehicle---High Court, in exercise of appellate jurisdiction, set aside the order passed by Trial Court and application submitted by appellant seeking Superdari of vehicle was accepted---High Court directed the Trial Court to pass appropriate order for releasing the vehicle on Superdari of appellant---Appeal was allowed in circumstances.

Javed Hayat and another v. The State PLD 2006 Lah. 167 ref.

Umer Sharif for the Appellant.

A.D. Naseem, Special Prosecutor for ANF.


ORDER

By filing the instant appeal, the appellant has prayed for Superdari of vehicle No.LZZ/1898, which was seized by the police in case vide F.I.R. No.8, dated 10-4-2007 under sections 9(c)/15 of the Control of Narcotic Substances Act, 1997, registered with Police Station, ANF, Faisalabad:

2. Briefly, the facts of the case are that, vehicle/car bearing No.LZZ/1898 is jointly owned by the appellant, as well as, United Bank Limited, Faisalabad and the owners of the vehicle have no concern with the alleged commission of offence nor they are named in the F.I.R. On 3-5-2007 United Bank Limited, Faisalabad issued N.O.C. in favour of the appellant to get the above said vehicle on Superdari on the basis of which, the appellant moved his first application for Superdari of the said vehicle, but the same was dismissed by the learned Judge, Special Court, C.N.S., Lahore camp at Faisalabad; subsequently, Zahid Latif, brother of the appellant and accused of the above said F.I.R. was released on bail by this Court. Thereafter, the appellant again filed an application for custody of the vehicle, but the same was turned down by the same learned trial Court, vide impugned order, dated 4-12-2007 hence this appeal.

3. It is argued by learned counsel for the appellant that the impugned order dated 4-12-2007 passed by the learned Judge, Special Court C.N.S., Lahore camp at Faisalabad is against law and facts of the case. Accused of the F.I.R. has been bailed out by this Court on the ground of valid license to carry and sell the drugs, therefore, the bar contained in section 74 of the Control of Narcotic Substances Act, 1997 is not strictly applicable on Superdari of vehicle. The seized vehicle is registered in the name of the appellant. Further states that; neither the appellant was nominated in the F.I.R. nor was present in the vehicle at the time of its seizure. Accused Zahid Latif has no concern whatsoever with the said vehicle. The vehicle has been seized on 10-4-2007 and ten months have been lapsed and in such a situation, the vehicle is deteriorating day by day, therefore, custody of the seized vehicle be given to the appellant. The appellant has constitutional protection of his property rights under Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel has placed reliance on Javed Hayat and another v. The State PLD 2006 Lah. 167.

4. Conversely, learned Special Prosecutor for ANF has opposed this appeal.

5. We have heard the learned counsel for the parties and have gone through the relevant record with their able assistance. The appellant, as well as, United Bank Limited, Faisalabad are the undisputed joint owners of the vehicle, as is evident from the registration book and the Bank issued N.O.C. in favour of the appellant to get the vehicle on the Superdari. The appellant was not accused in the criminal case and nothing had been recovered from his possession in the said case. Furthermore, nothing was available on the record to show that, the owner had any knowledge that, the accused (brother of the appellant) would use his vehicle for any illegal activity. In the prevailing circumstances of the case, the vehicle could not have been seized by the police, as the same was not . a case-property no useful purpose would be served by allowing the said vehicle to remain in custody of the police, as in such a situation, the condition of the vehicle would deteriorate and, therefore, the learned Judge, Special Court C.N.S. was not justified in refusing to grant Superdari of the said vehicle to the appellant.

As against that, the learned Special Prosecutor for ANF has argued that; the vehicle in issue had been used for transporting of narcotics and, therefore, by virtue of the provisions of section 74 of he Control of Narcotic Substances Act, 1997, the same cannot be given on Superdari to any person at all till the conclusion of the case and after conclusion of the case, the said vehicle would be liable to confiscation under section 32 ibid. He has, therefore, maintained that, this appeal is misconceived and is liable to be dismissed.

6. We turn to the provisions of section 74 of the Control of Narcotic Substances Act, 1997, in order to find out the true import and scope of the same vis-a-vis giving of custody of a vehicle seized in connection with recovery of narcotics. According to section 74 "the custody of narcotic drugs, psychotropic substances, controlled substances, any material or utensils used for production of manufacture of such drugs or substances or any conveyance used in import, export, transport or transshipment thereof or for commission of an offence under this Act shall not be given on custody to the accused or any of his associate or relative or any private individual till the conclusion of the case, except as provided in the second proviso to subsection (2) of section 33". This section presupposes that, custody of a vehicle has already been lawfully taken or in other words such a vehicle has already been lawfully seized in connection with a criminal case registered in respect of recovery of narcotics. Thus, for the purposes of application of the provisions of this section, there has to be a lawful seizure of the vehicle in issue. A vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. firstly, where it is carrying lawful narcotics along with some lawful narcotics, secondly, where it is a part of the assets derived from narcotics offences and, thirdly; where narcotics have been recovered from its secret chambers, cavities or compartments etc. The second situation may not be relevant for the present purposes, as forfeiture of assets and seizure and confiscation thereof for that purpose come about after conclusion of the case and, thus, there is hardly any question of custody of Superdari involved in such a situation.

7. The Control of Narcotic Substances Act, 1997 is a special law and its provisions have to be construed strictly and if such law itself does not provide for seizure of a vehicle in all other situations except those found and specified by us above, then seizure of a vehicle in all other situations may not only be illegal but also unnecessary or vexatious attracting prosecution and punishment of the concerned officer under section 26 of the Control of Narcotic Substances Act, 1997.

8. The appellants, in the present case, claim to be joint owners of the seized vehicle and their claim in that regard upon a Registration Book has not been controverted or contested by anybody so far. Apart from the appellant, nobody else has asked for Superdari of the seized vehicle till date. Admittedly, the appellant is not accused in the relevant criminal case and nothing had been recovered from his possession in the said case. There is nothing available on the record showing that, the appellant had any knowledge that, the accused would use his vehicle for committing any offence relating to narcotics. It is also not disputed that, the narcotic substance recovered from the accused was allegedly recovered from his brother namely Zahid Latif. In these circumstances, the appellant's vehicle being driven by brother of the appellant, could not lawfully have been seized by the relevant officer upon recovery of narcotics from physical possession of that accused persons. Even otherwise, the said vehicle was not being used for transporting the recovered narcotics. In this view of the matter, seizure of the vehicle has appeared to us to be not only unnecessary but also unwarranted under the Control of Narcotic Substances Act, 1997 was thus inapplicable to the case in hand and the learned Judge, Special Court C.N.S., Lahore, Camp at Faisalabad was not justified in dismissing the appellant's application seeking Superdari of the said vehicle.

9. Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973 enshrine a Fundamental Right entitling an owner of a property to hold and enjoy his property as long as he does not infringe any law regarding the same and Article 4 of the Constitution categorically mandates that "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law". If the vehicle seized in the present case belongs to the appellant and if the same had been seized in a situation and in circumstances, which did not warrant such seizure under the Control of Narcotic Substances Act, 1997, then the appellant appear to have every right to reclaim its possession as he had been deprived of the same otherwise than in accordance with law.

10. For the foregoing reasons, this appeal is allowed, the impugned order passed by the learned Judge, Special Court C.N.S., Lahore, camp at Faisalabad on 4-12-2007 is set aside, the application submitted by the appellant seeking Superdari of Vehicle No.LZZ/1898 is accepted and the learned Judge, Special Court C.N.S., Lahore, camp at Faisalabad is directed to pass an appropriate order releasing the said vehicle on Superdari of the appellant upon suitable terms.

M.H./A-23/L                                                                                       Appeal allowed.