Jharkhand High Court

Vikram Kumar Mahto vs The State Of Jharkhand on 27 September, 2021

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                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    Cr.M.P. No. 1269 of 2021
             Vikram Kumar Mahto, aged about 28 years, son of late Kartik Mahto,
             resident of village-Hospital Road, Bundu, P.O.+P.S. Bundu, District- Ranchi
                                                                     ... 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. Birendra Kumar, Advocate For the Opposite Party-State : Mr. Ravi Prakash, Spl.P.P.

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05/27.09.2021. Heard Mr. Birendra Kumar, 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

06.03.2021 passed by the learned Additional Sessions Judge-III, Latehar in

M.C.A. No.512/2019, arising out of N.D.P.S. Case No.02/2020,

corresponding to Balumath P.S. Case No.237/2019, whereby, the prayer for

release the vehicle has been rejected.

4. The allegation made in the F.I.R. is that on 12.11.2019 at

village Jogiyadih near Railway crossing at NH99, a Swift Desire Car of white

colour having registration no. JH01CZ-4452 was intercepted and

1.520 Kg of opium was recovered from the physical possession of

co-accused Soveran Munda. After this raid, another raid was conducted

over Singhwahni Bus No.JH01DC-2956 and about 2.830 Kg of

opium was recovered from the physical possession of co-accused Panda

Munda.

5. Mr. Birendra Kumar, learned counsel for the petitioner submits that

the petitioner is innocent and he was not having any knowledge of

transportation of 1.520 Kg. of opium 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 opium. 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.

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 vehicle in question is 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 opium 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 06.03.2021 passed

by the learned Additional Sessions Judge-III, Latehar in M.C.A. No.512/2019

is, hereby, quashed. The vehicle, in question shall be released in

favour of the petitioner on his 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 Latehar.

(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.

(iv) He shall not change or tamper with the identification of the

vehicle in any manner.

(v) He shall produce the vehicle as and when directed by the Trial

Court.

10. The trial court is at liberty to impose any other terms and conditions

which the trial Court deems fit and proper. The petitioner shall cooperate in

the investigation.