Madhya Pradesh High Court
Nathuram @ Natthu Patel vs The State Of Madhya Pradesh on 14 December, 2021
Author: Vishal Mishra
1 CRR-3112-2021
The High Court Of Madhya Pradesh
CRR No. 3112 of 2021
(NATHURAM @ NATTHU PATEL Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 14-12-2021
Shri P.K.Dubey, learned counsel for the applicant.
Shri Aditya Gupta, learned Panel Lawyer for the respondent/State.
The present revision under Section 397/401 of the Cr.P.C has been
filed challenging the order dated 22.10.2021 passed by the Special Judge
(NDPS) in special case no.08/2021 whereby, the application has been filed
under Section 451 of the Cr.P.C. for releasing of the vehicle has been
rejected.
It is submitted that an FIR was registered with respect to the alleged
offence in connection with crime no.308/2021 for the offence punishable
under Section 8/20-b of the NDPS Act wherein, the contra band article was
been transported by a swift desire car bearing registration No. C.G.04-HB-
5363, Engine No.D13A1309988 and Chassis No.MA 3FKEB25000213322.
The vehicle was seized by the police authorities. After completion of the
investigation, charge sheet has been filed before the Special Court, Panna.
Thereafter, an application under Section 451 of the Cr.P.C. has been filed
seeking release of the vehicle along with all the original documents on the
ground that the applicant is the owner of the vehicle in question as there is no
requirement of keeping the vehicle for further inspection therefore, the same
may be released to him. Keeping the vehicle in police custody in open
condition will deteriorate the condition of the vehicle. He has placed reliance
upon the orders passed by the Hon'ble Supreme Court in the case of
Sunderbai Ambalal Desai vs. State of Gujarat, reported in AIR 2003 SC
638 wherein, Hon'ble Supreme Court has directed to release the vehicle in
question on furnishing certain securities and bonds. He has further placed
reliance upon the order passed by the co-ordinate Bench of this court in the
case of Kuleshaware Chandrawanshi Vs. State of M.P. passed in CRR
No.1402/2021 dated 06.08.2021 wherein, in identical circumstances, the
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revision was allowed and the vehicle was directed to be released on certain
conditions.
It is argued that he is ready to fulfill all the conditions that may be
imposed by this court while directing for release of the vehicle in question.
Learned trial court has not considered the aforesaid aspect to release the
vehicle and only on the presumptions that there is a possibility of tempering
with the conditions of the vehicle and as there will be requirement of the
vehicle in subsequent evidence, the application was rejected. He has prayed
for setting aside the impugned order with the further direction to release the
vehicle in question.
Learned counsel appearing for the State has supported the impugned
order and has submitted that the learned trial court has given justified reasons
for rejection of the application. There is no dispute that the contra band article
is being transported by the vehicle in question. Mere filing of the charge sheet
does not make any changes in the circumstances. The vehicle will always be
required for at the time of recording of the evidence before the trial court
therefore, he prays for rejection of the application.
Heard the learned counsel for the parties and perused the record.
In Sunderbhai Ambalal Desai (Supra), wherein, the Apex Court in
paras, 15,16,17 and 18, has held as under :
“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.
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However, the learned counsel appearing for the petitioners
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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.
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.
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.â€Â
In the present case, it is not disputed that the contra band article was
been transported with the help of the vehicle in question but the fact remains
that the charge sheet has already been filed in the matter. The mechanical
inspection of the vehicle has already been done by the authorities. Keeping
the vehicle in police custody in an open condition will deteriorate the
condition of the vehicle.
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The co-ordinate bench of this court, in the case of Kuleshaware
Chandrawanshi (supra) wherein 30 Kgs. of contra band article was been
transported, has considered the relevant provisions of the NDPS Act and
thereafter directed for release of the vehicle. The co-ordinate Bench placing
reliance upon the judgment passed in the case of Sankar Das Vs. State of
Tripura (Cri Petition 9 of 2018 decided on 16.03.2018) as held as under
:-
"[9] Substantively, directions in Union of India
vs. Mohanlal (supra) are concerned with the storage
and disposal of the narcotic drugs and psychotropic
substances. However, in Para-31.2 of the said decision
in respect of storage, the reference has been made to
conveyance as well. Similarly, in the notification dated
16.01.2015 the provision has been made for disposal of
the narcotic drugs and psychotropic substances,
controlled substances or the conveyances under Section
52A of the NDPS Act. Clause 4 of the said notification
provides as under:
"4. Manner of disposal - (1) Where any narcotic drug,
psychotropic substance, controlled substance or
conveyance has been seized and forwarded to the
officer-in-charge of the nearest police station or to the
officer empowered under section 53 of the said Act or if
it is seized by such an officer himself, he shall prepare
an inventory of such narcotic drugs, psychotropic
substances, controlled substances or conveyances as
per Annexure 1 to this notification and apply to any
Magistrate under sub-section 9(2) of section 52A of the
said Act as per Annexure 2 to this notification within
thirty days from the date of receipt of chemical analysis
report of seized narcotic drugs, psychotropic substances
or controlled substances.
(2) After the Magistrate allows the application under
sub-section (3) of section 52A of the said Act, the officer
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mentioned in sub-paragraph (1) shall preserve the
certified inventory, photographs and samples drawn in
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the presence of the Magistrate as primary evidence for
the case and submit details of the seized items to the
Chairman of the Drug Disposal Committee for a
decision by the Committee on the disposal, and the
aforesaid officer shall send a copy of the details along
with the items seized to the officer- in-charge of the
godown."
[10] The question, therefore, emerges is that whether
the Magistrate under sub Section 52A (2) has any
authority to direct disposal?
Bare reading of the said provision would show no such
direct authority has given to the Magistrate. According
to the said notification dated 16.01.2015 power of the
Drug Disposal Committee has been authorized to
dispose [see para-7] but no reference in respect of the
disposal of the conveyance is available except to
include the word 'conveyance'. That perhaps be the
reason why the special court has refused to release the
vehicle. But the authority can be derived if Section
60(3) and Section 63 of the NDPS Act are read for this
purpose.
[11] Let us further examine whether the said provision
is self- contained code. From the reading of the entire
notification dated 16.01.2015, it would appear that the
Drug Disposal Committee has no other power except to
act in the mode as prescribed for disposal, as provided
in Para-9(5) (e). The following mode has been provided:
"(e) seized conveyances shall be sold off by way of
tender or auction as determined by the Drug
Disposal Committee."
Such disposal in terms of the Para-9(5)(e) only be
possible after the confiscation proceeding is complete.
Without confiscation, the disposal of the seized
conveyance within the scheme of the NDPS Act, 1985
cannot be visualized and as such, the ancillary question
that emerges is that whether the said notification has
provided a mechanism for disposal without confiscation
inasmuch as Section 60(3) has clearly provided that
'any animal or conveyance used in carrying any
narcotic drug or psychotropic substance or controlled
substance or any article liable to confiscation under sub
Section (1) or sub Section (2) of Section 60 shall be
liable to confiscation unless the owner of the animal or
the conveyance proves that it was so used without the
knowledge or connivance of the owner himself, his
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conveyance and that each of them had taken all
reasonable precautions against such use.
[12] It is thus apparent that Section 60(3) of the NDPS
Act has made provision for protecting the interest of an
innocent owner before confiscating his vehicle. The
procedure of confiscation has been made under Section
60(3) of the NDPS Act which provides that in the trial of
offences under the NDPS Act, whether the accused is
convicted or acquitted or discharged the Special Court
shall decide whether any article or thing seized under
this act is liable to confiscation under Sections 60,61 or
62 and if it decides that that the seized articles or things
are liable to be confiscated it may order confiscation
accordingly. The procedure for confiscation has been
further elaborated under sub Section 2 of Section 63 of
the NDPS Act. A substantive reading of Section 63 read
with Section 60(3) of the NDPS Act would provide that
until the trial is over the confiscation proceeding
cannot be initiated. However, exception has been curved
out in proviso-es to sub Section 2 of Section 63 of the
NDPS Act. The first proviso provides that no order of
confiscation of an article or thing shall made 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. The second proviso to sub-Section
2 of Section 63 of the NDPS Act provides further that if
any such article or thing, other than a narcotic drug,
psychotropic substance, 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.
[13] A conjoint reading of proviso-es as referred above
would certainly allow a prudent person to infer that
immediate disposal would mean the disposal after
expiry of one month and that would apply to articles or
things other than the narcotic drugs, psychotropic
substance, controlled substances, the opium poppy, coca
plant or cannabis plant which are liable to speedy and
natural decay. If the court is of the opinion that sale
would be beneficial for its owner it may any time direct
it to be sold. In that event the Drug Disposal Committee
shall make all arrangements for sale of those things or
articles. So far the conveyance [of which ownership has
been claimed] is concerned, its involvement in carrying
out the offence has to be proved in the trial and on such
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proof, the proceeding for confiscation may ensue in
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terms of Section 63(1) of the NDPS Act and the
confiscation only be made after affording a reasonable
opportunity of being heard to the person who has any
right or claim over the said conveyance. Such
confiscation can be done only after the trial is complete
and the Special Court decides for confiscation as the
court is to see that the vehicle or conveyance which was
used for commission of offence under the NDPS Act is
not made available to the person or persons who
indulged in the blameworthy act. If the owner of the
vehicle is not an accused in that case, a separate and
independent proceeding has to be drawn for
confiscation in terms of the express provisions in
Section 60(3) of the NDPS Act to protect an innocent
owner before confiscating his vehicle or conveyance.
Thus, there is a right to the owner who claimed within
30[thirty] days from the day of seizure, his title over the
vehicle to have interim custody of the said vehicle
subject to the adequate security till completion of the
trial. In absence of any contrary provision in Union of
India vs. Mohanlal (supra), this Court is of the view that
the vehicle bearing registration No.TR-01-AT-0341 as
seized in connection with Khowai P.S. Case No.
No.2017/KHW/128 may be released to its registered
owner till completion of the trial."
So, it is evident that trial Court is empowered to release
the vehicle on supurdginama in pending trial."
Considering the judgment passed by the Supreme Court in the case of
Sundar Lal Desai (supra) as well as the case of Sankar Das (supra)
passed by the co-ordinate Bench of this Court. In the aforesaid case, this
court deems it appropriate to direct the release of the vehicle subject to
applicant possession of supurdginama of Rs.10,00,000/- with a solvent surety
of the like amount subject to verification of the documents and the ownership
of the vehicle in question. The vehicle be released subject to the following
conditions :-
1. That, applicant shall furnish Supurdginama in the sum of
Rs.10,00,000/-(Rupees TenLacs only) with one solvent surety in the
like amount to the satisfaction of the concerned trial Court, for releasing
the seized said vehicle vide Crime No.308/2021 registered at Police
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Station Pawai, District Panna, in respect of offence punishable under
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Sections 8/20 of the NDPS Act.
2. That, the applicant shall produce necessary documents like
original registration certificate, sale-letter etc. before the trial Court.
3. That, the applicant shall get the vehicle photographs showing
the registration number as well as chassis number of the said vehicle.
Such photographs shall be taken in the presence of the responsible
officer, who will be deputed by the trial Court and to be kept in the file
of the case.
4. That, the photographs of the applicant as well as surety must
have been placed in the personal bond and bond of surety. Further, the
photograph of person identifying him before the Court must also have
been placed in the personal bond. The applicant surety and person
identifying shall carry their full residential proof.
5. The applicant shall undertake not to transfer the ownership of
the vehicle and shall not lease it to anyone and not make or allow any
changes in it to be made so as to make unidentifiable.
6. The applicant will not allow the vehicle to be used in any anti-
social activities.
8. In the event of confiscation order of the Court competent, the
applicant shall keep the vehicle present positively for confiscation.
I t is further directed that before releasing the vehicle in interim
custody of applicant, the S.H.O. of concerning police station shall get
photographs size 18 x 12 inches of the concerned vehicle taken from all
sides and also the photographs showing engine and chassis numbers.
Such photographs shall be filed in the trial Court to be kept along with
the record.
With the aforesaid directions, this revision stands disposed of.
Certified copy as per rules.
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(VISHAL MISHRA)
JUDGE
Sha
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