NIAZ ULLAH vs THE STATE

ORDER

' The matter relates to F.I.R No,27, dated 12-7-2001, registered at Police Station Anti-Narcotics Force, under section 9-C of the Control of Narcotic Substances Act, 1997.

2. The matter pertains to the Superdari of vehicle bearing Registration No,RNA-8808 which was apprehended as a case property in the said F.I.R. By the Anti-Narcotic Force.

3. Niaz Ullah petitioner who is not an accused in this case, is asking for the Superdari of the vehicle on the ground that he was the owner of the vehicle. According to him, the car was being driven by his driver Izzat Khan when it was searched and 7 kilograms of Charas was found concealed in the spare wheel of the vehicle and consequently the case was lodged against him.

4. The Superdari of the vehicle was refused by the learned Judge, Special Court (C.N.S.) Rawalpindi, vide his orders of 22-8-2001 and this has been questioned through this criminal revision, in this Court.

5. Section 74 of the Control of Narcotic Substances Act, 1997 imposed certain conditions on the release of any transport involved in the transportation of narcotic drugs and reads as follows:-- "Application of other laws.--- If an offence punishable under this Act, is also an offence in 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 nothing 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 time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material utensils used for production or manufacture of such drugs or substances or any conveyance used in import, export, transport or transhipment 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."

6. The question for determination is whether the owner of a vehicle who is not involved as an accused in the case, can be deprived of the custody of the transport involved until the conclusion of the trial.

7. The admitted position is that the petitioner is the owner and there is no dispute about it. For ascertaining as to what may have been his role, the Court summoned the Investigating Officer.

Who on repeated questions has categorically stated that the owner was not involved in any manner in the offence and, therefore, was not inducted as an accused in this case.

8. It has been argued on behalf of the petitioner's side that carrying of Charas in a spare wheel reflected that the Charas was not being carried in any secret cavity created for purposes of smuggling in the car. That it has also to be seen whether the spare wheel belonged to the vehicle under reference or it had been picked up by the driver from somewhere at his own.

9. The forbidding portion of section 74 of the Anti-Narcotic Substances Act, 1997, deprives the accused, his associate or relative or any private individual from the pre-trial custody of the vehicle involved. Which obviously means that the accused or anyone else on his side is excluded in this connection. The term "private individual" appearing in the section, would also be related to the accused's side and the purpose of adding this term was to deprive any circumvention of law by the accused's side so that any private individual who may not be a relation of the accused or the associate of the accused in any legal sense but was connected to the accused otherwise be also kept within the deprived category.

10. But the case of an owner of a vehicle who may be running a taxi service or a rent-a-car service or where he handed over his vehicle to a driver for running an errand for him and who has nothing to do with the crime, is not an accused in the case and is also found innocent by the Investigating Agency, is altogether different. And the law will have to show its benevolence as far as he is concerned. The interpretation of section 74 even if strictly construed, would place such a person outside the ambit of the forbidding clause of the section. Otherwise, there would be unjust results for an owner and this cannot be the policy of law.

11. This Court, therefore, feels that the owner of a vehicle which is involved in the crime on account of a third person who was driving it and where an owner himself was held to be innocent, falls on a different footing and the prohibition of pre-trial custody created by section 74 of the Control of Narcotic Substances Act, 1997, shall not be extendable to him.

12. Under the circumstances and after hearing the Investigating Officer and the learned counsel from both sides, this Court allows the petition and directs that the custody of the vehicle under reference may be handed over to the petitioner on Superdari provided he furnishes a bond in the sum of Rs,50,000 with two respectable sureties in the like amount to the satisfaction of the trial Court, while also undertaking that he shall produce the vehicle whenever required by the trial Court without creating any hindrance.

13. Disposed of.

Revision .