2010 SCMR 1181, Supreme Court Allowed Superdari

2010 SCMR 1181

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmad and Jawwad S. Khawaja, JJ

ALLAH DITTA----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.461 of 2009, decided on 12th February, 2010.

(On appeal from the judgment of Lahore High Court Lahore dated 3-6-2009 passed in Criminal Appeal No.674 of 2009).

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

----S. 74, Proviso---`Any private individual'---Meaning and scope ---Phrase "any private individual" is to be read ejusdem generis with the preceding specific words, "accused, or his associate or relative' ---By application of the rule the "private individual" mentioned in the proviso refers to such an `individual who has some nexus with the offender or the offence-I-Innocent owner of the vehicle used in the commission of the crime having no nexus whatsoever, either with the accused or the crime, would not fall within the scope of the phrase "private individual".

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

----Ss.74 & 9(c)---Criminal Procedure Code (V of 1898), S.516-A---Constitution of Pakistan (1973), Act.185(3)---Possession of narcotics---Release of the vehicle on "Superdari" ---Proviso of S.74 of the Control of Narcotic Substances Act, 1997, did not prohibit the release of the vehicle involved in the trafficking of narcotics to its owner, who was not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime---Record did not show that the petitioner was aware that his vehicle was used for the transportation of "Charas "---Documents produced by the petitioner before the Courts below showed that his car was leased to a firm of "Rent a Car", which had rented it out to the accused---In the absence of any rebuttal by the prosecution of these documents, findings of High Court that the same might have been fabricated, could not be agreed ---No rival claimant of the vehicle came forward---Petitioner was entitled to the temporary custody of the vehicle, which was ordered to be released to him on "Superdari" in circumstances.

Abdul Salam v. The State 2003 SCMR 246; The State v. Rashid PLD 2003 Pesh. 870 and Askari Leasing limited v. The State 2004 PCr.LJ 755 ref.

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

----S. 74, Proviso---Scope---Proviso of S.74 of the Control of Narcotic Substances Act, 1997, does not prohibit the release of vehicle involved in the trafficking of narcotics to its owners, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime.

Abdul Salam v. The State 2003 SCMR 246 ref.

Saeedul Haq Butt, Advocate Supreme Court for Petitioner.

Syed Ali Imran Shah, D.P.-G. and Ashraf, S.-I. Police Station Mureedkay for the State.

Date of hearing: 12th February, 2010.


JUDGMENT

NASIR-UL-MULK, J.--- The question involved in this petition for leave to appeal is the grant of temporary custody of vehicle to its owner seized under the Control of Narcotic Substances Act, 1997 for carrying narcotics.

2. The vehicle in the present case is a motorcar from which 20 Kgs. of `Charas' was recovered on 3-3-2009 and the two occupants of the vehicle, Abid Ali and Muhammad Asif were arrested and a case under the Control of Narcotic Substances Act, 1997 (hereinafter referred as to the Act) registered against them. The petitioner, Allah Ditta, claiming to be the owner of the vehicle applied to the Judicial Magistrate for the release of the vehicle, pleading that he had given the same to `rent a car' firm by the name of Ali and Ahmed Rent A Car for renting it out. That one of the accused, Abid Ali, had hired the car from the said firm on the day the narcotic was recovered from it. With the application submitted to the Magistrate, the petitioner appended a copy of the motor registration certificate, showing his ownership of the vehicle and a receipt from the Rent A Car firm. These documents were rejected by the High Court on the ground that they may have been fabricated.

3. Mr. Saeedul Haq Butt, Advocate Supreme Court, appeared for the petitioner and Syed Ali Imran Shah, Deputy Prosecutor-General, for the State. In view of interpretation of section 74 of the Act, in the light of the proviso to section 32 of the Act, we had requested Barrister Sulman Akram Raja, Advocate Supreme Court to assist us as Amicus Curaie.

4. The learned counsel for the petitioner contended that the petitioner is the undisputed owner of the vehicle and that there is nothing on record to show that the petitioner was either involved in the drug trafficking or was aware that the vehicle was used for such purpose. That the receipt issued by Ali and Ahmed Rent A Car is, prima facie, evidence that vehicle was rented out by the said firm one of the accused. That the High Court had erred in doubting the genuineness of the said bill without further probing into its authenticity. The learned counsel for the petitioner submitted that section 74 of the Act which regulates the grant of temporary custody of the conveyance seized in narcotics case does not prohibit its release to the owner not in any way connected with the crime. To substantiate his contentions, the learned counsel relied upon Abdul Salam v. The State 2003 SCMR 246, The State v. Rashid PLD 2003 Pesh. 87, Askari Leasing Limited v. The State 2004 PCr.LJ 755.

5. Barrister Sulman Akram Raja, the learned amicus curaie, referring to subsection (2) of section 32 of the Act, submitted that the proviso to the section creating a bar against the release of a conveyance used in transporting narcotics is restricted to the accused and his associates or relatives and does not apparently include an innocent owner of the vehicle not in any manner linked with the commission of the crime. He argued that for the purpose of grant of temporary custody under section 74 of the Act pending disposal of the trial, guidance can be sought from the proviso to subsection (2) of section 32 of the Act, which prohibits the confiscation of a vehicle used for transporting narcotics unless owner thereof was aware that his vehicle was being put to such use. While advancing arguments on this proviso, the learned counsel pointed out that if the owner was aware that his vehicle was being used for narcotics, its owner perhaps would also be tried as an accused in the case. The learned counsel brought to our notice another interesting proposition with reference to Article 24 of the Constitution, though not directly involved in the present case, that if the owner of the vehicle is deprived, justifiably or unjustifiably, of the use of his vehicle temporarily on account of its being detained as case property he should be entitled to be adequately compensated for the period of such detention.

6. Before adverting to the arguments advanced at the bar, it will be appropriate to refer to the two relevant provisions of the Control of Narcotic Substances Act, 1997, namely, the proviso of section 74 of the Act, dealing with the temporary custody and section 32 that provides for confiscation or otherwise of such vehicle at the conclusion of the trial.

"S.74. Application of other laws.--- If an offence punishable under this Act, is also an offence in any other for the time being in force, nothing in that shall prevent the offender from being punished under this Act:

Provided that nothing contained in section 523 of the Code of Criminal Procedure 1898 (Act of 1898), or any other provisions of the said Code or any other law for time being in force, the custody of narcotic production or manufacture of such drugs or substances or any conveyance 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."

"S.32. Articles connected with narcotics.---(1) Whenever an 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 committed shall be liable to confiscation;

(2) Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold alongwith, 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 conveyance 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 knew that the offence was being, or was to be, committed.

7. Two provisions of the Act deal with disposal of conveyance used in the commission of the crime under the Act. Section 32 provides for the final disposal of the conveyance at the conclusion of the trial, while proviso of section 74 of the Act' makes provision for grant of temporary custody of the vehicle pending trial. The present case involves the interpretation of the latte statutory proviso. Section 74 is not a very happily worded provision and the proviso to the section which deals with temporary custody of vehicles involved in trafficking narcotics has no nexus with the main provision of the section which provides for punishment of the offender for an offence under the Act in addition to punishment under other statutes. Having said that, the proviso, relating to temporary custody of the conveyance involved in commission of the crime is couched in negative terms, prohibiting `custody to the accused or any of his associate or relative or any other private individual...." It follows that the prohibition is neither absolute nor all embracing. Custody of such a conveyance can be granted to those who do not fall within the said prohibitory. Identifying "accused, or his associate or relative" would not ordinarily pose much difficulty. The question that requires determination is whether the owner of the conveyance, who, otherwise, does not fall in the said class of persons, would come within mischief of the phrase "any private individual". The legislature could not have intended that the said phrase should have such an unrestricted wide scope so as to include every individual, as such a construction would render meaningless reference to specific persons preceding the phrase. That part of the proviso would thus become redundant. Obviously redundancy cannot be attributed to the legislature. Thus the only rational meaning to give to the phrase `any private individual' is to read it ejusdem generis with the preceding specific words, "accused, or his associate or relative". By application of this rule the `private individual' mentioned in the proviso refers to such an individual, who has some nexus with the offender or the offence. Thus. an innocent owner of the vehicle, used in the commission of the crime, having no nexus, whatsoever, either with the accused or the crime would not fall within the scope of the phrase `private individual'.

8. The proviso of section 32 of the Act, which deals with disposal of the conveyance used in commission of the crime at the conclusion of the trial, also provides a useful tip in interpreting the proviso of section 74 of the Act. Section 32 empowers the trial Court to order confiscation of the vehicle used in trafficking of narcotics, with a proviso that the vehicle shall not be confiscated unless it is proved that the owner was aware that his vehicle was being used in the crime. Not only that an innocent owner of the vehicle is entitled to the return of the vehicle but the burden has been placed on the prosecution to establish that the owner had the knowledge of his vehicle being used in the crime. Thus, if an innocent owner of vehicle unaware of the crime is entitled to its return at the conclusion of the trial, as corollary, in the absence of express statutory prohibition, he shall also have the right to obtain and retain its temporary custody pending trial Abdul Salam v. The State (supra).

9. We, thus, conclude that the proviso of section 74 does not prohibit the release of the vehicle involved in the trafficking of narcotics to its owner, who is not connected in any way with the commission of the crime or the accused and was unaware that his vehicle was being used for the crime.

10. As regards the merits of the case, we have found that there is nothing on record to show that the petitioner was aware that his vehicle was used for the transportation of "Charas". The petitioner had produced documents before the Courts that his car was leased to a Firm of `Rent a Car', which had rented it out to the accused. In the absence of any rebuttal by the prosecution of these documents, we do not agree with the findings of the High Court that the same may have been fabricated. We have also noted that there is no rival claimant of the vehicle. In these circumstances, the petitioner was entitled to the temporary custody of the vehicle. Thus by short order of this Court dated 12-2-2010, the petition was converted into appeal and allowed. The impugned judgment of the High Court was set aside and the vehicle was ordered to be released to the petitioner upon furnishing of bonds with two sureties in the sum Rs.5,00,000/- each to the satisfaction of the trial Court.

N.H.Q. /A-24/SC                                                                        Petition allowed.