KHAYAL MUHAMMAD vs THE STATE

ORDER

GHULAM MUSTAFA MENGAL J.--- This Criminal Appeal is directed against the judgment dated 26-2- 2008 passed by learned Special judges, Control of Narcotic Substances, Lasbella at Hub, whereby Mazda Truck bearing Registration No,JX-5087 has been confiscated in favour of State.

2. Briefly stated the facts of the case are that the complainant Jan Muhammad, Naib Sudebar, Pakistan Coast Guard, Uthal, on 17-8-2007 intercepted a Mazda Truck bearing Registration No,JX- 5087, Model 1991, Engine No,S0051, Chassis No,201700, from which 290 kilogram Charas was recovered and in this respect case was registered under section 9(c) Control of Narcotic Substances Act, 1997 vide F.I.R. No,39 of 2007 dated; 17-8-2007 against the two accused Adalat Khan and Farman Ali. Resultantly the Charas as well as the vehicle mentioned above was taken into custody. After usual investigation of the case, the challan of the case was sent to the Court of learned Sessions Judge/Special Judge, Control of Narcotic Substances, Lasbella at Hub, which was registered as C.N.S. Case No,54 of 2007.After recording and concluding the evidence the learned trial Court vide order dated 26-2-2008, convicted the accused persons namely Adalat Khan and Farman Ali under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced them to suffer R.I. For 14 years each, with fine of Rs,1,00,000 each and the vehicle in question was also confiscated in favor of State; however accused Abdul Hameed, Abdul Ghafoor and Inayatullah were acquitted. .

3. Appellant claiming himself to be the owner of the Mazda truck, during the trial filed an application under Section 516-A, Cr.P.C. Read with sections 32 and 74 of C.N.S. Act, 1997 for release of the vehicle in question on Superdari on 4-10-2007, however, the said application was dismissed by the trial Court vide Order dated 26-12-2007 for non-prosecution.

4. Feeling aggrieved from the confiscation order dated 26-2-2008, the appellant has filed the instant appeal.

5. We have heard Mr. Abdul Karim Khan Yousufzai, Advocate, learned counsel for the appellant and Mr. Rauf Atta, Standing Counsel representing the State.

6. On perusal of the record and proceedings, which is available on record, it appears from the impugned order that the owner of the truck was not put on notice as to why the truck be not confiscated. No doubt during the trial the appellant had approached the trial Court for release of the truck, but even then requirements of section 33 of the Control of Narcotic Substances Act, 1997 were not observed by the trial Court. It may be observed -that disposal of the articles connected with narcotics is dealt with under section 32 of the Control of Narcotic Substances Act, 1997, which in its proviso lays down a prerequisite condition that no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be, committed. In fact knowledge is a point of fact and is to be adjudicated in accordance with law in a normal procedure of dispensation of justice by putting the owner on notice and not necessarily the accused. But record of the case is absolutely silent that any effort was made to ascertain and determine the question that the applicant knew that the offence was being or was to be committed. All these procedural prerequisite have not been observed by the learned trial Court and the order has been passed for confiscation of the vehicle in question. It is true that the power to confiscate a vehicle is laid down in the aforesaid subsection (2) of the C.N.S. Act but the learned trial Court while passing the impugned order has wholly ignored the proviso appearing soon after the above subsection (2) of the said Act. Subsection (2) and the proviso are reproduced hereinbelow;--- "(2) Any narcotic drug, psychotropic substance or controlled substance lawfully 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 know that the offence was being, or was to be or was likely to be committed."

7. The above proviso permits confiscation of the vehicle only when it is proved that the owner has knowledge that the offence was being committed and at least a notice in this respect has to be issued to the owner. It cannot be said that the requirement of section 32 or section 33 have been followed and observed in this case.

8. Keeping in view the illegality committed by the trial Court, we are inclined to accept the appeal and set aside the impugned order to the extent of confiscation of Mazda Truck No,JX-5087 and this part of the matter is remanded to the trial Court for proceedings in accordance with law and decision of the case, thus the appeal is accordingly disposed of.