Jharkhand High Court

Nazma Khatoon vs The State Of Jharkhand on 21 September, 2021

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                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 758 of 2021
             Nazma Khatoon, aged about 40 years, Wife of Md. Khalil, Resident of
             Bandhugora, Taj Nagar, Dobo, P.O. Kopali, P.S. Chandil, District- Seraikela-
             Kharsawan                                          ... Petitioner
                                      -Versus-
             The State of Jharkhand                             ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. P.S. Dayal, Advocate For the Opposite Party-State : Mr. Ravi Prakash, Spl.P.P.

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03/21.09.2021. Heard Mr. P.S. Dayal, learned counsel for the petitioner and

Mr. Ravi Prakash, learned Spl. P.P. for the opposite party-State.

2. This criminal miscellaneous petition has been taken through Video

Conferencing in view of the guidelines of the High Court taking into account

the situation arising due to COVID-19 pandemic. None of the parties have

complained about any technical snag of audio-video and with their consent

this matter has been heard on merit.

3. The petitioner has filed this petition for quashing the order dated

18.02.2021 passed by the learned Sessions Judge, Chaibasa in Misc. Cr.

Application No.12 of 2021 by which petitioner's application for grant of

interim custody of her Toyota Innova vehicle bearing registration No. JH-

05BG-8311 seized in connection with Chakradharpur P.S. Case No.81 of

2020, registered under Sections 467, 468, 471, 420 of the Indian Penal

Code and sections 20, 22, 25 of the Narcotic Drugs and Psychotropic

Substance (NDPS) Act has been rejected.

4. The case was registered on the basis of written report of Kumar

Prabhat Ranjan, A.S.I., Chakradharpur Police Station stating therein that on

27.07.2020, informant along with patrolling party proceeded to Pawan

Chowk, Chakradharpur started vehicle checking in light of declared Shahidi

Diwas by Maoist at 03:10 A.M., where, they saw one vehicle was coming

from Sonua More, which was parked near a Hero Honda Motorcycle

Showroom, who after seeing the police checking party, switched off the

head light. Thereafter, the informant proceeded towards the vehicle, then

the driver and one another sitting inside the vehicle fled away taking the

advantage of darkness. On search, informant has found that the two

number plates bearing registration no. JH-05BG-8311 and OD02U-2481

were fixed over the vehicle at front and back side. The patrolling party tried

to call persons, who were fleeing from the vehicle, but when they were not

turn-up, enquiry of the vehicle was started and the Executive Magistrate

was called for the purpose of search, thereafter, the C.O., Chakradharpur

reached there and in presence of two witnesses, the said vehicle was

inspected and found four packets of Ganja 48 Kg. each in packed condition

were lying in the vehicle, a Samsung Mobile containing Airtel 4G SIM, two

black colour clothes and Toyota Innova Vehicle were seized in presence of

two witnesses and accordingly seizure list was prepared.

5. Mr. P.S. Dayal, learned counsel for the petitioner submits that the

petitioner is innocent and she was not having any knowledge of

transportation of 192 Kgs. Ganja in the said vehicle. He further submits that

the driver was driving the vehicle and the petitioner was not travelling in the

vehicle in question. He also submits that no purpose will be served if the

vehicle in question is allowed to be destroyed in open. He relied upon the

judgment rendered by the Hon'ble Supreme Court in the case of

Sunderbhai Ambalal Desai Versus State of Gujarat , reported in

(2002) 10 SCC 283. He further relied upon the judgment rendered by the

Hon'ble High Court of Chhattisgarh, Bilaspur dated 11.12.2020 in the case

of Tikeshwar Singh v. State of Chhattisgarh in Criminal Misc. Petition

No.1374 of 2020 and submits that in that case, the vehicle was directed to

be released.

6. Mr. Ravi Prakash, learned Spl.P.P. appearing for the opposite party-

State opposes the prayer for release of the vehicle and submits that the

driver has confessed about seizure of Ganja. According to him, the

petitioner was having knowledge of transportation. He further submits that

Section 60(3) of the NDPS Act stipulates that the vehicle can be released

only when the concerned person is able to prove that it was used without

the knowledge or connivance of the owner. He also submits that the there

was two different number plates in front and back of the vehicle, in

question.

7. It is an admitted fact that the petitioner is the owner of the said

vehicle and the petitioner was not travelling in the vehicle when it was

seized. In the case of Tikeshwar Singh (supra), the Hon'ble High Court of

Chhattisgarh, Bilaspur has considered Sections 36-C and Section 60 of the

NDPS Act as well as Sections 451 or 457(1) of the Cr.P.C. in paragraphs 3

and 6 of that judgment. The judgment passed by the Hon'ble Supreme

Court in the case of Sunderlal Ambalal Desai (supra) has also been

considered. Paragraph 17 of the judgment passed in the case of Tikeshwar

Singh (supra) is quoted herein below:

"17. In view of the above, the finding of the learned Special Judge that since the vehicle is liable to be confiscated, interim custody under Section 451/457 of the Cr.P.C. cannot be granted, is liable to be set aside and accordingly, the impugned order passed by the learned Special Judge (NDPS), Korba is hereby set aside. Since it is the case of the petitioner that he is the registered owner of the vehicle in question and

it was being used in the commission of offence and he is said to have given the said vehicle to the accused for his lawful purpose, but the accused has used it for the commission of alleged offence, the petitioner is entitled for interim custody of the vehicle. The matter is remitted to the Special Judge (NDPS) to pass order on the interim custody of the vehicle to the petitioner within 10 days from the date of production of certified copy of this order as per the decisions of the Supreme Court in Sunderbhai Ambalal Desai (supra) and in the matter of Ashok Kumar v. State of Bihar and others. The Special Judge may impose certain reasonable conditions for the ultimate production of the vehicle in question during trial."

8. The vehicles in question are commercial and it is of no use to keep

such vehicles at the police station for a long period. This aspect of the

matter has been considered by the Hon'ble Supreme Court in the case of

Sunderbhai Ambalal Desai Versus State of Gujarat reported in

(2002) 10 SCC 283. Paragraphs 5 and 17 of the said judgment are

quoted herein below:-

"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 said or otherwise disposed of, after recording such (3) If the property is subject to speedy and natural decay, the dispose of the same.

xxx xxx xxx "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."

9. In view of the above facts and considering that the petitioner was not

having knowledge of transportation of Ganja in the vehicle in question and

so far as Section 60(3) of the NDPS Act is concerned, that will come into

play once the trial is concluded, the Court is inclined to release the vehicle

of the petitioner. Accordingly, the order dated 18.02.2021 passed by the

learned Sessions Judge, Chaibasa in Misc. Cr. Application No.12 of 2021 is

quashed. The vehicle, in question shall be released in favour of the

petitioner on her undertaking on the following terms and conditions:-

(i) The petitioner shall furnish an indemnity bond to the satisfaction

of the court below.

(ii) One of the surety must be a resident and owner of a commercial

vehicle of District Seraikella-Kharsawan.

(iii) That the petitioner shall not sale, mortgage or transfer the

ownership of the vehicle on hire purchase agreement or mortgage or

in any manner.