Ashok Upadhyay v. State of U.P.), Special Case No
Case Details
Neutral Citation No. - 2024:AHC:190802 Court No. - 86 Case :- CRIMINAL REVISION No. - 6132 of 2024 Revisionist :- Ashok Upadhyay Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sanjay Singh Sengar Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
Legal Reasoning
1. Heard Sri Sanjay Singh Sengar, learned counsel for the revisionist and learned A.G.A. for the State-respondent and perused the material available on record. 2. The instant criminal revision has been preferred against the order dated 06.11.2024 passed by Special Judge, N.D.P.S. Act/Additional Sessions Judge (F.T.C.), Mahoba in Criminal Misc. Case No. 179 of 2024 (Ashok Upadhyay Vs. State of U.P.), Special Case No. 746 of 2023, arising out of Case Crime No. 173 of 2023, under Section 8/20 of N.D.P.S. Act and Sections 419 & 420 of IPC, Police Station Shri Nagar, District Mahoba. 3. Vide impugned order dated 06.11.2024 passed by learned Special Judge, N.D.P.S. Act/Additional Sessions Judge (F.T.C.), Mahoba has dismissed the application filed by the applicant/revisionist for release of Mahindra Bulero bearing registration no. UP-82-V 9117. 4. According to the prosecution case police team headed by S.H.O. Praveen Kumar Singh, Police Station Shri Nagar, District Mahoba on 08.09.2023 intercepted the Mahindra Bulero bearing registration no. UP-82-V 9117 around 16:00 hours which was moving in suspicion circumstance, during vehicle checking the said vehicle was stopped in process of fleeing away while noticing the police team. Four persons were sitting in the vehicle who confessed that in vehicle dry ganja is kept. On search of vehicle two plastic bags containing dry ganja total weight of 61 kilogram 900 gram were recovered and weight on the spot. Thereafter vehicle was seized on charge of transporting the contraband in illegal manner and the persons found in the vehicle were made accused in the case. 5. Learned counsel for the revisionist submits that the revisionist was neither named as accused in the F.I.R. nor was implicated during investigation in this case. His vehicle has been seized by the police on charge of transporting the contraband at the instance of accused persons who were sitting therein. Learned counsel for the revisionist further submits that the revisionist is the owner of the vehicle which is lying in the campus of police station Shri Nagar in unattended condition and under open sky since 08.09.2023 for more than a year; its serviceability, value and utility is bound to deteriorate day by day while detaining the same at police campus. No useful purpose of law would be served on keeping the vehicle in such unattended position until conclusion of trial. Learned counsel for the revisionist next submits that revisionist sold the vehicle to one Pawan Kushwaha who is co- accused in this case, but due to non obtaining of NOC the process of transfer could not be effected and the vehicle is still lying in the name of revisionist as its registered owner and the revisionist has no information that vehicle was being used in transportation of illegal contraband and after selling the same to the co-accused Pawan Kushwaha he was not aware of its day to day use. However, he further submitted that no confiscation proceedings are pending in respect of vehicle before competent authority, he undertakes to abide by the conditions imposed by the court in case of release of vehicle pursuant to order of this Court. Learned trial court has dismissed the release application on placing reliance on F.I.R. version and has not looked into the grounds taken in release application in proper manner, therefore, the impugned order should be set aside and the vehicle may be released in favour of revisionist under section 451 of Cr.P.C. 6. Per contra, learned A.G.A. submitted that huge commercial quantity of ganja was recovered from the vehicle and his release has been sought by the revisionist on the ground of being its registered owner. The vehicle is liable to be confiscated under the Act by competent authority, there is no illegality in the order impugned which has been passed by the trial court. 7. Learned counsel for the revisionist place reliance judgment of Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat AIR 2003 SC 638 wherein Hon'ble Court considered the scheme an ambit of provisions for release of case property under sections 451 and 457 of Cr.P.C. which are seized in connection with some offence the Hon'ble Apex Court observed the same in para 4 to 7 are quoted herein below:- "4. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which read thus-
Decision
"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 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." 5. 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. 6. It is submitted that despite wide powers proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody. 7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation. 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles." 8. Hon'ble Court further observed with regard to vehicles which are ceased in connection with some offence and lying in police custody are quoted herein below:- "15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. 16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. 17. In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared." 9. Accordingly, Hon'ble Supreme Court in Sunderbhai Ambalal Desai (Supra) supports the notion that vehicles should not be kept idle in police custody for extended periods, the Court emphasised the need for prompt action to prevent the owner from suffering any loss due to disuse of vehicle, the provisions of Section 401 Cr.P.C. are not inconsistent with N.D.P.S. Act, as stated in Section 51 of NDPS Act, which allows for application of Cr.P.C. provisions to the extent that they do not conflict with the provisions of N.D.P.S. Act. 10. Section 52A of N.D.P.S. Act provides as under:- "[52A. Disposal of seized narcotic drugs and psychotropic substances. (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which 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 narcotic drug or psychotropic substance 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 narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances 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 narcotic drugs or psychotropic substances in any proceedings under 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 such drugs or substances 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 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence]." 11. Section 60 of N.D.P.S. Act provides for liability of illicit drugs, substances, plants, articles and conveyances to confiscation which may be read as under:- "60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.-l[(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 2[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 2[or controlled substances] which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance 2[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 2[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." 12. Section 63 of N.D.P.S. Act provides for procedure making confiscation which reads as under:- "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, 2 [controlled substance,] the opium poppy, coca plant or 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. 3[***]" 13. Under provisions of Sections 60 and 63 of N.D.P.S. Act the court trying the offence under the Act shall decide whether any article or thing seized is liable to confiscation under section 60 or section 61 or section 62 of N.D.P.S. Act whether the accused is convicted or acquitted or discharged. It implies that the court can pass a confiscation order after conclusion of trial for discharge of accused as the case may be. 14. In present case there is nothing on record that any proceeding under the Act for confiscation of vehicle was pending before the court below or any report for confiscation of vehicle has been given by S.H.O. concerned. In the impugned order it is stated that as per report dated 24.09.2024 received from the office of District Magistrate, no proceeding for confiscation of vehicle is pending. The allegation is that the accused persons were transporting huge quantity of dry ganja by the said vehicle by changing its number plate. Revisionist is not named in the F.I.R and he is registered owner of the said vehicle. The learned trial court dismissed the release application only on the ground that huge quantity of ganja was being transported by the vehicle. However, the relevant provision of confiscation and release of vehicle under the Act and provision of disposal of case property in exercise of power under Section 451/457 Cr.P.C. were not taken into consideration. The judgment of Hon'ble Supreme Court in Sunderbhai Ambalal Desai (Supra) an implicit on issue that there is no legal embargo any vehicle seized by the police in connection with an offence should be released in temporary custody of a person entitled to its custody in order to avoid any further damage, loss or deterioration in the vehicle. This impugned order cannot be sustained as it is vitiated by legal error. The impugned order passed by learned Special Judge, N.D.P.S. Act/Additional Sessions Judge (F.T.C.), Mahoba is set aside and consequently the revision deserves to be allowed. 15. Learned Special Judge, N.D.P.S. Act/Additional Sessions Judge (F.T.C.), Mahoba is directed to pass an appropriate orders in release of vehicle (Mahindra Bulero bearing registration no. UP- 82-V 9117) in temporary custody of the revisionist on condition of his furnishing appropriate personal and surety bonds to its satisfaction of undertaking from the revisionist to provide vehicle as and when required by the court or any competent authority during or after conclusion of trial. The some other conditions may also be imposed by the learned Special Judge, N.D.P.S. Act/Additional Sessions Judge (F.T.C.), Mahoba to ensure production of vehicle as provided in the judgment of Sunderbhai Ambalal Desai (Supra). 16. Accordingly, the revision stands allowed. Order Date :- 4.12.2024 Vikram