Andhra Pradesh High Court - Amravati

Smt. Bindu vs The State Of Andhra Pradesh on 19 February, 2021

Bench: Lalitha Kanneganti

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

 

FRIDAY, THE NINETEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY ONE
: PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
CRIMINAL REVISION CASE NO: 128 OF 2021

  

Between: fer!
Smt Bindu, D/o. Vindhini aged about 47 years residing at madthazhath kardia as
Kunnamangalem, Kuruvattur, Kozhikonda, Kerala .
° Petitioner/Vehicle Owner
AND
1. The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of A.P At
Amaravath through SHO, G.Madugula P. S, Visakhapatnam District
Respondent/Respondents
2. Nejmu Sakib PK, S/o Anwar PK aged about 31 years Kammana, paramba
village, mayanad post, kozikonde District kerala
3. NP Shajahan, S/o.abdul Rasak, aged about 35 years valiyakam,paramba village
kallai post kozikonde district kerala.
4. Mohamad Ismail, S/o. Abdul lathif aged about 30 years Halima village,kuttikatur
post Kozikonde District kerala. (Respondent No. 2 to4 are not necessary to this
petition)
Respondent/Respondent No.2 to 4

Revision filed under Section 397 and 401 of Cr.P.C., praying that in the
circumstances stated in the grounds of the Criminal Revision Case, the High Court may
be pleased to pass orders for the interim custody of two wheeler vehicle bearing
registration No. KL 11 AQ 7788 of Toyoto Innova in favour of the petitioner seized in
pursuant to the Cr. No. 37 / 2019 on the file of the G.Madugula police station,
visakhapatnam

The petition coming on for hearing, upon perusing the Petition and the affidavit
filed in support thereof and upon hearing the argu 9 of SRI KAKUMANU JOJI
AMRUTHA Re obad OR te for titioner, and o BLIC PROSECUTOR for the
Respondent No.1, the ourt made the following. AL
ORDER:

Ren,

THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI CRIMINAL REVISION CASE No.128 of 2021

ORDER:-

This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.) seeking to set aside the order dated 24.12.2020 passed in Crl.M.P.No.215 of 2020 in crime No.37 of 2019 passed by the learned Metropolitan Sessions Judge - Cum- I Additional District and Sessions Judge -- Special Judge for Trial of Offences under NDPS Act, Visakhapatnam and consequently interim custody of Toyoto Innova Silver MCA Metallic bearing registration No.KL 11 AQ 7788 may be

given to the petitioner.

2. The case of the petitioner in brief is:

The subject vehicle was seized by the Police on the allegation that it was involved in transportation of ganja and crime No.37 of 2019 was registered for the offence punishable under Section 20(b)(ii)(c) read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). Pursuant to the seizure of the vehicle, the petitioner approached the Court below by filing a petition under Section 457 Cr.P.C. seeking interim custody of Toyota Innova Silver MCA Metaliic bearing No.KL 11 AQ 7788, but the same was dismissed basing on the judgment of the Hon'ble Apex Court reported in Union of India Vs. Dinesh Kumar Verma! wherein it was held that the vehicle used for conveyance of the narcotic drug has to be confiscated to the State and thus, interim custody cannot be ordered while observing that the vehicle belongs to Kerala State

and observed that if it leaves to Kerala, it will be difficult to secure it

'2005(9) SCC 330

again when it is required. Aggrieved by the same the petitioner is before this Court.

3. Heard Sri Kakumanu Joji Amrutha Raju, learned counsel for the petitioner and learned Additional Public Prosecutor appearing on behalf of the respondent No. 1-State.

4. Learned counsel for the petitioner submits that the petitioner is owner of the vehicle and she is no way connected with the alleged crime. The further submission of learned counsel for the petitioner is that the petitioner hired the vehicle to the accused who disappeared and after coming to know about the seizure of the vehicle, she filed a petition for release of the vehicle before the Court below. He also submits that the subject vehicle is purchased by availing finance and if the same is kept idle for long time it will get damaged and the petitioner will face financial loss.

5. Learned counsel for the petitioner further submits that even if a vehicle is seized under NDPS Act for use of the vehicle in transporting narcotic goods, the owner is entitled for interim custody of the vehicle and this Court has granted interim custody of the vehicles in similar cases after perusal of the judgment rendered in Union of India Vs. Dinesh Kumar Verma (referred supra). Hence, the petitioner may be granted the relief as prayed for.

6. The Court below while passing the order impugned observed that the petitioner failed to explain how the vehicle was taken by someone without her knowledge and considered the contention raised by the learned Additional Public Prosecutor that as the vehicle belongs to the State of Kerala, it would be difficult to secure the same when it is required. The Court below also referred to Section 60 of the

NDPS Act which connotes that the narcotic drug and conveyance

used for carrying the same shall be confiscated to the State, if the offence is proved.

7. At this juncture it is appropriate to extract Section 457 of

Cr.P.C which reads thus:

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.

8. As per Section 457 of Cr.P.C., if the person is known and when there is no dispute about the ownership of the vehicle, the Magistrate may order delivery of the property to him on such conditions as the Magistrate thinks fit.

oR In the case on hand, there is no dispute with regard to the petitioner's ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus:

"(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly.

(2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection

therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, lf{controlled substance,} the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.

10. From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only at the time of convicting, acquitting or discharging the accused. But there is no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is

every likelihood of the vehicle getting destroyed.

11. Taking into consideration the submissions made by the learned counsel for the petitioner and in view of the settled law this Court feels it appropriate to grant interim custody of the vehicle to the petitioner by imposing certain conditions.

12. Accordingly the criminal revision case is allowed and the order dated 24.12.2020 passed in Crl.M.P.No.215 of 2020 by the learned Metropolitan Sessions Judge - Cum- I] Additional District and Sessions Judge -- Special Judge for Trial of Offences under NDPS Act, Visakhapatnam is set aside. The vehicle i.e. Toyota Innova Silver MCA Metalli bearing registration No.KL 11 AQ 7788 is ordered to be given interim custody to the petitioner on condition of her executing a bond for a sum of Rs.5,00,000/- (Rupees five lakhs only) with one

surety for a likesum to the satisfaction of the Metropolitan Sessions

Judge - Cum- | Additional District and Sessions Judge -- Special Judge for Trial of Offences under NDPS Act, Visakhapatnam. The petitioner shall not sell or alienate the subject vehicle or make any changes relating to the physical features of the vehicle till the disposal of the case. The petitioner shall give an affidavit before the Court below undertaking to produce the vehicle as and when directed, till trial ends and that she will not alienate the subject vehicle or make any changes relating to its physical features or that she will not create any encumbrance or charge over the subject vehicle. The vehicle shall remain within the State of Andhra Pradesh.

As a sequel, all the pending miscellaneous applications are

closed.

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