Madhya Pradesh High Court

Santosh Gurjar vs The State Of Madhya Pradesh on 10 February, 2022

Author: Rajeev Kumar Shrivastava

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                The High Court Of Madhya Pradesh
                          Bench Gwalior
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          SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                           CRR 3472 of 2021

                    Santosh Gurjar vs. State of MP

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Shri Ashish Singh Jadaun, counsel for the applicant.
Shri Pramod Pachauri, Public Prosecutor for the respondent/ State.
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Reserved on                                   03/02/2022
Whether approved for reporting                     ..../.......
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                                  ORDER

(Passed on 10/02/2022)

Per Rajeev Kumar Shrivastava, J:-

Present revision under Section 397/401 CrPC has been preferred by

applicant Santosh Gurjar challenging the order dated 26/11/2021, passed

by Special Judge (NDPS) Act, Guna (MP) in MJCR No.283/2021, by

which the application filed by him u/S. 451/457 CrPC for release of his

four wheeler Maruti Celerio Car bearing Registration No.MP08CB-1746

on interim custody, has been rejected.

(2) Facts giving rise to present revision, in short, are that on

02/10/2021 on getting information from an informer, police party at the

time of checking, found that a white Maruti Celerio Car bearing

registration No. MP-08-CB-1746 was carrying opium and on search,

from the possession of driver of said vehicle, contraband articles (opium)

was seized and a Crime was registered under Section 8/18 of NDPS Act.

Thereafter, applicant filed an application u/S. 451/457 of CrPC to get his

vehicle on interim custody and same has been rejected vide order dated

26/10/2021. Being aggrieved, applicant filed a MJCR before the Special

Judge and the same has been rejected by impugned order dated

26/11/2021. Hence, this revision.

(3) It is submitted on behalf of applicant that applicant is the original

owner of seized vehicle. Vehicle in question is having no direct or

indirect nexus with the said crime. Impugned orders passed by the Courts

below are contrary to law. Livelihood of the applicant is depending on the

said vehicle. Vehicle is lying in the compound of Police Station

concerned without any protection from weather. Vehicle in police station

for a long period is of no use. Condition of seized vehicle is deteriorating

day-by-day as the same is lying in open sky and under heat of sun and

rains. Vehicle is loosing its value day-by-day due to lack of maintenance,

natural wear and tear and passing of time. The Court below ought to have

passed an appropriate order by taking appropriate bond and guarantee as

well as security for return of vehicle to the applicant on interim custody.

Impugned orders passed by the Courts below are contrary to the

provisions of law and same are liable to be quashed as they are passed in

anticipation of confiscation proceedings. As of today, the applicant has

not been convicted in any of alleged offence and unless he is convicted,

the vehicle cannot be confiscated, therefore, applicant is entitled to

interim custody of vehicle. He is ready to maintain condition of vehicle

and during pendency of all proceedings, he will not alienate or transfer

vehicle. He also undertakes that he will not use the vehicle for

commission of any offence. The Magistrate concerned is competent to

release the vehicle on interim custody and, hence, prayed for setting aside

the impugned order by allowing this revision, with a direction to police

authorities to release the vehicle to applicant on interim custody. In

support of his contention, he has relied upon the order dated 06/09/2021

passed by a Coordinate Bench of this Court passed in the case of Sagar

Singh vs. State of State [CRR No.1651 of 2021] and the judgment

passed by the Hon'ble Apex Court in the matter of Sunderbhai Ambalal

Desai vs. State of Gujarat reported in (2002) 10 SCC 283, wherein

procedures for disposal of valuable items like currency, liquor, vehicle

and narcotics drugs have been laid down as under:-

"Powers under Section 451 of 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.'' (4) Per contra, the learned State Counsel opposes the prayer of the

applicant by submitting that once, confiscation proceedings have been

initiated, the vehicle in question is not liable to be released. It is

undisputed fact the applicant is the registered owner of vehicle which was

seized by the police in which contraband articles (opium) was being

transported and if it is released, then the applicant may use vehicle in the

same manner. The Trial Court has rightly rejected application as no

palpable error on the face of record has been pointed out by applicant in

the order impugned. The aforesaid vehicle would be required during trial

for describing the nature of property in detail, therefore, prays for

dismissal of instant revision.

(5) Heard the learned counsel for parties and perused the documents

available on record.

(6) Section 451 of CrPC reads as under:-

''451. Order for custody and disposal of property pending trial in certain cases.When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation-

For the purposes of this section, "property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.'' Section 457 of CrPC reads as under:-

457. Procedure by police upon seizure of property. ''(1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months

from the date of such proclamation.'' (7) From perusal of record, it is clear that although the applicant is the

registered owner of the vehicle in question but in the said vehicle

contraband articles (opium) was being transported by the driver of the

seized vehicle. The judgments cited by the applicant as above is of no

help to him. It is settled-principle of law that the object of confiscation

proceeding is to enable speedy and effective adjudication with regard to

confiscation of produce and means used for committing offence while

object of prosecution is to punish the offender- accused. Although, the

applicant has pleaded that 659 grams of contraband articles (opium) was

being transported in the vehicle by the driver without his knowledge, but

since the prosecution has stated that confiscation proceedings have

already been initiated, therefore, this Court is of the considered view that