Ravi Prasad v. State of Uttarakhand Anr

The brief facts as alleged in the F.I.R. are that on 31.12.2024, an F.I.R. was lodged by the Sub-Inspector Sunil Singh Dhanik. According to the complainant/Sub- Inspector, he and his teammates conducting routine checks at Hathidangar Samshan Tiraha at around 22:30 hours. During operation, they flagged down a grey Honda Amaze (Registration No. UK-06K.A.-1864) driven by one Ganesh Prasad, who is the younger brother of the Applicant. Upon inspection of the vehicle’s dashboard, a red cloth bag containing a cylindrical black substance suspected to be charas was recovered. The contraband was weighed and its net weight was found to be 352 grams. Ganesh Prasad allegedly admitted to possession the said contraband for personal consumption. Following the procedures under the NDPS Act, the accused was arrested and vehicle was seized. The Applicant is the elder brother of the accused and the said seized vehicle belongs to the present applicant. There has been non- compliance of mandatory provisions of NDPS Act including Sections 42, 50 & 52A and the allegedly Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr. 2 Ashish Naithani J. recovered contraband is less than the small quantity and no independent witness was joined in the alleged recovery of contraband. The applicant is the sole owner of the vehicle, which was intercepted and seized connection with the aforesaid crime registered against the Applicant under NDPS Act and is now in custody of police. The Applicant possesses a valid registration certificate and Insurance of the said vehicle.

3. The accused in the aforesaid FIR, therefore, moved an application seeking his release on bail before the Hon’ble High Court of Uttarakhand at Nainital, which was allowed vide order dated 16.01.2025, thereafter, the Applicant filed an application for release of the said vehicle, but learned court below vide order dated

28.03.2025 rejected the said application.

4. The order dated 28.03.2025 passed by the learned court below is arbitrary and improper for the reason that in view of Section 51 of the N.D.P.S. Act, the provisions of the B.N.S.S. would be applicable in cases of warrants, arrests, searches and seizures and in view of Section 497(1) read with 503 of BNSS, the vehicle ought to have been released in custody of its registered owner, Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr. 3 Ashish Naithani J. therefore, the order dated 28.03.2025 deserves and is liable to be set-aside.

5. Heard learned counsel for the parties.

6. It is contended by learned counsel for the Applicant that the vehicle has been lying unattended at the police station compound and the same is exposed to the vagaries of the weather and miscreants, till the conclusion of trial, it will result into vehicle get damaged and reduce its value substantially which will not benefit the state or the owner. There is no use of keeping vehicle there in police station and the said vehicle be released in his favour in view of Section 451 of the CrPC.

7. In support of his contention, he relied upon the judgment rendered by the Hon’ble Apex Court in the case of “Sunderbhai Ambalal Desai Vs. State of Gujarat”, reported in (2002) 10 SCC 283.

8. He further relied upon the judgment of Hon’ble High Court of Uttarakhand in the judgment of “Abhijeet Kumar vs. State of Uttarakhand”, 2019 SCC Online UTT 265 and the judgment of Hon’ble Supreme Court in the case of “Bishwajit Dey vs. The State of Assam” Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr. 4 Ashish Naithani J. (Criminal Appeal No.87 of 2025) delivered on 07.01.2025.

9. Relying upon these cases, learned counsel for the Applicant submits that in view of Section 451 CrPC and as the orders can be passed for release of the property pending conclusion of the trial, if the property is subject to speedy and natural degrade and if otherwise, it is expedient, so to do, the release application should have been allowed. This impugned order suffers from illegality and is liable to be quashed.

10. Per contra, learned State counsel poses his formal objection in this regard.

11. I have gone through the judgment and order relied upon by learned counsel for the Applicant rendered by the Hon’ble Apex Court along with provisions of Sections 451 and 457 of CrPC.

12. In the case of ‘Sunderbhai Ambalal Desi’ (supra), the Hon’ble Apex Court has held as under:- “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; Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr. 5 Ashish Naithani J. 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.”

13. The issue of release of vehicle involved in transportation of NDPS substance also cropped up before the Hon’ble Apex Court quite recently in Criminal Appeal No.87 of 2025, “Bishwajit Dey Vs. State of Assam” decided on 07.01.2025, in which case the Hon’ble Apex Court has gone into the provisions of Section 60 of NDPS Act in great detail with the help of various case laws and came to this conclusion that in the absence of any specific power under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke general power under Sections 451 and 452 for release, pending decision in the criminal case; the trial court has discretion to release the vehicle in the interim. However this power would have to be exercised, in accordance with law, in the facts and circumstances of each case.

14. For ready reference, para nos.22 and 23 of ‘Bishwajit Dey’ (supra) are quoted hereinbelow:- Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr. 6 Ashish Naithani J. “22. This Court is further of the opinion that there is no specific bar/restriction under the provisions of the NDPS Act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance in the interim pending disposal of the criminal case.

23. In the absence of any specific bar under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for return of the seized vehicle case. pending Consequently, the trial Court has the discretion to release the vehicle in the interim. However, this power would have to be exercised in accordance with law in the facts and circumstances of each case.” final decision of criminal The Hon’ble Apex Court has allowed the appeal with a direction to the trial court to release the vehicle in question in the interim supurdagi.

15. Thus, the impugned judgment and order dated

28.03.2025 passed by learned Special Sessions Judge cannot sustain and deserves to be set aside and is accordingly set-aside.

16. Thus the C-528 Application is allowed. The vehicle in-question is directed to be released in favour of the Applicant after executing personal bond of `50,000/- and two local sureties, each of the like amount, to the satisfaction of the court concerned along with an undertaking that ownership of the vehicle would not be altered, in any condition, whatsoever, and he shall Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr. 7 Ashish Naithani J. produce the vehicle either before the court concerned or before such other Authority as the Court may direct. Akash (Ashish Naithani, J.)

07.07.2025 Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr. 8 Ashish Naithani J.