Jharkhand High Court
Bindu Choudhary vs The State Of Jharkhand on 13 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.723 of 2020
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Bindu Choudhary ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. Rishi Pallav, Adv.
For the State : Mr. Ravi Prakash, A.P.P.
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The matter was taken up through Video Conferencing. Learned counsel
for the parties had no objections with it and submitted that the audio and
video qualities are good.
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07/13.07.2021: The present revision application has been filed against the
impugned order dated 16.06.2020, passed by the learned Sessions Judge-
cum-Special-Judge (NDPS), Chatra in Miscellaneous Criminal
Application No.899 of 2019, whereby and whereunder the petitioner has
preferred an application for release of the vehicle (TVS Apache RTR
160 BS-IV) bearing registration no.JH-13E-9973, Chassis
No.MD634BE40J2A56708, Engine No.BE4AJ2X54544 seized in
connection with Kunda P.S. Case No.19 of 2019 corresponding to NDPS
Case No.79 of 2019, for the offence under Sections 18, 20(B) and 22 of
the NDPS Act. Now, the case is pending in the court of the learned
Principal District & Sessions Judge-cum-Special Judge (NDPS), Chatra.
It is submitted by the learned counsel for the petitioner that the
release of the said vehicle has been rejected on the ground that the
vehicle has been used in transportation of opium by the accused person.
From perusal of the records, it appears that the release of
the vehicle has been refused only on the ground that the vehicle, in
question, has been used for commission of crime under the NDPS Act. It
is settled principle of law that mere allegation of the commission of
crime is not a ground for refusal to exercise the power under Section 451
of the Cr.P.C., rather the provision is interim in nature and is meant for
that purpose. The Hon'ble Apex Court in its judgment reported in 2002
(10) SCC 283 in the case of Sunderbhai Ambalal Desai v. State of
Gujarat, has settled the issues with certain directions. The relevant
paragraphs of the said judgment are quoted hereinbelow:-
"5. Section 451 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 thinks necessary;
(3) if the property is subject to speedy and natural decay, to
dispose of the same.
7. In our view, the powers under Section 451 CrPC 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 panchnama before handing over possession of
the 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
property 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.
12. For this purpose, 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 panchnama 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
CrPC. The bond and security should be taken so as to prevent the
evidence being lost, altered or destroyed. The court should see that
photographs of 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 CrPC 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 be kept in police
custody, it would be open to the SHO 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 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 purposes of investigation and identification. For currency notes,
similar procedure can be followed.
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 a 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 the 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 the 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 of it after preparing necessary panchnama. If
sample is required to be taken, sample may be 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 CrPC 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."
In view of above discussion made and considering the above
judgment, impugned order dated 16.06.2020, passed by the learned
Sessions Judge-cum-Special Judge (NDPS), Chatra in Miscellaneous
Criminal Application No.899 of 2019 is, hereby, set aside and the matter
is remitted back to the concerned court below and the lower court is
directed to pass an appropriate order within two weeks from the date of
receipt/production of a copy of this order. The court below is directed to
verify the necessary documents and imposed necessary condition. For
protecting the evidentiary value of the vehicle panchnama etc. may be
prepared. For protecting the power of confiscation, the owner of the
vehicle may be bounded by necessary indemnity bond, solvent security
etc.
With above observations and directions, the present revision
being Criminal Revision No.723 of 2020 stands disposed off.
(Rajesh Kumar, J.)
Amar/-
