Allahabad High Court
Subhash vs State Of U.P. And Another on 27 March, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- APPLICATION U/S 482 No. - 42061 of 2022
Applicant :- Subhash
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Santosh Kumar Gupta,Durga Prasad
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
By moving this application under section 482 Cr.P.C., though the prayer was made to quash the entire proceeding of the Criminal Misc. Case No. 643 of 2022, Subhash Vs. State of U.P., arising out of case crime no. 251 of 2022, State Vs. Karan but a supplementary affidavit has been filed by the learned counsel for the applicant with prayer to set aside order dated 3.11.2022 and to release the vehicle involved in above case crime number.
It is submitted by learned counsel for the applicant that the applicant is neither named in the FIR, nor he has been apprehended by the police with the vehicle nor charge sheet has been filed against him. There is no criminal history to his credit. The motorcycle said to be used in the offence belongs to him. He is the owner of the motorcycle no. U.P.27AM 0457 having all valid documents. This vehicle was borrowed by the accused Karan son of Badanpal from him who has been apprehended by the police with one kg black material concealed in the left side of his pant riding on this motorcycle. Karan has been chargesheeted under section 8/18 of NDPS Act. He has been released on bail but the vehicle /motorcycle no.U.P.27AM 0457 is still stationed at police station. He moved a release application before the trial court also but trial court rejected his application on 3.11.2022, hence,prayer is made to set aside the order dated 3.11.2022 and released the vehicle no. U.P.27AM 0457 in his favour.
Prayer has been opposed by learned A.G.A. and has been submitted that the motorcycle is the case property, hence, it cannot be released in favour of the applicant.
Admittedly, the vehicle has not been confiscated by the police.
The vehicle in question is prayed to be given in temporary custody of the applicant, the owner of the vehicle, till the disposal of the suit.
If we go through the NDPS Act, it is silent about the interim custody of the vehicle.
While, sections 451 and 457 of Cr.P.C. speak that the custody of the property can be given during pendency of the trial. As per Section 51 of NDPS Act, provision of Cr.P.C. 1973 shall apply to the provision of NDPS Act, in so far as they are not inconsistent with the provision of that Act. In NDPS Act, there is no provision for interim release of the vehicle and there is no provision for debarring the release of the vehicle seized under the Act during trial. Thus the provision of section 451 Cr.P.C. cannot be said to be inconsistent with any specific provision under NDPS Act.
As per section 451 of Cr.P.C. during inquiry or trial, the court can make such order as it thinks fit for proper custody of such property pending conclusion of inquiry or trial.
The land mark judgment related to the disposal of the seized vehicle and article is Sunderbhai Ambalal Desai Vs. State of Gujrat, 2003 (1) RCR (Crl.) 380 whereby the Apex Court held that there shall be no use of keeping the seized vehicle in police station for a long period and direction was issued for Judicial Officers to exercise their powers under section 451 Cr.P.C. expeditiously and judiciously and entrusted interim custody of the articles and the vehicles seized to the owner of the property.
In the present case also the vehicle motorcycle no. U.P.27AM 0457 of the applicant is parked at police station concerned since 16.6.2022. When the vehicle is parked unattended, its valuable parts are taken away or stolen. It occupies a large space causing inconvenience to the police department and if during whole trial the vehicle is kept in open, it would specifically deteriorate and if the court finally finds it a case of acquittal and the vehicle not being used in offence or if being used in offence without the knowledge of its owner, the owner will have to collect only scraps of the vehicle. Thus, nobody is going to be benefitted, if the vehicle remains parked totally unattended at the police station. Admittedly, the applicant has not been chargesheeted in the case, thus, it is not proved that the vehicle was being used in the offence within the knowledge of the applicant, so in the opinion of the court, the vehicle of the applicant needs to be released in his favour during trial. The order of the trial court is legally unsustainable, hence, the impugned order of the trial court dated 3.11.2022 is quashed.
Let the vehicle be released in favour of the applicant, the owner of the vehicle no. U.P.27AM 0457 subject to the production of all the necessary documents on furnishing a personal bond of Rs. 50,000/- and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions.
1. The applicant shall not dispose of the vehicle during pendency of the case.
2. The applicant shall not change the nature of the vehicle during pendency of the case.
3. The applicant shall produce the vehicle before the court concerned as and when directed by the court at his own expenses.
The application u/s 482 Cr.P.C. is hereby allowed.
Order Date :- 27.3.2023
Gss
