Kamal Bakshi vs State Of U.P. And Another
2019 Latest Caselaw 6259 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 70
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 198 of 2019
 

 
Petitioner :- Kamal Bakshi
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Birendra Kumar Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

1. Heard Sri Diwan Saifulla Khan, Advocate, holding brief of Sri Birendra Kumar Mishra, learned counsel for the petitioner and learned Additional Government Advocate appearing on behalf of the State/opposite party no.1 and perused the record.

2. This petitioner under Article 227 of the Constitution of India has been preferred by the petitioner against the order dated 08.08.2018 passed by Additional Chief Judicial Magistrate, Court No.2, Agra in Case Crime No.119 of 2017, Police Station Saiyan, District Agra, whereby release application dated 24.05.2018 of the petitioner for release of vehicle No.U.P.80 CY9597 has been rejected with the direction to the petitioner to apply for bail.

3. At the time of filing of this petition, by order dated 17.01.2019 two weeks' time was allowed to the learned Additional Government Advocate to file counter affidavit, thereafter by order dated 17.07.2019, two weeks further time was allowed to the learned Additional Government Advocate to file counter affidavit in this case with the observation that on the next date of listing, if counter affidavit is not filed by the State, the case shall not be adjourned, but no counter affidavit has been filed by the State till date.

4. Learned counsel for the petitioner assailing the aforesaid impugned order dated 08.08.2018 submitted that :-

4.1 On 30.04.2017, FIR was lodged by Amar Singh against the driver with regard to accident of his son Anil Kumar and Harendra, s/o Nathuram by Vehicle No. U.P.80 CY9597 on 28.04.2017, registered as Case Crime No.0119 of 2017 at Police Station Saiyan, District Agra. It is submitted that on account of said accident on 28.04.2017 the aforesaid vehicle is involved in Case Crime No.0119 of 2017. On the said date of accident, the opposite party no.2 Dileep Kumar Gupta was the owner of the vehicle.

4.2 It is next submitted that on 10.05.2018, the petitioner has purchased said vehicle from the opposite party no.2 (Dileep Kumar Gupta), thereafter the said vehicle was recovered and seized by the police  on 21.05.2018 from the possession of the petitioner. It is submitted that at the time of seizure of the said vehicle, the petitioner was lawful owner of the same, therefore, on 24.05.2018 a release application was moved by the petitioner before the court of Additional Chief Judicial Magistrate, Court No.2, Agra for release of Vehicle No.U.P.80 CY9597. On the said application dated 24.05.2018 of the petitioner, a report was called for and in turn police of concerned police station submitted report dated 04.06.2018 mentioning that petitioner Kamal Bakshi, s/o Narendra Bakshi is a registered owner of the said vehicle, but learned Additional Chief Judicial Magistrate-II, Agra has wrongly and illegally rejected the release application of the petitioner.

4.3 On the strength of the aforesaid fact, it is submitted by the learned counsel for the petitioner that the impugned order dated 08.08.2018 is not sustainable, as the same has been passed in violation of law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 Supreme Court Cases 283, wherein the Apex Court has held that vehicle should not be detained for more than 15 days to one month in the police station. Relevant paragraphs nos.17, 18. 19, 20 & 21 of the said judgment is reproduced here-in-below:-

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 a 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 the 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 the 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.

19. For articles such as seized liquor also, prompt action should be taken in disposing of it after preparing necessary panchnama. If sample is required to be taken, sample may be kept properly after sending it to the Chemical Analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

20. Similarly for the narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same.

21. However, these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly.

4.4 Further submission is that for release of the aforesaid vehicle, the petitioner cannot be forced to surrender before the court, therefore, the impugned order dated 08.08.2018 is not sustainable and liable to be quashed.

5. Per contra, learned Additional Government Advocate submitted that the incident took place on 28.04.2017, on the date of incident the petitioner was not owner of the vehicle, but the opposite party no.2 was owner of the vehicle who has not moved release application, therefore, there is no illegality in the order dated 08.08.2018.

6. After having heard the learned counsel for the parties, this Court is of the view that as per report dated 04.06.2018 of concerned police station submitted before the court of Additional Chief Judicial Magistrate, Agra, there is no dispute with regard to the fact that on the day of seizure of the vehicle in question and moving release application, the petitioner was the registered owner of the Vehicle No.U.P.80 CY 9597. There is no other claimant of the vehicle, therefore, in view of law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat (supra), vehicle cannot be permitted to remain in the custody of police in the police station.

7. In view of above, the impugned order dated 08.08.2018 passed by Additional Chief Judicial Magistrate, Court No.2, Agra is hereby quashed.

8. The petition under Article 227 of the Constitution of India is allowed.

9. The petitioner is directed to furnish the bank guarantee of Rs.3 lacs and two local sureties within three weeks before the concerned court below alongwith an affidavit of undertaking that the petitioner shall not transfer the said vehicle to any other person. He shall not change the nature and colour of the vehicle in any manner during pendency of case arising out of Case Crime No.119 of 2017. On complying the aforesaid conditions by the petitioner, the concerned court below shall direct the S.H.O. Police Station Saiyan, District Agra, to release the Vehicle No.U.P.80 CY9597 in favour of the petitioner within a week after preparing the panchnama and taking photograph of the vehicle.

Order Date :- 1.8.2019

SKD