P L D 2020 Supreme Court 299

P L D 2020 Supreme Court 299

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Syed Mansoor Ali Shah, JJ

AMJAD ALI KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.74-L of 2018, decided on 13th March, 2020.

(On appeal from the judgment of the Lahore High Court, Lahore dated 30.10.2017, passed in Crl. A. No. 146 of 2016 and W.P. No.33366 of 2016).

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

----S. 32(2)---Vehicle used in transportation of narcotics---Confiscation of such vehicle---Scope---Under S.32(2) of the Control of Narcotic Substances Act, 1997 vehicles, vessels and other conveyances were liable to confiscation if they were used in carrying both narcotics or narcotics along with lawful drugs and substances---Vehicles, vessels and other conveyances were liable to confiscation irrespective whether they were used in carrying narcotics alone or joint category of narcotics and lawful drugs and substance.

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

----Ss. 32(2) & 74, proviso---Criminal Procedure Code (V of 1898), S.516-A---Superdari/custody of vehicle used in transportation of narcotic---Scope---Applicant could seek release of a vehicle on superdari, which had been seized under the Control of Narcotic Substances Act 1997 and was a case property in a criminal case; if the applicant could show that he was the lawful owner of the vehicle; and that he was neither the accused nor an associate or a relative of the accused or an individual having any nexus with the accused.

Under the proviso to section 74 of Control of Narcotic Substances Act, 1997 ('the 1997 Act'), the provisions of Cr.P.C to the extent of custody and disposal of a conveyance under general law were not applicable under the 1997 Act. Vehicle used in the commission of an offence under the 1997 Act could not be released or given on custody (superdari) to the accused or any of his associate or relative or any private individual till the conclusion of the case.

Joint reading of sections 32 and 74 of the 1997 Act showed that an applicant could seek release of a vehicle on superdari, which had been seized under the 1997 Act and was a case property in a criminal case; if the applicant could show that he was the lawful owner of the vehicle; that he was neither the accused nor an associate or a relative of the accused or an individual having any nexus with the accused. While the prosecution had to show/prove that the applicant knew that the offence was being or was to be committed. It was during trial that the prosecution had to prove that the owner knew that the offence was being or was to be committed. Under section 33 if the vehicle was finally held not liable to confiscation it could be released to its owner. As a corollary, where the court could pass a final order, it could also pass an interim order, therefore, a vehicle could also be released as an interim measure or temporarily on superdari under the 1997 Act after the court was prime facie satisfied regarding the ownership of the applicant and the absence of the association of the owner with the accused and the commission of the offence. Applicant while asserting his ownership of the vehicle must specify in his application for superdari how he was deprived of the vehicle, how and when he found out that his vehicle was missing, and the legal proceedings initiated by him thereafter, if any.

Allah Ditta v. The State 2010 SCMR 1181 and Abdul Salam v. The State 2003 SCMR 246 ref.

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

----S. 32(2)---Criminal Procedure Code (V of 1898), S. 516-A---Motor Vehicles Ordinance (XIX of 1965), S. 2(24)---Superdari of vehicle used in transportation of narcotic---Scope---Ownership of vehicle - Proof - Vehicle on 'open transfer letter' - Applicant must be the owner of the vehicle prior to the commission of the offence---Open transfer letter was not a valid document of title and it did not transfer ownership of a vehicle in terms of the Motor Vehicles Ordinance, 1965---Legal title of a vehicle confiscated under the Control of Narcotic Substances Act, 1997 stood frozen till the conclusion of the trial and as a result the owner stood cautioned not to deal or transact with the title of the vehicle till the conclusion of the trial.

In the present case, the applicant/petitioner moved an application for seeking superdari of the vehicle on 20-11-2015, described himself as the owner of the vehicle, but at the time, he only had an open transfer letter. Open transfer letter was not a valid document of title and it did not transfer ownership of a vehicle in terms of the Motor Vehicles Ordinance, 1965. Subsequently, the vehicle was duly registered in the name of the applicant on 21-01-2016, which was too late as at the time of alleged commission of the offence, the seizure of the vehicle and the registration of the criminal case on 20-08-2015 the applicant was not the owner of the vehicle. Applicant must be the owner of the vehicle prior to the commission of the offence.

On 20-08-2015, when the applicant made application for superdari of the vehicle, he was not the owner of the vehicle and, therefore, did not pass the requirement laid down in proviso to section 32 of the Control of Narcotic Substances Act, 1997 ('the 1997 Act'). Further, the applicant did not assert a word, in the application, to show that he was not an associate or relative of the accused or an individual having any nexus with the accused or the offence. His failure to explain how the vehicle, whose ownership he claimed, had gone into the possession and use of the accused was fatal to his prayer for superdari of the same. As the petitioner had failed to establish his ownership of the vehicle, there was no reason to burden the prosecution to show if the applicant was aware of the commission of the offence. Application made for release of the vehicle by the applicant was, therefore, not maintainable, and was wrongly allowed by the trial court.

Vehicle was registered in the name of the applicant by the Motor Registration Authority under the Motor Vehicles Ordinance, 1965, when the vehicle had already been seized by the police and had become case property in a criminal case, hence becoming liable to confiscation under the 1997 Act. As a result the disposal of the vehicle came under the control of the court and the owner stood cautioned not to deal or transact with the title of the vehicle till the conclusion of the trial. In fact there was a freeze on the legal title of the owner of the vehicle till the conclusion of the trial. The rationale behind this being that any transfer or change in the title of the vehicle (case property) would undermine the safe administration of criminal justice system; as any such transfer (registration of the vehicle in the name of a third party) would amount to interference in the powers of the criminal court and in eroding the sanctity and security of the evidence in an ongoing criminal trial. Therefore, transfer of ownership of the vehicle by the Motor Registration Authority on 21-01-2016 was not permissible and was, therefore, without lawful authority.

Supreme Court directed that the Provincial Government, and Chief Commissioner, ICT should consider amendment(s) in the Motor Vehicles Ordinance, 1965 and the Rules thereunder to prevent registration of vehicles involved in the commission of crime; that in addition, the Provincial Governments and ICT may consider that the Motor Registration Authority and the police develop an online verification system to identify vehicles involved in the commission of crime; that the transferor/transferee at the time of registration of the vehicle may be required to obtain a No Objection Certificate from the police or to submit an Affidavit to the effect that the vehicle was not involved in any criminal case.

(d) Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 27 & 32---Transfer of ownership of vehicle in favour of subsequent transferee---Physical verification of vehicle---Requirement of S.27 of the Motor Vehicles Ordinance, 1965 regarding physical verification of the vehicle prior to registration was an essential requirement and was fully applicable to subsequent registrations of vehicles under S.32 of the Ordinance.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Petitioner.

Rana Abdul Majeed, Addl. P.G. for the State.

Wajeeh Ullah Kundi, Secy. Excise Punjab, Suhail Shahzad, D.G. Excise, Punjab, Mian Latif ETO, Mianwali, Bilal Azam, Director Excise ICT and Sharif Gul, ETO, ICT for the State/Respondents.