Jagdish Prasad Nai @ Prem vs State Of U.P.
2023 Latest Caselaw 23984 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:174879
 
Reserved on 25th August, 2023
 
Delivered on 30th August, 2023
 
Court No. - 82
 

 
Case :- CRIMINAL REVISION No. - 884 of 2023
 

 
Revisionist :- Jagdish Prasad Nai @ Prem
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Ruksana,Pradeep Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shiv Shanker Prasad,J.

1. Heard Mr. Pradeep Kumar Pandey, learned counsel for the revisionist and the learned A.G.A for the State.

Challenge to the Criminal Revision

2. This criminal revision under Section 397/401 Cr.P.C. is directed against the order dated 30th January, 2023 passed by the Additional Sessions Judge, F.T.C. Court No.16, Mahoba in Criminal Case No. 19 of 2023 (Jagdish Prasad Nai @ Prem Vs. State of U.P.) arising out of Case Crime No. 190 of 2022, under Sections 08/20 of N.D.P.S. Act, Police Station Charkhari, District-Mahoba, whereby the application filed by the revisionist for release of his vehicle No. U.P.-16 AM 0812 (U.P.-16 A.M./0812) make White Swift Desire Car and Vivo Mobile phone, when as a matter of fact the applicant is on bail.

Relevant Case of the Revisionist

3. The revisionist is a hard-working man with limited means of of livelihood. He has been falsely implicated in Case Crime no.190 of 2022, Under Section 08/20, N.D.P.S. Act, Police Station Charkhari, District Mahoba by showing recovery of 50 k.g. 600 grams Cannabis (Ganja) kept in 48 packets from the possession of the revisionist, even though the revisionist is a laborious, peaceful and faithful citizen of the country. The Police has also challaned the revisionist along with his vehicle and mobile phone falsely. Both the things of the revisionist are tool of his job which are necessary for earning his bread and butter in order to maintain number of persons in his family, he is lone earning member of his family. Since prima facie no case is made out against the revisionist, he has been granted bail by a Coordinate Bench of this Court vide order dated 16th December, 2022 passed in Criminal Misc. Bail Application No. 34721 of 2022 (Jagdish Prasad Nai @ Prem Vs. State of U.P. & Another). Threafter the revisionist has filed an application for release of his vehicle No. U.P.-16 AM 0812 (U.P.-16 A.M./0812) make White Swift Desire Car and Vivo Mobile phone before the court below. On 30th January, 2023 the Court below i.e. Additional District Judge, F.T..C.-16, Mahoba has rejected the application of the revisionist. It is against this order that the present criminal revision has been filed.

4. Submissions of the learned counsel for the revisionsit

(i) No contraband has been recovered from the possession of the revisionist and recovery of such contraband shown against revisionist is alleged to have been recovered from the aforesaid vehicle of the revisionist, which is planted by the Police as no such contraband was carried by the revisionist in his car. The necessary ingredients mentioned in Section 50 N.D.P.S. Act, which is mandatory in the facts of the present case, have not been fulfilled by the Police. No sample of the alleged recovered contraband is taken out before the concerned Magistrate. There is no independent witness from which it is established that the alleged recovered contraband was kept in the vehicle of the revisionist. The revisionist has no criminal antecedents to his credit except the present one and in such circumstances this Court has granted bail to the revisionist.

(ii) However, the court below without considering the material evidence available on record and the prima facie finding recorded by this Court while granting bail to the revisionist, has passed the impugned order dated 30.01.2023 in a routine and mechanical manner which is liable to be set aside by this Hon'ble Court, which clearly hit the provisions of Section 451 and 457 Cr.P.C. as the same is mandatory in the facts of the present case.

(iii) The court below while rejecting the application of the revisionist has not recorded any finding as to why the vehicle and mobile of the revisionist could not be released, if the papers of the same are of the revisionist and the same are genuine.

(iv)The Court below has not correctly exercised its power in passing the impugned order, which is perverse, not equitable, affected from surmises and conjunctures and liable to be set aside by this Hon'ble court. He has committed an error of fact and law in not appreciating the fact that the revisionist has no permanent monthly income.

On the cumulative strength of the aforesaid, learned counsel for the revisionist submits that the order impugned passed by the court below cannot be legally sustained and is hereby quashed.

5. On the other-hand, learned A.G.A. has opposed the prayer made by the learned counsel for the revisionist but he could not dispute the submissions made by him.

6. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present criminal revision specifically the order impugned.

7. Under the order impugned, after hearing the parties and persuing the police documents, the Court below has only recorded that it has been mentioned in the case diary that from the Vehicle No. U.P. 16 A.M./0812 White BDI Swift Desire Car 48 packets packed with yellow tape containing 50 kg 600 grams of cannabis (Ganja) was recovered. The said vehicle has been used by the revisionist to carry such a large quantity of Ganja and a mobile phone has also been recovered from the possession of the revisionist. Since the revisionist being the owner of vehicle, is an accused and from whose possession cannabis (Ganja) was recovered. The revisionist has also not submitted any receipt qua mobile phone and he has also been granted bail from this Court. The trial court on the basis of such facts has opined that vehicle and mobile phone of the revisionist are not liable to be released.

8. From the aforesaid finding recorded by the court below, this Court finds substance in the submission made by the learned counsel for the revisionist that the court below has not applied his judicial mind while passing the impugned order and rejecting the application of the revisionist for release of his vehicle and mobile phone. The court below has only accepted the police report and on the basis of such report, it has passed the impugned order, which is per se illegal and in violation of principles of natural justice. The court below has neither recorded its prima facie satisfaction in rejecting the application of the revisionist for not releasing the vehicle and mobile phone of the revisionist after perusing the material available on record nor has considered the prima facie satisfaction recorded by this Court while granting bail to the revisionist.

9. It would be worthwhile to reproduce Sections 451 and 457, which is relevant for coming to the a reasonable conclusions. For ready reference, Sections 451 and 457 Cr.P.C. are being quoted herein-below:

"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.

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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."

10. Section 451 Cr.P.C. 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.

11. The Apex Court while dealing with the similar case in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283 has opined in paragraph nos. 7 and 8 as follows:

"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. The question of proper custody of the seized article is raised in number of matters. In Basavva Kom Dyamangouda Patil Vs. State of Mysore reported in [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."

12. Further in paragraph no. 17, the Apex Court in the case of Sunderlalbhai Ambalal Desai (Supra) has opined as follows:

"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."

13. On overall evaluation and deeper scrutiny of the order impugned as well as the judgment of the Apex Court in the case of Sunderlalbhai Ambalal Desai (Supra) including the provisions of Sections 451 and 457 Cr.P.C., this Court holds that the order impugned passed by the court below cannot be legally sustained and is hereby set aside.

14. The Special Judge (N.D.P.S. Act)/Additional Sessions Judge, F.T.C.-2016, Mahoba is directed to consider and decide the application of the revisionist for release of his above mentioned vehicle and mobile phone afresh, in accordance with the judgment of the Apex Court in the case of Sunderbhai Ambalal Desai (Supra) and the observations made above, by means of a reasoned speaking order, preferably within a period of one month from the date of production of a certified copy of this order after taking into consideration of the material available on record.

15. The present criminal revision is allowed subject to the observations made above. There shall be no order as to costs.

(Justice Shiv Shanker Prasad)

Order Date :- 30.8.2023

A Gautam-Sushil/-