1. WAHID BUX BROHI, J.---Applicant has called in question the property order passed by learned 1st Additional Sessions Judge/Judge, C.N.S. Court, Jacobabad on 31-5-2003, which runs as under:-- "The property viz. 40 kilogram of Charas and 14.650 Kilogram of Opium be destroyed in accordance with law after expiry of appeal period and one licence in the name of accused and his NIC be returned to him after appeal period is over, whereas cash of Rs,200 is confiscated to Government Treasure. In the case in hand, it has been established that truck No,QAD-4031 Chassis No,13517, Model 1986 Hino was used in the transportation of the narcotics and its owner had due notice as the owner applied for its restoration and his application was rejected, as such the truck is confiscated to the Government and it shall put in open auction and its sale proceeds be deposited with the Government treasury after the appeal period is over. 20 bags of Daal Mash which was also loaded in the truck be restored to its owner after appeal period is over on production of proof of ownership." We have heard Mr. Safdar Ali Bhutto, learned counsel for applicant and Mr. Mushtaq Ahmed Kourejo, learned counsel for the State. Briefly, stated the background of the case is that on 10-12-1999 a truck bearing No,QAD-4031 driven by Abdul Sattar was stopped by S.H.O., Police Station Saddar, Jacobabad and on search 3 plastic bags kept on the carrier/roof of the cabin were secured. Two bags contained 80 pieces of Charas and the third contained opium in liquid form. The Charas was 40 kilograms in weight and opium 14.650 kilograms. A case was registered under section 9(c), Control of Narcotic Substances, Act, 1997 and the accused was tried. He was convicted by learned 1st: Additional Sessions Judge/Judge, C.N.S. Court, Jacobabad and sentenced to imprisonment for life besides fine of Rs,One Million. At the same time, the above quoted order was passed in respect of the truck.
2. From a bare perusal of above property order, it would be seen that the owner of the truck was not put on notice as to why the truck be not confiscated. Since the present applicant Muhammad Amin claims to be the owner, this Court in the first instance, got the documents verified from the issuing authority and received a positive report. No doubt, at one stage during the trial the applicant had approached the trial Court for return of the truck, but even then requirements of section 33 of the Control of Narcotic Substances Act, 1997 were not observed. Referring to the relevant provisions governing this point, 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 inter-alia in it is proviso lays down a pre-requisite 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. Essentially, 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. Incidentally, from the documents, it is established that the owner was the present applicant, but record is absolutely silent, if efforts were made to ascertain and determine the question that the applicant knew that the offence was being or was to be, committed. Nevertheless subsection (1) of section 33 of the said Act, further envisages a condition that irrespective of the fact that the accused is convicted or acquitted the Special Court shall decide whether any article frozen or seized in connection with such offence is liable to confiscation. The term 'decided' in subsection (1) of section 33 of the said Act immense significance and calls for an adjudication in accordance with law. All these procedural pre-requisites: have not been observed and the order has been passed by confiscating the property and consequentially auction has been ordered, which we are of the considered opinion is in utter disregard of the aforesaid provisions of law. On perusal of the record and proceedings, which is available in Criminal Jail Appeal No,D-75 of 2003, it appears from the order dated 31-5-2003, whereby the application of the owner the present applicant was dismissed, that the learned 1st: Additional Sessions Judge/Judge, CNS, Court, Jacobabad has referred to the provisions of-section 32(2) of C.N.S Act, 1997. It is true that the power to confiscate a vehicle is laid down in the aforesaid subsection (2) of the CNS Act, but the learned trial Court has wholly ignored the proviso appearing soon after the above subsection (2) of the said Act. Subsection (2) and the proviso are reproduced herein below:-- "2. Any narcotic drug, psychotropic substance or controlled substance lawfully imported, transported, manufactured, possessed, or sold alongwith, 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".
3. As already discussed the above proviso permits confiscation of Is vehicle only when it is proved that the owner has knowledge that the offence was being committed. As pointed out in the foregoing paras., this point is to be determined in accordance with law and at least a notice particularly on this aspect has to be issued to the owner, which is absolutely lacking. It can't be said that the requirement of proviso of section 32 or subsection (1) or section 33 have ever been followed and observed in this case. Consequently, the above property order to the extent of confiscation of the truck No,QAD-4031 is set aside and this part of the matter is remanded to the trial Court for proceedings in accordance with law keeping in view all the provisions of rules including those stated above. The application stands disposed of.