Himachal Pradesh High Court

Narcotics Control Bureau Unit At ... vs Sangeeta Bhardwaj on 29 November, 2021

Bench: Sandeep Sharma

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                   ON THE 29TH DAY OF NOVEMBER, 2021
                                     BEFORE
                HON'BLE MR. JUSTICE SANDEEP SHARMA
                          CR. REVISION NO. 302 OF 2021




                                                                    .
    Between:-





    NARCOTICS CONTROL BUREAU UNIT AT MANDI,
    DISTRICT MANDI, HP THROUGH INTELLIGENCE OFFICER
                                           ... PETITIONER





    (BY MR. ASHWANI PATHAK, SENIOR ADVOCATE
    WITH MR. SANDEEP SHARMA, ADVOCATE)
    AND
    MUNISH KUMAR





    SON OF SH. HARI RAM
    RESIDENT OF VILLAGE WAH DHAR (BASA),
    P.O. GOHAR, TEHSIL CHACHIOT,
    DISTRICT MANDI, H.P.

    PRESENTLY IN JUDICIAL LOCK-UP
    IN SUB JAIL, MANDI, H.P.

                                                               . RESPONDENT
    (EX PARTE)

    Whether approved for reporting:


    This petition coming on for orders this day, the court passed the following:
                                    O R D E R

Instant Cr. Revision petition filed under S.397 CrPC, lays challenge

to order dated 6.10.2021, passed by learned Special Judge, Mandi,

District Mandi, Himachal Pradesh in Cr. MA No. 123 of 2019, whereby an

application having been filed by the respondent for release of vehicle in

Crime No. 26, dated 28.5.2019, registered at NCB Mandi, under S. 20 of

the Narcotic Drugs and Psychotropic Substances Act (hereinafter, 'Act')

came to be allowed.

2. Precisely, the facts of the case, as emerge from the record, are

that a criminal case under the Narcotic Drugs & Psychotropic Substances

Act (hereinafter, 'Act') came to be lodged at the behest of Narcotics

Control Bureau (hereinafter, 'Bureau') against the respondent-accused

(hereinafter, 'accused') in the court of learned special judge, Mandi,

District Mandi, Himachal Pradesh against the petitioner-accused

(hereinafter, 'accused'). During the pendency of the trial/case before

learned trial Court, accused filed an application for release of vehicle

allegedly used in the transportation of the contraband. Learned Special

judge vide order dated 6.10.2021, allowed the application and ordered

that the Tata Tiago vehicle bearing registration No. HP-32A-4988 be

released in favour of respondent alongwith documents and keys after

retaining copies of documents, subject to furnishing of Sapurdari bond in

the sum of Rs. 7.50 Lakh with one surety in the like amount to the

satisfaction of any Magistrate at Mandi, undertaking to produce the

vehicle as and when called upon to do so, not to charge or encumber the

vehicle during trial and not to alienate the vehicle to any other person

during the pendency of the trial.

3. Being aggrieved and dissatisfied with the impugned order,,

petitioner NCB, at whose instance, case came to be lodged, has

approached this court in the instant proceedings, praying therein to set

aside the impugned order.

4. Despite service none has come present on behalf of the

respondent, as such, this court is compelled to decide the case at hand,

on the basis of material available on record.

5. I have heard learned counsel for the petitioner and gone

through the record.

6. Learned senior counsel for the petitioner, while terming

impugned order to be totally contrary to law, contends that under S.60 of

the Act, vehicle used in carrying /transporting any narcotic drug/

substance/ prohibited drug cannot be ordered to be released till the

disposal of the case. He further submits that once there is ample evidence

available on record that the respondent himself was involved in the

incident and was found carrying commercial quantity of contraband in the

vehicle sought to be released, there was no occasion, if any, for learned

court below to accede to the request made on behalf of the respondent.

7. Having heard learned counsel for the petitioner and perused the

material available on record, this court finds that the vehicle bearing

registration No. HP-32A-4988 (Tata Tiago) being driven by the

respondent-Manish Kumar was apprehended by the Bureu allegedly

transporting commercial quantity of contraband prohibited under the Act.

It is not in dispute that the vehicle is owned and possessed by the

respondent, who at present is behind the bars. Since the case stands

registered against the respondent alongwith other accused, Jagdish and

trial is under process, respondent being lawful owner of the vehicle, as

detailed herein above, made application for release of the vehicle, which

prayer of his came to be resisted by the petitioner on the ground that the

vehicle in question can be again used by the accused for similar offence.

8. As has been taken note herein above, respondent is behind

bars, as such, apprehension expressed by the petitioner is baseless.

Record also reveals that learned court below before passing order on

application, called for record and found that the vehicle belongs to the

respondent, but since considerable time is likely to be consumed in

conclusion of the trial, learned court below, found it expedient to release

the vehicle, subject to furnishing of Sapurdari bonds in the sum of Rs.7.50

Lakh with one surety in the like amount to the satisfaction of any

Magistrate in Mandi. Learned court below, while placing reliance upon

judgments passed by various courts, including this Court, though

proceeded to allow the application and ordered release of vehicle but

recently this court, also had an occasion to deal with the issue in question

incase titled as Narcotics Control Bureau vs. Sangeeta Bhardwaj, Cr.

Revision No. 249 of 2020 decided on 29.7.2021, relevant paras of which

are reproduced herein below:

"8. Before ascertaining the correctness of the submissions made by learned counsel representing the petitioner-NCB, it would be apt to take note of the provisions contained under Section 60 of the Act, herein below:-

"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.--2(1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has

been committed, shall be liable to confiscation.

(2) Any narcotic drug or psychotropic substance 3 [or controlled substances] lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance 3 [or controlled substances] which is liable to

confiscation under subsection (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance 3 [or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any,

of such receptacles or packages shall likewise be liable to confiscation. (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 3 [or controlled substances], or any article liable

to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself,

his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use."

9. Perusal of aforesaid provisions of law though clearly reveals that conveyance used in carrying any narcotic drug or psychotropic substance is liable to confiscation in terms of provisions contained in sub-section (1) or sub section (2) of Section 60, unless the owner of the animal or conveyance proves that it was so used without his/her knowledge or connivance of the

owner himself, his agent, if any, and the person-in-charge of the animal or conveyance had taken all reasonable precautions against such use. Though, in the case at hand, this Court finds that court below while ordering for release of the vehicle has not bothered to record the reasons, if any, assigned by the petitioner qua the involvement of her vehicle in the offence but yet same can

be gathered from the pleadings adduced on record by the petitioner- NCB. Petitioner-NCB in the petition at hand itself has stated that the vehicle was though owned by respondent Sangeeta Bhardwaj, but had handed over the

same to main accused Kuldeep on the basis higher purchase agreement. It has been averred that as per higher purchase agreement, sum of Rs. 16,200/- per month was being paid by main accused Kuldeep against the loan installment. Since it stood established on record that vehicle allegedly used by main

accused for transporting the prohibited drugs of the narcotic substance was given by respondent Sangeeta Bhardwaj on higher purchase agreement, it can be safely inferred/concluded that original owner of the vehicle involved in the

alleged in the incident had no intimation that vehicle given by her on higher

purchase agreement is/was being used for transporting prohibited narcotic substance. Once vehicle in question on account of higher purchase agreement was in possession and control of main accused Kuldeep, it cannot be said that

original owner i.e. respondent had not taken reasonable precautions against unauthorized use of the vehicle.

10. Leaving everything aside, this court after having carefully perused the

provisions contained under NDPS Act with regard to confiscation of illicit drugs ,substances, plants, articles and conveyances finds that though the

narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plaint, materials, apparatus and utensils in respect of

which or by means of which such offence has been committed are liable to be confiscated alongwith any animals or conveyance used in carrying/transporting any narcotic drugs or psychotropic substance or any article in terms of provisions of sub section (1)or sub-section (2), but questions remains that at what stage order with regard to confiscation, which ultimately required to be passed by trial Court under Section 63 of the Act, shall be passed. Though, in terms of section 60 of the Act any psychotropic substance, as detailed in sub-section (i) and (ii) of section 60 is liable to be

confiscated alongwith conveyance used for transportation immediately after its recovery, but order of confiscation, if any, can only be passed when Court arrives at a definite conclusion that article seized under the Act is liable to be confiscated under Sections 60, or section 61 and section 62 and, if it decides that the articles is so liable, it may order confiscation accordingly.

11. In the case at hand, learned senior counsel representing the petitioner was unable to point out order, if any, of confiscation as provided under Section 63 of the Act passed by the competent court of law. Sub-clause 2 of Section 63

further provides 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. It has been further provided in the

aforesaid provision of law that if any such article or thing, other than a narcotic drugs, psychotropic substances,(controlled substance), the opium poppy, coca plant or cannabis plaint 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 can

direct it to be sold.

12. Since in the case at hand respondent specifically set up a case before the court below that she had handed over the vehicle involved in the incident

being lawful owner to main accused Kuldeep on higher purchase agreement and same was being misused by Kuldeep without her knowledge, it would be too premature to conclude complicity, if any, of the vehicle in the alleged

incident. Otherwise also, if it is presumed at this stage that vehicle owned by respondent was misused by main accused Kuldeep, by transporting prohibited

narcotic substance, even then opportunity is required to be provided to rightful owner to prove that unauthorized use of the vehicle by the main

accused was not in her knowledge. Since aforesaid question/issue can only be raised/decided in the trial, confiscation of the vehicle in terms of Section 60 of the Act prior to conclusion of the trial, cannot be ordered at this stage when charges are yet to be framed.

13. Hon'ble Apex Court in case titled Sunderbhai Ambalal Desai vs. State of Gujarat, AIR 2003 Supreme Court 638, which have been otherwise taken note by learned court below has specifically dealt with the power under Section 451 Cr.P.C exercised by the Court while dealing with the issue of disposal of

seized articles. In the aforesaid judgment, Hon'ble Apex Court has categorically held that power under Section 451 Cr.P.C. should be exercised expeditiously and judiciously since it would serve the various purposes.

14. At this stage, it would be profitable to take note of para No. 7 to 20 of aforesaid judgment herein:-

"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 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."

9. 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.

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

11. With regard to valuable articles, such as golden or sliver ornaments or articles studded with precious stones, it is submitted that it is of no use to

keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.

12. For this purposes, if material on record indicates that such articles

belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:-

(1) preparing detailed proper panchanama of such articles: (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.

13. 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 case, where such articles are not handed over either to the

complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SIIO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.

Vehicles

15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are

seized by taking appropriate bond and the guarantee for the return of the

said vehicles if required by the Court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is

seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

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 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.

19. 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.

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."

15. In para-20 of aforesaid judgment, which is reproduced hereinabove, Hon'ble Apex Court has specifically held that for Narcotic drugs also procedure under Section 451 Cr.P.C, should be followed by recording evidence and disposal. It has been further held in the aforesaid judgment that

no useful purpose would be served by keeping seized vehicle at the police station for a long period. It is for the Magistrate to pass appropriate order immediately by taking personal bond and guarantee as well as security for return of the said vehicle, if required at any point of time.

16. Co-ordinate Bench of this Court in case titled Ashok Kumar versus State of Himachal Pradesh, 2008(2) Shim. LC.452 while placing reliance upon the aforesaid judgment held that once petitioner undertakes to produce the

vehicle before the Court as and when required, prayer for release of vehicle should be allowed. Hon' ble Apex Court in Rajendera Prasad vs. State of Bihar and another, (2001)10 SCC 88, has held that custody of vehicle should be entrusted temporarily to its registered owner during the pendency of the

trial. Their Lordships have held as under:-

"We are not deciding the question as to the title of the vehicle in dispute nor the correctness of the rival versions regarding the transactions relating to the vehicle. We do not want the vehicle to

remain in the compound of the police station exposed to heat and

cold because the automobile is likely to be lost to all in such situation. To avert this situation, we are inclined to entrust it temporarily to the appellant who is the ostensible name-holder in the registration certificate. The custody of the vehicle with the appellant will be on behalf of the court and this arrangement is

only till the stage when the court passes the order regarding disposal of the property on conclusion of the trial".

9. Careful perusal of judgment supra, which is based upon the

various judgments passed by Hon'ble Apex Court and other constitutional

Courts, reveals that power under S. 451 CrPC, while dealing with issue of

seized articles should be exercised expeditiously and judiciously since it

would serve various purposes. It has been categorically held that no

useful purpose would be served by keeping seized vehicle at Police

Station for a long period and vehicle can be ordered to be released by

magistrate by taking personal bond and security to return the vehicle if

required at any point of time.

10. In the instant case, impugned order clearly reveals that learned

court below, while ordering release of the vehicle, has directed the

respondent to furnish Sapurdari bonds of Rs.7.50 Lakh with one surety in