Ikramullah Khan, J. Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, we intend to decide the persistent issue in matter of disposal and interim custody of vehicles involved in transportation of the Narcotics/Contraband/psychotropic substance, defined and prescribed thereunder the law of Control of Narcotic Substances Act, 1997.
2. We have noted with great concern that no uniform and specific procedure is followed by Courts in disposal of such vehicles, allegedly involved in smuggling/transportation of the contraband.
3. Prior 'to decide the instant writ petition, we would like to give reference to the relevant provision of law of Control of Narcotic Act, which in its sense is a special law, providing special and specific provisions for disposal of vehicles involved in the offence, committed under any provisions of Control of Narcotics Substances Act, 1997 subject to same restrictions placed thereunder Section 74 of the CNSA.
4. The provisions contained in Section 74 of the CNSA, is placed an embargo on the release of vehicles being case property in narcotics cases. The relevant proviso, if reproduce, would be read as:-
74. 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 substanc es, 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."
5. No doubt, the proviso is not absolute but bars release of such vehicles during course of trial on interim custody , commonly known as "superdari". But despite explicit bar in this regard Courts are interpreting the same proviso in various ways, keeping in view the peculiar facts and circumstances of the case, which has created such a state that the effect of proviso to Section 74 of the CNSA has lost its efficacy and the matter is governed exclusively by discretion of the Court dealing with the matter of custody of the vehicle.
6. According to the provision of Section 32 of CNSA, all such vehicles used in transportation and smuggling of the Narcotics are liable to confiscation/forfeiture with an exception that the vehicle of a bonafide owner shall not be confiscated, if he did not know or have no knowledge that an offence under CNS A, would be committed through vehicle owned by him and it is also made mandatory in view of Section 33 of the CNSA, that before any adverse order is passed against a vehicle, its owner shall be served by a notice in this regard. Unfortunately the term owner is not specifically defined under any provision of the CNSA, therefore, general dictionary meaning is perceived by Courts which has caused complication in disposal of such like vehicles involved in the offences under CNSA.
7. Usually and mostly , vehicle seized by the law enforcing agency , involved under the offence transportation and smuggling, the accused do not possess any document of ownership of the vehicle on one hand while on other hand, if any document is found in custody of accused, the vehicle in most cases are not registered in the name of accused.
8. At the conclusion of investigation or trial, persons appear before the trial Court at a belated stage who claim the ownership asked for release of vehicle on interim custody on the ground that they were not in knowledge that the vehicle was used or likely to have used in the 'offence. In this regard the law is silent, however , for disposal of vehicles and other articles, involved in the Narcotics cases, rules are made but these rules do not cover the legal issues discussed hereinabove. There are two kind of cases in which vehicles are seized by the Law Enforcing Agencies. One under the provisions conta ined in Section 20 of the CNSA, 1997 and other under Section 22 of the same Act.
The provisions contained in Section 20 CNSA reads as:--
20. Power to issue warrants.-- (1) A Special Court may issue a warran t for the arrest-of any person 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 sub-section (1) is addressed shall have all the powers of an officer acting under Section 21.
While that of Section 22, CNSA reads as:-
22. Power to seizure and arrest in public places. - An of ficer 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 of fence 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."
9. The provisions contained in Section 27 of the CNSA, provide and prescribe the mode and manner for disposal of such vehicle seized in pursuance of Section 21 of the CNSA but no an provision is provided for disposal of vehicle, seized and taken in possession by the concerned authorities under Section 22 of the CNS/ and usually these vehicles are kept by the concern agencies under their custody which mostly are misused. Therefore, we would like to make bound all the Law Enforcing Agencies and I.O. dealing with case registered under any provisions of CNSA, 1997 to follow the procedure provided thereunder Section 31 of the CNSA, 1997 strictly to avoid complication and to provide sufficient evidence to Court in order to dispose of such vehicles without further inquiries in this regard which reads as:-
31. Power to call for information. -An officer authorized under Section 21 may, during the course of an enquiry in connection with the contravention of any provision of this Act, a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; b) require any person to produce or deliver , any document or thing useful or relevant to the Inquiry; c) examine any person acquainted with the facts and circumstances of the case; and d) require any bank or financial institution, notwithstanding anything contained in any other law for the time being in force, to provide any information whatsoever .
Where cases are disposed of by the Courts, they at the occasion of either acquit tal or conviction of the accused shall decide the fate of the vehicles, taken into custody by the Law Enforcing Agencies strictly in view of the provisions contained in Section 33 of the CNSA1997 which reads as:-
33. Procedure for making confiscation. -- the trial of offences under this Act, whether the accused is convicted or acquitted, the Special Court shall decide whether any article frozen or seized in connection with such of fence is liable to confiscation.
(2) Where any article seized under this Act appears to be liable to confiscation under Section 32, but the person who committed the offence in connection therewith is not known or cannot be found, the Special Court may inquire into and decide such liability , and may order confiscation accordingly: Provided that no order of confiscation of an article shall be made until the expiry of one month from the date of freezing or seizure, or without hearing any person who may claim any right thereto and the evidence, if any , which he produces in respect of his claim: Provided further that' if any such article, other than a narcotic drug; psychotropic substance or controlled substance is liable to, speedy and natural decay , or if the Special Court is of opinion that its sale would be for the benefit of its owner , he may at any time direct it to be sold and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.
(3) Any person who is not convicted under this Act and claims any right to property which has been confiscated under sub-section (2) may, within thirty days, apply to the Special Court for setting aside the order of confiscation: Provided that the period of thirty days may be extended for such further period as may be deemed appropriate by the Court in the event of the said person not having knowledge of the confiscation.
(4) A narcotic drug, psychotropic substance or controlled substance seized, under this Act shall be disposed of under Section 516A of the Code of Criminal Procedure, 1898 (Act V of 1898).
10. The above mentioned provisions of law envisaged hereunder Sections 32 and 33 of CNSA, confers power and jurisdiction upon the trial Courts only in order to dispose of such hides therefore, learned Courts of Sessions, are directed that in case receipt of any applic ation, in this regard by any person claim ing to owner of the vehicle, the same application shall be entrusted to special Courts before whom cases are sent for trial. All applications received by learned Court of Sessions, in this regard, where trial is not t commenced, such application shall be adjourned sine die, till the of the particular case is commenced.
11. Learned Special Courts in this regard shall make it sure and certain that the I.O. had already issued notices in term of Section 33 of the CNSA, 1997 and had rendered its finding in regard to ownership of the vehicles.
12. All the Investigation officer, before sending cases to Special Courts in this regard shall record statement of persons in whose names the vehicle is registered. In case of non-availability of the document with the accused the I.O. shall inquire from the concerned department, keeping in view the specific chassis number of the vehicle, the ownership of the vehicles.
13. Now adverting to the merits of the instant writ petition, it is evident from the record that the accused has already been convicted, however , the co-accused Mst. Maryam is still Proclaimed Offender while there is no any specific information that the co-accused was a genuine person, because she had been charged only on the statement of the convict under Section 161, Cr.P.C. but the Investigation Officer had not made any fruitful effort to determine, as to whether the person who had charged is a living person having any identity in this regard. The vehicle in question could not be left undecided for uncertain period which had already been exhibited during course of trial.
14. Therefore, this writ petition is partially accepted, the impugned judgment is set aside to the extent "that the case property (i.e, vehicle in question is ordered to be kept intact till the arrest and trial of Proclaimed Offender Mst. Maryam, who has not been arrested so far and her trial is not initiated" and the case is remanded to the learned trial Court to proceed under the provision of Section 33 of the CNSA 1997 for disposal of the vehicle.