Naresh Rana v. State of U. P. and another, has allowed the application under Section
Case Details
Neutral Citation No. - 2024:AHC:172209 1 Court No. - 86 Case :- CRIMINAL REVISION No. - 3445 of 2024 Revisionist :- Ivne Hasan Khan Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Piyush Tripathi Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. By means of instant criminal revision, the order dated 17.5.2024 passed by Special Judge (S.C. / S. T. Act), Sonbhadra passed in Criminal Misc. Application No. 190 of 2024, arising out of Case Crime No. 135 of 2023, under Sections-8/20/29 of N. D. P. S. Act has been assailed by which the court below has rejected the application for release of the vehicle filed by the applicant, who is registered owner of the vehicle on the ground that on perusal of police station report and the first information report, it is obvious that the said truck was seized on charge of smuggling of 104 kg. illicit Ganja. Learned counsel for revisionist submits that the revisionist is registered owner of the vehicle. According to prosecution version, two vehicles were seized by the police on 19.9.2023 on the charge of smuggling of illicit Ganja. 104 kg Ganja was recovered from the truck in question and 30 kg Ganja was recovered at the same time from Baleno Car. He next submits that on the same
Legal Reasoning
set of facts, a coordinate Bench of this Court in Application under Section 482 CrPC. No. 18903 of 2024; Naresh Rana Versus State of U. P. and another, has allowed the application under Section 482 CrPC and directed release of the vehicle in question in favour of the applicant on certain conditions. Thus, in this case also vehicle in question deserves to be released on the ground of parity as both the vehicles were seized on similar charges and only difference which lies, is with regard to quantum of contraband. The vehicle lying in the police station in an unattended condition is a transport vehicle and revisionist is suffering huge financial loss due to its detention in police custody since 2 19.9.2023, i. e. more than one year. Per contra, learned A. G. A. opposed the prayer for release of vehicle and submitted that there are elaborate provisions under Section 52 A of N. D. P. S. Act regarding confiscation of illicit drugs, substance plants article and conveyance. In Section 60 and 63 of N. D. P. S. Act [52A. Disposal of seized narcotic drugs and psychotropic substances.-- 2[(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which
Decision
shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] (2) Where any 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in- charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 3[narcotic drugs, psychotropic substances, controlled substances] or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under 3 this Act and make an application, to any Magistrate for the purpose of-- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of 4[such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the innventory, the photographs of 5[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.] 60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation. — (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2) Any narcotic drug or psychotropic substance or controlled substances lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or 4 psychotropic substance or controlled substances, materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation. (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or controlled substance, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use. 63. Procedure in making confiscations.— (1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of 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 or thing, other than a narcotic drug, psychotropic substance, controlled substance, the opium poppy, coca plant or 5 cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it 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. From the perusal of order of impugned order it appears that the local police has submitted a report to the competent authority regarding disposal of vehicle under Section 52 A of the N. D. P. S. Act and the valuation report of the vehicle has been submitted by the A. R. T. O., Sonbhadra on 14.11.2024 for the purpose of confiscation. On the question of disposal of property seized by the police on the allegation or its use or involvement in an offence are provided in Section 451 and 457 Cr.P.C. which may be reproduced as under: "451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and. if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation-For the purposes of this section, "property" includes (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and 6 production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation." Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as- (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same. From the bare perusal of the above-stated statutory provisions under the Code of Criminal Procedure it appears that Section 451 is an enabling provision for the criminal Court to order for custody or disposal of property pending trial which is produced before the Court during any enquiry or trial. In every case property need not be produced before the Court physically and even a seizure report submitted by the police may amount to construction production of the property, on the other hand under Section 457 Cr.P.C. along with the seizure of the property by any officer is reported to a magistrate under the provisions of this Code and as such the property is not produced before a criminal Court during enquiry or trial a magistrate may make such order which he finds fit for disposal of such property. Thus, Section 455 a property seized by the police may be directed to be released to a person who is entitled to its possession, even at the stage of investigation or any subsequent stage. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai Versus State Of Gujarat 2002 (10) SCC 283 dealt with the question of detention of different kinds of property in police custody, in respect of which an offence has been 7 committed or which is not produced during an inquiry or trial. Such detention of property at the police station results into depreciation in its value and also burdens the Court and police also to take risk of misappropriation of the property or police tampering with the property while it is in custody. The Hon'bel Apex Court in Sundarbhai Ambalal Desai (supra) directed the criminal courts to pass appropriate orders for release of vehicle or other property seized by the police and lying in the police custody during enquiry or pendency of criminal case concerned. The hon'ble Apex Court issued guidelines regarding mode and manner of release and disposal of the vehicle pending trial in favour of the rightful person who is entitled to take or receive the same. In the present case the learned Special Judge has dismissed the application for release of the vehicle (truck) in question mainly on the ground that the same is allegedly found to have been transporting illicit Ganja by the accused persons and thus, the vehicle is involved in smuggling of contraband under the N. D. P. S. Act. Admittedly, the other vehicle seized along with the vehicle in question for the same offence has been directed to be released by this Court in favour of its registered owner vide order dated 5.9.2024 passed in Application under Section 482 Cr.P.C. No. 18903 of 2024. In my considered opinion, there is no legal impediment in release of the vehicle in question in favour of its registered owner during pendency of the enquiry or trial of the case under the N. D. P. S. Act in which it is seized by the police. There is no material to suggest that any confiscation order has been passed with regard to the vehicle by the District Magistrate under Section 60 (3) of N. D. P. S. Act. The impugned order suffers from illegality and irregularity and cannot be sustained. Learned Court below has failed to appreciate the fact that the vehicle in question is a transport vehicle and the same is lying in open at police station since 19.9.2023 and no useful purpose would be served in keeping the vehicle parked at the police station for indefinite period or till conclusion of trial of the concerned criminal case. 8 The revision is allowed. The impugned order dated 17.5.2024 passed by the the Special Judge (S.C. / S. T. Act), Sonbhadra passed in Criminal Misc. Application No. 190 of 2024, arising out of Case Crime No. 135 of 2023, under Sections-8/20/29 of N. D. P. S. Act is quashed. The Special Judge (S.C. / S. T. Act), Sonbhadra is directed to pass appropriate orders for temporary custody of the vehicle in question during the pendency of the enquiry or trial in criminal case concerned and is directed to release the vehicle in question subject to furnishing a personal bond and appropriate sureties on an undertaking from the applicant to produce before the court or competent authority as and when required. Order Date :- 25.10.2024 HR