Jakariya vs State Of U.P.
2023 Latest Caselaw 10379 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on :- 11.01.2023
 
Judgment Delivered on :- 10.04.2023
 
Court No. - 65 
 

 
Case :- APPLICATION U/S 482 No. - 12542 of 2022 
 

 
Applicant :- Jakariya 
 
Opposite Party :- State of U.P. 
 
Counsel for Applicant :- Anurag Pandey,Ankit Saran 
 
Counsel for Opposite Party :- G.A. 
 

 
Hon'ble Rajeev Misra,J. 

1. Heard Mr. Ankit Sharan, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application under Section 482 Cr.P.C. has been filed challenging the order dated 18.02.2022 passed by Special Judge (NDPS) Act, Court No.-7, Kanpur Dehat in Criminal Misc. Case No. 697 of 2021 arising out of Case Crime No. 55 of 2021, under Sections 8 and 22, NDPS Act, Police Station-Mossa Nagar, District-Kanpur Dehat whereby the release application filed by applicant seeking release of Truck No. RJ-32 GB 7788 has been rejected.

4. Record shows that in respect of an incident which is alleged to have occured on 18.04.2021, a prompt FIR dated 18.04.2021 was lodged by first informant-opposite party 2, Inspector, Pramod Kumar Verma and was registered as Case Crime No. 0055 of 2021, under Sections 8 and 22, NDPS Act, Police Station-Mossa Nagar, District-Kanpur Dehat. In the aforesaid FIR, two persons namely Jakariya (applicant herein) and Aslam have been nominated as named accused.

5. The gist of the FIR is that on an information received from police informer (Mukhbir), that Truck No. RJ32GB7788 was carrying narcotic substance the police laid a trap. Accordingly, aforesaid Truck was stopped for checking. In the search operation of aforementioned Truck, 31 bags of narcotic substance-cannabis (Ganja) were recovered. Accordingly, two persons accompanying the aforementioned Truck i.e. the named accused were arrested in which the narcotic substance-cannabis (Ganja) was concealed and the transporting vehicle was seized.

6. Subsequently, applicant who alleges himself to be the owner of the disputed Truck filed a release application before court below seeking release of the disputed Truck i.e. Truck No. RJ32GB7788. The release application filed by applicant was rejected by court below, primarily on the ground that the said Truck was being used for illegal transportation of narcotic substance-cannabis (Ganja) and secondly recommendation has been made to the District Magistrate, for confiscation of the disputed Truck vide order dated 18.02.2022 passed by Additional Sessions Judge/Special Judge (NDPS) Act, Court No.-7, Kanpur Dehat.

7. Thus feeling aggrieved by above, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.

Learned counsel for applicant submits that it is an undisputed fact that applicant is the registered owner of the disputed Truck. The document pertaining to the ownership of the Truck were duly filed before court below along with release application which have not been disputed by the prosecution inasmuch as, no finding regarding above has been recorded in the order impugned.

8. It is then contended by the learned counsel for applicant that the release application filed by applicant has been rejected by court below on wholly irrelevant ground. There is no bar in the NDPS Act prohibited the release of his vehicle used for transporting narcotic substance-cannabis (Ganja). He also submits that under the provisions of the NDPS Act no confiscation of the vehicle used for transporting the narcotic substance-cannabis (Ganja) can be made by virtue of the explanation to Section 61 of the NDPS Act.

9. According to the learned counsel for applicant, the issue with regard to the release of goods during the pendency of criminal proceedings now stands crystallized by the judgment of the Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002)10 SCC 283. He has relied upon paragraphs 6, 7, 10, 14, 15, 16 and 17 of the said judgment. For ready reference, the same are re-produced hereinunder:-

"6. 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.

7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under-

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."

The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.

To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

10. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.

14. 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.

15. 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.

16. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may 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.

17. 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."

10. Reference has also been made to the following judgments;-

(i). AIR OnLine 2021 CHH 206, CRMP No. 193 of 2021 (Ali Ahmad Vs. State of Chhattisgarh)

(ii). AIR OnLine 2021 MP 3267, CRR No. 3064 of 2021 (Jeeshanf Siddiqui Vs. State of Madhya Pradesh)

(iii). AIR OnLine 2022 All 316, Criminal Revision No. 3607 of 2021 (Rajdhari Yadav Vs. State of U.P.)

11. Per contra, the learned A.G.A. for State has opposed the present application. Learned A.G.A. submits that the disputed vehicle was even used for illegally transporting narcotic substance-cannabis (Ganja). The same was over and above the commercial quantity. The named accused are real brothers. The act of the applicant along with his brother is in transporting narcotic substance-cannabis (Ganja) over and above, the commercial quantity is not only immoral but also illegal. The same is not conducive for the society. On the above premise, the learned A.G.A. submits that applicant does not deserve any indulgence by this Court. He, therefore, contends that the present application is liable to be dismissed. However, the learned A.G.A. could not dislodge the legal submission urged by the learned counsel for applicant at this stage.

12. Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the issue as to whether the provisions of Section 451 Cr.P.C. are inconsistent with the provisions of NDPS Act is now no longer res-integra.

13. Moreover, the ratio laid down by the Supreme Court in Sunderbhai Ambalal Desai (Supra) also provides for early release of goods in terms of Section 451 Cr.P.C. On the conspectus of above the Court finds that the order passed by court below refusing to release the vehicle of applicant is not only illegal but also arbitrary. By virtue of the explanation to Section 61 of the NDPS Act, a vehicle which has been used for transporting narcotic substance-cannabis (Ganja) cannot be confiscated.

14. Thus for the facts and reasons noted above, the order impugned cannot be sustained. The present application is therefore liable to be allowed by this Court.

15. It is, accordingly, allowed.

16. The impugned order dated 18.02.2022 passed by Special Judge (NDPS) Act, Court No.-7, Kanpur Dehat in Criminal Misc. Case No. 697 of 2021 arising out of Case Crime No. 55 of 2021, under Sections 8 and 22, NDPS Act, Police Station-Mossa Nagar, District-Kanpur Dehat is hereby quashed.

17. Court below is directed to decide the release application of the applicant afresh in the light of observations made herein above as well as the law laid down by the Apex Court as well as this Court as mentioned above within a period of two weeks from the date of the presentation of a certified copy of this order.

Order Date :- 10.04.2023

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