P L D 2006 Lahore 167_Lahore High Court Allowed Superdari
P L D 2006 Lahore 167
Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ
JAVED HAYAT and another---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No.3 of 2006, heard on 17th January, 2006.
(a) Control of Narcotic Substances Act (XXV of 1997)---
---Ss. 2(1), 20, 21, 22, 23, 26, 32 & 74---Superdari of seized vehicle---Analysis of Ss.2(1), 20, 21, 22, 23, 26, 32 & 74 of Control of Narcotic Substances Act, 1997---Implied situations in the context of the Control of Narcotic Substances Act, 1997 which may make permissible seizure of a vehicle or conveyance in a case of narcotics detailed---Vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person, under the general law, cannot be taken into possession by the police as case-property; there is no reason why the same principle may not be followed in cases of narcotics except those cases where the special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997---Principles.
In the context of a vehicle it is, noticed that section 2(1) of the Control of Narcotic Substances Act, 1997 manifests that a vehicle is included in the definition of a "conveyance". Section 20 of the said Act empowers a Special Court to issue a warrant of search of a conveyance "in" which narcotics may reasonably be believed to have been "kept or concealed". Section 21 deals with power of entry, search, seizure and arrest without warrant and it allows the relevant officer to enter into and search a conveyance and seize the narcotics recovered as a result of such entry and search but, significantly, it does not expressly authorize the officer to seize the conveyance. Similarly section 22 deals with powers of seizure and arrest in a public place and empowers an officer to seize the recovered narcotics but is silent about any power to seize the relevant conveyance. Section 23 specifically deals with the power to stop and search a conveyance but while authorizing an officer to stop, rummage, search and examine a conveyance it stops short of authorizing the officer to seize the same. Vexatious and unnecessary seizing of the property of any person "on the pretence of seizing or searching for" narcotics is an offence under section 26 and is punishable with imprisonment and 'fine. After conclusion of a case the recovered narcotics and the "materials, apparatus and utensils" by means of which the offence had been committed are liable to confiscation under sub-section (I) of section 32.
Subsection (2) of section 32 provides for confiscation of the "vehicles, vessels and other conveyances" but such power of confiscation is limited to only those cases where lawfully imported, transported, manufactured, possessed or sold narcotics are' mixed with unlawful narcotics and in such cases the lawful narcotics can be confiscated along with the unlawful narcotics and the receptacles, packages, vehicles, vessels and other conveyances used in carrying such narcotics can also be confiscated. There is no provision in the Control of Narcotic Substances Act, 1997 whereby a conveyance can be seized as a result of search and recovery of narcotics and, thus, Confiscation of such a conveyance is out of the question. However, subsection (2) of section 32 of the said Act is the only provision which expressly allows confiscation of a conveyance implying that a conveyance can also be seized but the said section is confined in this respect only to a particular and specified situation, i.e. where the conveyance is carrying unlawful narcotics along with lawful narcotics. Even in such cases the proviso to subsection (2) of section 32 hastens to add 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". Section 12 of the Control of Narcotic Substances Act, 1997 contains a prohibition against acquisition and possession of assets derived from narcotic offences and the word "assets" has been defined in section 2(b) of the said Act. By virtue of the provisions of section 19 of that Act the assets of a person convicted for an offence under the said Act shall, in a particular situation, stand forfeited to the Federal Government. It goes without saying that in a given case such assets may include a conveyance. A forfeiture of such a conveyance may be possible after a seizure and confiscation thereof. This is the second situation where by implication a seizure of a conveyance may be contemplated under the Control of Narcotic Substances Act, 1997. A possible third situation can also be visualized in this context and that is where the conveyance is seized because the conveyance itself is to provide proof regarding possession and recovery of narcotics. Such a seizure may be authorized by the provisions of clause (c) of subsection (1) of section 21 and also clause (a) of section 22 of the Control of Narcotic Substances Act, 1997 but in order to call the said provisions in aid for this purpose one has to equate a conveyance with an "article" as the said provisions expressly speak of an "article" which "may furnish evidence of the commission of an offence punishable under this Act". When a conveyance is used for keeping or concealing narcotics in its secret chambers, cavities or compartments, etc. then such secret chambers, cavities or compartments, etc. may become evidence which may be seen by a Court trying such a case and, thus, seizure of such a conveyance may be necessary to "furnish evidence of the commission of an offence punishable under this Act". Apart from the above mentioned three implied situations there is no other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotics.
Provisions of section 74 of the Control of Narcotic Substances Act, 1997 have to be examined in order to find out the true import and scope of the same vis-a-vis giving of interim 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 or manufacture of such drugs or substances or any conveyance used in import, export, transport or transshipment thereof or for commission of an offence under the Act shall not be given on custody to the accused or any of his associates 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 unlawful narcotics along with some lawful narcotics, secondly, where it is a part of the assets derived from narcotic 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 interim custody or superdari involved in such a situation. It is only in the first and third situations that a vehicle can be seized at the time of or as an immediate consequence of recovery of narcotics and, therefore, in no other situation a vehicle can be seized under the Control of Narcotic Substances Act, 1997 at such a stage. If in the other situations a vehicle cannot even be seized to start with then the provisions of section 74 of the Control of Narcotic Substances Act, 1997 forbidding granting of interim custody/superdari would hardly come into play. The rigors of section 74 have already been softened by the Supreme Court of Pakistan in the ease of Abdul Salam v. The State (2003 SCMR 246) and by Lahore High Court in the case of Niaz Ullah v. The State (2002 PCr.LJ 97) and a new dimension has been added by the High Court in this regard with reference to the provisions of the Control of Narcotic Substances Act, 1997 itself.
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 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.
Even under the general law a vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person cannot be taken into possession by the police as case-property. There is no reason why the same principle may not be followed in cases of narcotics except those cases where the above mentioned special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997.
Abdul Salam v. The State 2003 SCMR 246; Niaz Ullah v. The State 2002 PCr.LJ 97; Syed Razi Shah v. The State 1971 PCr.LJ 19; Mst. Khadija Begum v. Sessions Judge, Sahiwal 1986 PCr.LJ 945; Muhammad Ramzan v. The State NLR 1990 Cr.LJ 72; Syed Bahawal Shah v. The Crown PLD 1951 B.J. 57; Sheraz Elahi v. The State 1984 PCr.LJ 1935; R. v. Khan and another KLR 1984 Cr.C.183 and Humayun Azam v. Ch. Sadiq and 3 others 1999 MLD 1676 ref.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 74, 48, 2(1), 20, 21, 22, 23, 26 & 32---Superdari of the seized vehicle---Two persons, in the present case, claimed to be joint owners of the seized vehicle and their claim was based in that regard upon a Registration Book which was not controverted---Nobody else had asked for superdari of the seized vehicle till date---Owners of the vehicle were not accused persons in the relevant criminal case and nothing had been recovered from their possession in the said case---Nothing was available on record of investigation of the relevant case so far showing that the owners had any knowledge that the accused person would use their vehicle for committing any offence relating to narcotics---Law would not allow putting the onus on such person claiming the vehicle, to prove their lack of knowledge in that regard---Narcotic substance recovered from the accused person in the case was allegedly recovered from his physical possession (concealed in a plastic belt fastened by accused around his waist under his shirt) and the same had not been recovered from any secret Chamber, cavity or compartment, etc. of the vehicle that he was statedly driving---Vehicle being driven by the accused, in circumstances, could not lawfully have been seized by the relevant officer upon recovery of narcotics from physical possession of that accused---Vehicle in question was not being used for transporting the recovered narcotics and as a matter of fact, according to the prosecution's own case, the said vehicle was being used only for transporting the accused person---Seizure of the relevant vehicle was not only unnecessary but also unwarranted under the Control of Narcotic Substances Act, 1997---Bar contained in S.74 of the said Act was, thus, inapplicable to the present case and Trial Court was not justified in dismissing the application seeking superdari of the said vehicle by claimants (owners).
(c) Control of Narcotic Substances Act (XXV of 1997)---
----Preamble---Constitution of Pakistan (1973), Arts. 23, 24 & 4---Superdari of seized vehicle---Protection of property rights---Provisions of Arts. 23 & 24 of the Constitution 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 Art. 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 a case belonged to other persons 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 said other persons had a right to reclaim its possession as they had been deprived of the same otherwise than in accordance with law.
Ch. Muhammad Aslam for Appellants.
Ch. Muhammad Sharif, Special Prosecutor for the Anti-Narcotics Force assisted by Maqbool Ahmad Qureshi for the State.
Date of hearing: 17th January, 2006.
JUDGMENT
ASIF SAEED KHAN KHOSA, J.----Some laws are generally perceived as draconian but the discussion that follows would show that more often than not such laws are dreaded not because of their stringent provisions but because of their reckless misuse by the authorities concerned either deliberately or on account of sheer misunderstanding of the same.
2. The necessary facts giving rise to the present appeal are that on 4-12-2005 a police party stopped a motorcycle Yamaha 100 CC bearing Registration number FSH 8055 being driven by one Feroze Khan alias Shera in Chak No. 241/RB and after a personal search of the driver it recovered Charas weighing 1000 grams concealed in a plastic belt fastened by the said driver around his waist under his shirt. The recovered Charas and the above mentioned motorcycle were seized by the police party. On the basis. of that recovery F.I.R. No. 818 was registered at Police Station Thikriwala, District Faisalabad at 9-30 AM on 4-12-2005 in respect of an offence under section 6 read with section 9(c) of the Control of Narcotic Substances Act, 1997. Claiming to be joint and undisputed owners of the seized motorcycle and maintaining that they had no knowledge that the relevant accused person would use their motorcycle for commission of the said offence the present appellants submitted an application on 10.12.2005 seeking superdari of the same but after obtaining a report in that regard from the Station House Officer of the relevant Police Station the learned Additional Sessions Judge, Faisalabad seized of that application disposed of the same on 20.12.2005 by passing the following order:
"Report of S.H.O. has been received. As per F.I.R. vehicle sought for superdari has been used in the trafficking of narcotics which after the evidence is liable to be confiscated. At this stage nothing is on record to calculate that the petitioner has no knowledge for use of his vehicle in trafficking of narcotics. Proceedings in case are yet to be concluded. Hence I do not find the petitioners entitled for superdari of vehicle used in the trafficking of narcotics. The petition is hereby disposed of accordingly."
The appellants have assailed the said order before this Court through the present appeal.
3. We have heard the learned counsel for the parties and have gone through the relevant record of this case with their assistance. It has been argued by the learned counsel for the appellants that the appellants are the undisputed joint owners of the relevant motorcycle as is evident from the Registration Book of the same (a 'copy whereof has been appended with this appeal as Annexure-B); the said motorcycle had been borrowed from the appellants by the accused person namely Feroze Khan alias Sheri and there is nothing available on the record of this case to show that the appellants had any knowledge that their motorcycle would be used by the said accused person for any illegal activity; in the circumstances of this case the relevant motorcycle could not have been seized by the police party as the same was not a case-property; no useful purpose would be served by allowing the said motorcycle to remain in custody of the police as in such a situation the condition of the motorcycle would deteriorate; and, therefore, the learned Additional Sessions Judge, Faisalabad was not justified in refusing to grant superdari of the said motorcycle to the appellants. As against that the learned Special Prosecutor for the Anti-Narcotics Force assisted by the learned counsel for the State has argued that the motorcycle in issue had been used for transporting of narcotics and, thus, by virtue of the provisions of section 74 of the 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 motorcycle would be liable to confiscation under section 32 of the Control of Narcotic Substances Act, 1997. He has, thus, maintained that this appeal is misconceived and the same is, therefore, liable to be dismissed.
4. After hearing the learned counsel for the parties and going through the relevant record of this case with their assistance we have observed that the case in hand involves some important issues, i.e. whether a vehicle can be seized in a case of recovery of narcotics and, if so, in which circumstances can it be seized and also whether a seized vehicle can be given on superdari to any person till conclusion of the case or not? Such issues have wide implications and, therefore we have decided to attend to the relevant legal provisions in some detail.
5. The followings provisions of the Control Of Narcotic Substances Act, 1997 appear to be particularly relevant in this context and the same are, therefore reproduced here in full:
Section 2(1): " "conveyance" means a conveyance of any description whatsoever and includes an aircraft, vehicle, vessel, railways or animal."
Section 20: "Power to issue warrants.--(1) A Special Court may issue a warrant of arrest of any person against whom it has reason to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.
(2) The officer to whom a search warrant under subsection (1) is addressed shall have all the powers of an officer acting under section 21 . "
Section 21: "Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrestor search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may-
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in" the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub-section (1), the officer referred to in subsection (1) shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer."
Section 22: "Power of seizure and arrest in public place.--An officer authorized under section 21 may-
(a) seize, in any public place or in transit, any narcotic drug, psychotropic substance or controlled substance in respect of which he has reason to believe that an offence punishable under this Act has been committed, and, along with such drug, substance or any other article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug, psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him.
Explanation.- For the purpose of this section, the expression "public place" includes any public conveyance, hotel, shop or any other place intended for use by, or accessible to, the public."
Section 23: "Power to stop and search conveyance.--An officer referred to in section 21 may, if he has reason to suspect that any conveyance is, or is about to be, used for the transport of any narcotic drug, psychotropic substance or controlled substance in respect of which he suspects that any provision of this 'Act has been, or is being, or is about to be, contravened at any time, stop such conveyance or, in the case of an aircraft, compel it to land and--
(a) rummage and search the conveyance or part thereof;
(b) examine acid search any goods on or in the conveyance;
(c) if it becomes necessary to stop the conveyance, he may use all reasonable force for stopping it."
Section 26: "Punishment for vexatious entry, search, seizure or, arrest.--Any person empowered under section 20 or section 21 who--
(a) without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched any building, place, premises or conveyance;
(b) vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug, psychotropic substance, controlled substance or any other article or document relating to any offence under this Act; and
(c) vexatiously and unnecessarily detains, searches or arrests any person
shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to twenty-five thousand rupees."
Section 32: "Articles connected with narcotics.--(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 committed 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 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."
Section 74: "Application of other laws.--If an offence punishable under this Act is also an offence hi any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Act:
Provided that notwithstanding anything contained in section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898) or any other provision of the said Code or any other law for the time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material or utensils used for production or 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 sub-section (2) of section 33."
6. In the context of a vehicle we have noticed that section 2(1) of the Control of Narcotic Substances Act, 1997 manifests that a vehicle is included in the definition of a "conveyance". Section 20 of the said Act empowers a Special Court to issue a warrant of search of a conveyance "in" which narcotics may reasonably be believed to have been "kept or concealed". Section 21 deals with power of entry, search, seizure and arrest without warrant and it allows the relevant officer to enter into and search a conveyance and seize the narcotics recovered as a result of such entry and search but, significantly, it does not expressly authorize the officer to seize the conveyance. Similarly section 22 deals with powers of seizure and arrest in a public place and empowers an officer to seize the recovered narcotics but is silent about any power to seize the relevant conveyance. Section 23 specifically deals with the power to stop and search a conveyance but while authorizing an officer to stop, rummage, search and examining a conveyance it stops short of authorizing the officer to seize the same. Vexatious and unnecessary seizing of the property of any person "on the pretence of seizing or searching for" narcotics is an offence under section 26 and is punishable with imprisonment and fine. After conclusion of a case the recovered narcotics and the "materials, apparatus and utensils" by means of which the offence had been committed are liable to confiscation under sub-section (1) of section 32.
7. Subsection (2) of section 32 provides for confiscation of the "vehicles, vessels and other conveyances" but such power of confiscation is limited to only those cases where lawfully imported, transported, manufactured, possessed or sold narcotics are mixed with unlawful narcotics and in such cases the lawful narcotics can be confiscated along with the unlawful narcotics and the receptacles, packages, vehicles, vessels and other conveyances used in carrying such narcotics can also be confiscated. So far we have seen that there is no provision in the Control of Narcotic Substances Act, 1997 whereby a conveyance can be seized as a result of search and recovery of narcotics and, thus, confiscation of such a conveyance is out of the question. However, subsection (2) of section 32 of the said Act is the only provision which expressly allows confiscation of a conveyance implying that a conveyance can also be seized but the said section is confined in this respect only to a particular and specified situation, i.e. where the conveyance is carrying unlawful narcotics along with lawful narcotics. Even in such cases the proviso to subsection (2) of section 32 hastens to add 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". We may add here that section 12 of the Control of Narcotic Substances Act, 1997 contains a prohibition against acquisition and possession of assets derived from narcotic offences and the word "assets" has been defined in section 2(b) of the said Act. By virtue of the provisions of section 19 of that Act the assets of a person convicted for an offence under the said Act shall, in a particular situation, stand forfeited to the Federal Government. It goes without saying that in a given case such assets may include a conveyance. A forfeiture of such a conveyance may be possible after a seizure and confiscation thereof. This is the second situation whereby implication a seizure of a conveyance may be contemplated under the Control of Narcotic Substances Act, 1997. A possible third situation can also be visualized by us in this context and that is where the conveyance is seized because the conveyance itself is to provide proof regarding possession and recovery of narcotics. Such a seizure may be authorized by the provisions of clause (c) of subsection (1) of section 21 and also clause (a) of section 22 of the Control of Narcotic Substances Act, 1997 but in order to call the said provisions in aid for this purpose we would have to equate a conveyance with an "article" as the said provisions expressly speak of an "article" which "may furnish evidence of the commission of an offence punishable under this Act". We may observe in this context that when a conveyance is used for keeping or concealing narcotics in its secret chambers, cavities or compartments, etc. then such A secret chambers, cavities or compartments, etc. may become evidence which may be seen by a Court trying such a case and, thus, seizure of such a conveyance may be necessary to- "furnish evidence of the commission of an offence punishable under this Act". Apart from the above mentioned three implied situations we have not been able to find any other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotics.
8. Now 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 interim 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 or 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 B 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. We have already observed above a vehicle can be seized under the 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 the assets derived from narcotic 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 interim custody or superdari involved in such a situation. The discussion made above shows that it is only in the first and third situations that a vehicle can be seized at the time of or as an immediate consequence of recovery of narcotics and, therefore, in no other situation a vehicle can be seized under the Control of Narcotic Substances Act, 1997 at such a stage. If in the other situations a vehicle cannot even be seized to start with then the provisions of section 74 of the Control of Narcotic Substances Act, 1997 forbidding granting of interim custody/superdari would hardly come into play. The rigors of section 74 have already been softened down by the Hon'ble Supreme Court of Pakistan in the case of Abdul Salam v. The State 2003 SCMR 246 and by this Court in the case of Niaz Ullah v. The State 2002 PCr.LJ 97 and through the discussion made above we have ventured to add a new dimension in this regard with reference to the provisions of the Control of Narcotic Substances Act, 1997 itself.
9. 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.
10. It may be pertinent to mention here that even under the general law a vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person cannot be taken into possession by the police as case-property. We may refer in this context to the cases of Syed Razi Shah v. The State (1971 PCr.LJ 19), Mst. Khadija Begum v. Sessions Judge, Sahiwal (1986 PCr.LJ 945), Muhammad Ramzan v. The State (NLR 1990 Cr.LJ 72), Syed Bahawal Shah v. The Crown (PLD" 1951 Baghdadul-Jadeed 57), Sheraz Elahi v. The State (1984 PCr.LJ 1935), R. v. Khan and another (KLR 1984 Cr.C. 183) and Humayun Azam v. Ch. Sadiq and three others (1999 MLD 1676). There is no reason why the same principle may not be followed in cases of narcotics except those cases where the above mentioned special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997.
11. The appellants in the present case claim to be joint owners of the seized motorcycle and their claim based in that regard upon a Registration Book has not been controverted or contested by anybody so far. Apart from the appellants nobody else has asked for superdari of the c seized motorcycle till date. Admittedly the appellants are not accused persons in the relevant criminal case and nothing had been recovered from their possession in the said case. There is nothing available on the record of investigation of this case so far showing that the appellants had any knowledge that the accused person would use their motorcycle for committing any offence relating to narcotics and the law does not allow putting the onus on the appellants to prove their lack of knowledge in that regard. It is also not disputed that the narcotic substance recovered from the accused person in this case was allegedly recovered from his physical possession (concealed in a plastic belt fastened by the said accused person around his waist under his shirt) and the same had not been recovered from any secret chamber, cavity or compartment, etc. of the motorcycle that he was statedly driving. In these circumstances the appellants motorcycle being driven by the said accused person could not c lawfully have been seized by the relevant officer upon recovery of narcotics from physical possession of that accused person. Even otherwise the said motorcycle was not being used for transporting the recovered narcotics and as a matter of fact, according to the prosecution's own case, the said motorcycle was being used only for transporting the accused person. In this view of the matter seizure of the relevant motorcycle has appeared to us to be not only unnecessary but also unwarranted under the Control of Narcotic Substances Act, 1997. The bar contained in section 74 of the said Act was, thus, inapplicable to the case in hand and the learned Additional Sessions Judge, Faisalabad was not justified in dismissing the appellants' application seeking superdari of the said motorcycle.
12. Articles 23 and 24 of the Constitution of the 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, D body, reputation or property of any person shall be taken except in accordance with law". If the motorcycle seized in the present case belongs to the appellants 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 appellants appear to have every right to reclaim its possession as they had been deprived of the same otherwise than in accordance with the law.
13. For what has been discussed above this appeal is allowed, the impugned order passed by the learned Additional Sessions Judge, Faisalabad on 20-12-2005 is set aside, the application submitted by the appellants seeking superdari of the motorcycle in issue is accepted and the learned Additional Sessions Judge, Faisalabad is directed to pass an appropriate order releasing the said motorcycle on superdari of the appellants upon suitable terms.
M.B.A./J-2/L Appeal accepted.
Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ
JAVED HAYAT and another---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No.3 of 2006, heard on 17th January, 2006.
(a) Control of Narcotic Substances Act (XXV of 1997)---
---Ss. 2(1), 20, 21, 22, 23, 26, 32 & 74---Superdari of seized vehicle---Analysis of Ss.2(1), 20, 21, 22, 23, 26, 32 & 74 of Control of Narcotic Substances Act, 1997---Implied situations in the context of the Control of Narcotic Substances Act, 1997 which may make permissible seizure of a vehicle or conveyance in a case of narcotics detailed---Vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person, under the general law, cannot be taken into possession by the police as case-property; there is no reason why the same principle may not be followed in cases of narcotics except those cases where the special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997---Principles.
In the context of a vehicle it is, noticed that section 2(1) of the Control of Narcotic Substances Act, 1997 manifests that a vehicle is included in the definition of a "conveyance". Section 20 of the said Act empowers a Special Court to issue a warrant of search of a conveyance "in" which narcotics may reasonably be believed to have been "kept or concealed". Section 21 deals with power of entry, search, seizure and arrest without warrant and it allows the relevant officer to enter into and search a conveyance and seize the narcotics recovered as a result of such entry and search but, significantly, it does not expressly authorize the officer to seize the conveyance. Similarly section 22 deals with powers of seizure and arrest in a public place and empowers an officer to seize the recovered narcotics but is silent about any power to seize the relevant conveyance. Section 23 specifically deals with the power to stop and search a conveyance but while authorizing an officer to stop, rummage, search and examine a conveyance it stops short of authorizing the officer to seize the same. Vexatious and unnecessary seizing of the property of any person "on the pretence of seizing or searching for" narcotics is an offence under section 26 and is punishable with imprisonment and 'fine. After conclusion of a case the recovered narcotics and the "materials, apparatus and utensils" by means of which the offence had been committed are liable to confiscation under sub-section (I) of section 32.
Subsection (2) of section 32 provides for confiscation of the "vehicles, vessels and other conveyances" but such power of confiscation is limited to only those cases where lawfully imported, transported, manufactured, possessed or sold narcotics are' mixed with unlawful narcotics and in such cases the lawful narcotics can be confiscated along with the unlawful narcotics and the receptacles, packages, vehicles, vessels and other conveyances used in carrying such narcotics can also be confiscated. There is no provision in the Control of Narcotic Substances Act, 1997 whereby a conveyance can be seized as a result of search and recovery of narcotics and, thus, Confiscation of such a conveyance is out of the question. However, subsection (2) of section 32 of the said Act is the only provision which expressly allows confiscation of a conveyance implying that a conveyance can also be seized but the said section is confined in this respect only to a particular and specified situation, i.e. where the conveyance is carrying unlawful narcotics along with lawful narcotics. Even in such cases the proviso to subsection (2) of section 32 hastens to add 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". Section 12 of the Control of Narcotic Substances Act, 1997 contains a prohibition against acquisition and possession of assets derived from narcotic offences and the word "assets" has been defined in section 2(b) of the said Act. By virtue of the provisions of section 19 of that Act the assets of a person convicted for an offence under the said Act shall, in a particular situation, stand forfeited to the Federal Government. It goes without saying that in a given case such assets may include a conveyance. A forfeiture of such a conveyance may be possible after a seizure and confiscation thereof. This is the second situation where by implication a seizure of a conveyance may be contemplated under the Control of Narcotic Substances Act, 1997. A possible third situation can also be visualized in this context and that is where the conveyance is seized because the conveyance itself is to provide proof regarding possession and recovery of narcotics. Such a seizure may be authorized by the provisions of clause (c) of subsection (1) of section 21 and also clause (a) of section 22 of the Control of Narcotic Substances Act, 1997 but in order to call the said provisions in aid for this purpose one has to equate a conveyance with an "article" as the said provisions expressly speak of an "article" which "may furnish evidence of the commission of an offence punishable under this Act". When a conveyance is used for keeping or concealing narcotics in its secret chambers, cavities or compartments, etc. then such secret chambers, cavities or compartments, etc. may become evidence which may be seen by a Court trying such a case and, thus, seizure of such a conveyance may be necessary to "furnish evidence of the commission of an offence punishable under this Act". Apart from the above mentioned three implied situations there is no other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotics.
Provisions of section 74 of the Control of Narcotic Substances Act, 1997 have to be examined in order to find out the true import and scope of the same vis-a-vis giving of interim 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 or manufacture of such drugs or substances or any conveyance used in import, export, transport or transshipment thereof or for commission of an offence under the Act shall not be given on custody to the accused or any of his associates 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 unlawful narcotics along with some lawful narcotics, secondly, where it is a part of the assets derived from narcotic 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 interim custody or superdari involved in such a situation. It is only in the first and third situations that a vehicle can be seized at the time of or as an immediate consequence of recovery of narcotics and, therefore, in no other situation a vehicle can be seized under the Control of Narcotic Substances Act, 1997 at such a stage. If in the other situations a vehicle cannot even be seized to start with then the provisions of section 74 of the Control of Narcotic Substances Act, 1997 forbidding granting of interim custody/superdari would hardly come into play. The rigors of section 74 have already been softened by the Supreme Court of Pakistan in the ease of Abdul Salam v. The State (2003 SCMR 246) and by Lahore High Court in the case of Niaz Ullah v. The State (2002 PCr.LJ 97) and a new dimension has been added by the High Court in this regard with reference to the provisions of the Control of Narcotic Substances Act, 1997 itself.
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 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.
Even under the general law a vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person cannot be taken into possession by the police as case-property. There is no reason why the same principle may not be followed in cases of narcotics except those cases where the above mentioned special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997.
Abdul Salam v. The State 2003 SCMR 246; Niaz Ullah v. The State 2002 PCr.LJ 97; Syed Razi Shah v. The State 1971 PCr.LJ 19; Mst. Khadija Begum v. Sessions Judge, Sahiwal 1986 PCr.LJ 945; Muhammad Ramzan v. The State NLR 1990 Cr.LJ 72; Syed Bahawal Shah v. The Crown PLD 1951 B.J. 57; Sheraz Elahi v. The State 1984 PCr.LJ 1935; R. v. Khan and another KLR 1984 Cr.C.183 and Humayun Azam v. Ch. Sadiq and 3 others 1999 MLD 1676 ref.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 74, 48, 2(1), 20, 21, 22, 23, 26 & 32---Superdari of the seized vehicle---Two persons, in the present case, claimed to be joint owners of the seized vehicle and their claim was based in that regard upon a Registration Book which was not controverted---Nobody else had asked for superdari of the seized vehicle till date---Owners of the vehicle were not accused persons in the relevant criminal case and nothing had been recovered from their possession in the said case---Nothing was available on record of investigation of the relevant case so far showing that the owners had any knowledge that the accused person would use their vehicle for committing any offence relating to narcotics---Law would not allow putting the onus on such person claiming the vehicle, to prove their lack of knowledge in that regard---Narcotic substance recovered from the accused person in the case was allegedly recovered from his physical possession (concealed in a plastic belt fastened by accused around his waist under his shirt) and the same had not been recovered from any secret Chamber, cavity or compartment, etc. of the vehicle that he was statedly driving---Vehicle being driven by the accused, in circumstances, could not lawfully have been seized by the relevant officer upon recovery of narcotics from physical possession of that accused---Vehicle in question was not being used for transporting the recovered narcotics and as a matter of fact, according to the prosecution's own case, the said vehicle was being used only for transporting the accused person---Seizure of the relevant vehicle was not only unnecessary but also unwarranted under the Control of Narcotic Substances Act, 1997---Bar contained in S.74 of the said Act was, thus, inapplicable to the present case and Trial Court was not justified in dismissing the application seeking superdari of the said vehicle by claimants (owners).
(c) Control of Narcotic Substances Act (XXV of 1997)---
----Preamble---Constitution of Pakistan (1973), Arts. 23, 24 & 4---Superdari of seized vehicle---Protection of property rights---Provisions of Arts. 23 & 24 of the Constitution 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 Art. 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 a case belonged to other persons 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 said other persons had a right to reclaim its possession as they had been deprived of the same otherwise than in accordance with law.
Ch. Muhammad Aslam for Appellants.
Ch. Muhammad Sharif, Special Prosecutor for the Anti-Narcotics Force assisted by Maqbool Ahmad Qureshi for the State.
Date of hearing: 17th January, 2006.
JUDGMENT
ASIF SAEED KHAN KHOSA, J.----Some laws are generally perceived as draconian but the discussion that follows would show that more often than not such laws are dreaded not because of their stringent provisions but because of their reckless misuse by the authorities concerned either deliberately or on account of sheer misunderstanding of the same.
2. The necessary facts giving rise to the present appeal are that on 4-12-2005 a police party stopped a motorcycle Yamaha 100 CC bearing Registration number FSH 8055 being driven by one Feroze Khan alias Shera in Chak No. 241/RB and after a personal search of the driver it recovered Charas weighing 1000 grams concealed in a plastic belt fastened by the said driver around his waist under his shirt. The recovered Charas and the above mentioned motorcycle were seized by the police party. On the basis. of that recovery F.I.R. No. 818 was registered at Police Station Thikriwala, District Faisalabad at 9-30 AM on 4-12-2005 in respect of an offence under section 6 read with section 9(c) of the Control of Narcotic Substances Act, 1997. Claiming to be joint and undisputed owners of the seized motorcycle and maintaining that they had no knowledge that the relevant accused person would use their motorcycle for commission of the said offence the present appellants submitted an application on 10.12.2005 seeking superdari of the same but after obtaining a report in that regard from the Station House Officer of the relevant Police Station the learned Additional Sessions Judge, Faisalabad seized of that application disposed of the same on 20.12.2005 by passing the following order:
"Report of S.H.O. has been received. As per F.I.R. vehicle sought for superdari has been used in the trafficking of narcotics which after the evidence is liable to be confiscated. At this stage nothing is on record to calculate that the petitioner has no knowledge for use of his vehicle in trafficking of narcotics. Proceedings in case are yet to be concluded. Hence I do not find the petitioners entitled for superdari of vehicle used in the trafficking of narcotics. The petition is hereby disposed of accordingly."
The appellants have assailed the said order before this Court through the present appeal.
3. We have heard the learned counsel for the parties and have gone through the relevant record of this case with their assistance. It has been argued by the learned counsel for the appellants that the appellants are the undisputed joint owners of the relevant motorcycle as is evident from the Registration Book of the same (a 'copy whereof has been appended with this appeal as Annexure-B); the said motorcycle had been borrowed from the appellants by the accused person namely Feroze Khan alias Sheri and there is nothing available on the record of this case to show that the appellants had any knowledge that their motorcycle would be used by the said accused person for any illegal activity; in the circumstances of this case the relevant motorcycle could not have been seized by the police party as the same was not a case-property; no useful purpose would be served by allowing the said motorcycle to remain in custody of the police as in such a situation the condition of the motorcycle would deteriorate; and, therefore, the learned Additional Sessions Judge, Faisalabad was not justified in refusing to grant superdari of the said motorcycle to the appellants. As against that the learned Special Prosecutor for the Anti-Narcotics Force assisted by the learned counsel for the State has argued that the motorcycle in issue had been used for transporting of narcotics and, thus, by virtue of the provisions of section 74 of the 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 motorcycle would be liable to confiscation under section 32 of the Control of Narcotic Substances Act, 1997. He has, thus, maintained that this appeal is misconceived and the same is, therefore, liable to be dismissed.
4. After hearing the learned counsel for the parties and going through the relevant record of this case with their assistance we have observed that the case in hand involves some important issues, i.e. whether a vehicle can be seized in a case of recovery of narcotics and, if so, in which circumstances can it be seized and also whether a seized vehicle can be given on superdari to any person till conclusion of the case or not? Such issues have wide implications and, therefore we have decided to attend to the relevant legal provisions in some detail.
5. The followings provisions of the Control Of Narcotic Substances Act, 1997 appear to be particularly relevant in this context and the same are, therefore reproduced here in full:
Section 2(1): " "conveyance" means a conveyance of any description whatsoever and includes an aircraft, vehicle, vessel, railways or animal."
Section 20: "Power to issue warrants.--(1) A Special Court may issue a warrant of arrest of any person against whom it has reason to believe to have committed an offence punishable under this Act, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.
(2) The officer to whom a search warrant under subsection (1) is addressed shall have all the powers of an officer acting under section 21 . "
Section 21: "Power of entry, search, seizure and arrest without warrant.--(1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrestor search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may-
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in" the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub-section (1), the officer referred to in subsection (1) shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer."
Section 22: "Power of seizure and arrest in public place.--An officer authorized under section 21 may-
(a) seize, in any public place or in transit, any narcotic drug, psychotropic substance or controlled substance in respect of which he has reason to believe that an offence punishable under this Act has been committed, and, along with such drug, substance or any other article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug, psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him.
Explanation.- For the purpose of this section, the expression "public place" includes any public conveyance, hotel, shop or any other place intended for use by, or accessible to, the public."
Section 23: "Power to stop and search conveyance.--An officer referred to in section 21 may, if he has reason to suspect that any conveyance is, or is about to be, used for the transport of any narcotic drug, psychotropic substance or controlled substance in respect of which he suspects that any provision of this 'Act has been, or is being, or is about to be, contravened at any time, stop such conveyance or, in the case of an aircraft, compel it to land and--
(a) rummage and search the conveyance or part thereof;
(b) examine acid search any goods on or in the conveyance;
(c) if it becomes necessary to stop the conveyance, he may use all reasonable force for stopping it."
Section 26: "Punishment for vexatious entry, search, seizure or, arrest.--Any person empowered under section 20 or section 21 who--
(a) without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched any building, place, premises or conveyance;
(b) vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug, psychotropic substance, controlled substance or any other article or document relating to any offence under this Act; and
(c) vexatiously and unnecessarily detains, searches or arrests any person
shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to twenty-five thousand rupees."
Section 32: "Articles connected with narcotics.--(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 committed 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 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."
Section 74: "Application of other laws.--If an offence punishable under this Act is also an offence hi any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Act:
Provided that notwithstanding anything contained in section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898) or any other provision of the said Code or any other law for the time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material or utensils used for production or 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 sub-section (2) of section 33."
6. In the context of a vehicle we have noticed that section 2(1) of the Control of Narcotic Substances Act, 1997 manifests that a vehicle is included in the definition of a "conveyance". Section 20 of the said Act empowers a Special Court to issue a warrant of search of a conveyance "in" which narcotics may reasonably be believed to have been "kept or concealed". Section 21 deals with power of entry, search, seizure and arrest without warrant and it allows the relevant officer to enter into and search a conveyance and seize the narcotics recovered as a result of such entry and search but, significantly, it does not expressly authorize the officer to seize the conveyance. Similarly section 22 deals with powers of seizure and arrest in a public place and empowers an officer to seize the recovered narcotics but is silent about any power to seize the relevant conveyance. Section 23 specifically deals with the power to stop and search a conveyance but while authorizing an officer to stop, rummage, search and examining a conveyance it stops short of authorizing the officer to seize the same. Vexatious and unnecessary seizing of the property of any person "on the pretence of seizing or searching for" narcotics is an offence under section 26 and is punishable with imprisonment and fine. After conclusion of a case the recovered narcotics and the "materials, apparatus and utensils" by means of which the offence had been committed are liable to confiscation under sub-section (1) of section 32.
7. Subsection (2) of section 32 provides for confiscation of the "vehicles, vessels and other conveyances" but such power of confiscation is limited to only those cases where lawfully imported, transported, manufactured, possessed or sold narcotics are mixed with unlawful narcotics and in such cases the lawful narcotics can be confiscated along with the unlawful narcotics and the receptacles, packages, vehicles, vessels and other conveyances used in carrying such narcotics can also be confiscated. So far we have seen that there is no provision in the Control of Narcotic Substances Act, 1997 whereby a conveyance can be seized as a result of search and recovery of narcotics and, thus, confiscation of such a conveyance is out of the question. However, subsection (2) of section 32 of the said Act is the only provision which expressly allows confiscation of a conveyance implying that a conveyance can also be seized but the said section is confined in this respect only to a particular and specified situation, i.e. where the conveyance is carrying unlawful narcotics along with lawful narcotics. Even in such cases the proviso to subsection (2) of section 32 hastens to add 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". We may add here that section 12 of the Control of Narcotic Substances Act, 1997 contains a prohibition against acquisition and possession of assets derived from narcotic offences and the word "assets" has been defined in section 2(b) of the said Act. By virtue of the provisions of section 19 of that Act the assets of a person convicted for an offence under the said Act shall, in a particular situation, stand forfeited to the Federal Government. It goes without saying that in a given case such assets may include a conveyance. A forfeiture of such a conveyance may be possible after a seizure and confiscation thereof. This is the second situation whereby implication a seizure of a conveyance may be contemplated under the Control of Narcotic Substances Act, 1997. A possible third situation can also be visualized by us in this context and that is where the conveyance is seized because the conveyance itself is to provide proof regarding possession and recovery of narcotics. Such a seizure may be authorized by the provisions of clause (c) of subsection (1) of section 21 and also clause (a) of section 22 of the Control of Narcotic Substances Act, 1997 but in order to call the said provisions in aid for this purpose we would have to equate a conveyance with an "article" as the said provisions expressly speak of an "article" which "may furnish evidence of the commission of an offence punishable under this Act". We may observe in this context that when a conveyance is used for keeping or concealing narcotics in its secret chambers, cavities or compartments, etc. then such A secret chambers, cavities or compartments, etc. may become evidence which may be seen by a Court trying such a case and, thus, seizure of such a conveyance may be necessary to- "furnish evidence of the commission of an offence punishable under this Act". Apart from the above mentioned three implied situations we have not been able to find any other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotics.
8. Now 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 interim 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 or 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 B 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. We have already observed above a vehicle can be seized under the 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 the assets derived from narcotic 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 interim custody or superdari involved in such a situation. The discussion made above shows that it is only in the first and third situations that a vehicle can be seized at the time of or as an immediate consequence of recovery of narcotics and, therefore, in no other situation a vehicle can be seized under the Control of Narcotic Substances Act, 1997 at such a stage. If in the other situations a vehicle cannot even be seized to start with then the provisions of section 74 of the Control of Narcotic Substances Act, 1997 forbidding granting of interim custody/superdari would hardly come into play. The rigors of section 74 have already been softened down by the Hon'ble Supreme Court of Pakistan in the case of Abdul Salam v. The State 2003 SCMR 246 and by this Court in the case of Niaz Ullah v. The State 2002 PCr.LJ 97 and through the discussion made above we have ventured to add a new dimension in this regard with reference to the provisions of the Control of Narcotic Substances Act, 1997 itself.
9. 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.
10. It may be pertinent to mention here that even under the general law a vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person cannot be taken into possession by the police as case-property. We may refer in this context to the cases of Syed Razi Shah v. The State (1971 PCr.LJ 19), Mst. Khadija Begum v. Sessions Judge, Sahiwal (1986 PCr.LJ 945), Muhammad Ramzan v. The State (NLR 1990 Cr.LJ 72), Syed Bahawal Shah v. The Crown (PLD" 1951 Baghdadul-Jadeed 57), Sheraz Elahi v. The State (1984 PCr.LJ 1935), R. v. Khan and another (KLR 1984 Cr.C. 183) and Humayun Azam v. Ch. Sadiq and three others (1999 MLD 1676). There is no reason why the same principle may not be followed in cases of narcotics except those cases where the above mentioned special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997.
11. The appellants in the present case claim to be joint owners of the seized motorcycle and their claim based in that regard upon a Registration Book has not been controverted or contested by anybody so far. Apart from the appellants nobody else has asked for superdari of the c seized motorcycle till date. Admittedly the appellants are not accused persons in the relevant criminal case and nothing had been recovered from their possession in the said case. There is nothing available on the record of investigation of this case so far showing that the appellants had any knowledge that the accused person would use their motorcycle for committing any offence relating to narcotics and the law does not allow putting the onus on the appellants to prove their lack of knowledge in that regard. It is also not disputed that the narcotic substance recovered from the accused person in this case was allegedly recovered from his physical possession (concealed in a plastic belt fastened by the said accused person around his waist under his shirt) and the same had not been recovered from any secret chamber, cavity or compartment, etc. of the motorcycle that he was statedly driving. In these circumstances the appellants motorcycle being driven by the said accused person could not c lawfully have been seized by the relevant officer upon recovery of narcotics from physical possession of that accused person. Even otherwise the said motorcycle was not being used for transporting the recovered narcotics and as a matter of fact, according to the prosecution's own case, the said motorcycle was being used only for transporting the accused person. In this view of the matter seizure of the relevant motorcycle has appeared to us to be not only unnecessary but also unwarranted under the Control of Narcotic Substances Act, 1997. The bar contained in section 74 of the said Act was, thus, inapplicable to the case in hand and the learned Additional Sessions Judge, Faisalabad was not justified in dismissing the appellants' application seeking superdari of the said motorcycle.
12. Articles 23 and 24 of the Constitution of the 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, D body, reputation or property of any person shall be taken except in accordance with law". If the motorcycle seized in the present case belongs to the appellants 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 appellants appear to have every right to reclaim its possession as they had been deprived of the same otherwise than in accordance with the law.
13. For what has been discussed above this appeal is allowed, the impugned order passed by the learned Additional Sessions Judge, Faisalabad on 20-12-2005 is set aside, the application submitted by the appellants seeking superdari of the motorcycle in issue is accepted and the learned Additional Sessions Judge, Faisalabad is directed to pass an appropriate order releasing the said motorcycle on superdari of the appellants upon suitable terms.
M.B.A./J-2/L Appeal accepted.
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