Madhya Pradesh High Court
Mukesh Kumar Rakesh vs The State Of Madhya Pradesh on 1 May, 2023
Author: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 1 st OF MAY, 2023
CRIMINAL REVISION No. 2784 of 2021
BETWEEN:-
MUKESH KUMAR RAKESH S/O SHRI RAMESH
CHANDRA, AGED ABOUT 45 YEARS, OCCUPATION: THR.
S UR ES H KUMAR PANDY S/O LATE DEVI PRASAD
PANDEY R/O KAUNDHIYARA TEHSIL KARCHANA
DISTT. PRAYAGRAJ (UTTAR PRADESH)
.....PETITIONER
(BY SHRI ANUJ PATHAK - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THR. P.S. SOHAGI
DISTT. REWA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SATYAPAL CHADDAR - GOVT. ADVOCATE )
This revision coming on for admission this day, th e court passed the
following:
ORDER
Heard.
The instant petition has been filed under Section 482 of the Code of
Criminal Procedure for taking the vehicle Innova bearing registration No.UP 62
AF 5000 on supurdgi against the order dated 27.7.2021 passed in Special
Case NDPS No. 58/2021 by Special Judge (NDPS), District Rewa (M.P.),
whereby learned Special Judge rejected the applicant's application filed under
Section 457 of Cr.P.C to get the interim custody of the Innova Car bearing
Registration No. UP 62 AF 5000 , which was seized by the Police Station
Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 5/2/2023
11:03:54 AM
Sohagi, District Rewa in Crime No.30/2021 registered for the offence
punishable under Section 8, 21, 22 and 25 of NDPS Act and Section 5/13 of
M.P. Drug Control Act.
2. Brief facts of the case which are relevant to the disposal of this petition
are that, Police Sohagi, Rewa has seized a Innova Car bearing Registration No.
UP 62 AF 5000 , in respect of Crime No. 30/2021 registered for the offences
punishable under Section 8, 21, 22 and 25 of NDPS Act and Section 5/13 of
M.P. Drug Control Act. After investigation police filed the charge sheet and on
that charge sheet, Special Case NDPS No. 58/2021 was registered which is
pending before Special Judge (NDPS) Rewa, District Rewa. During pendency
of case, the applicant, who is the registered owner of the said vehicle filed an
application under Section 457 of Cr.P.C. before Special Judge (NDPS), Rewa
for getting interim custody of the said vehicle. The learned Special Judge
rejected the application vide order dated 27.7.2021. Being aggrieved by that
order, applicant filed this petition.
3. Learned counsel for the applicant submitted that applicant is the
registered owner of the said Innova Car bearing Registration No. UP 62 AF
5000, so he is entitled to get the custody of said Car. He further submitted
that learned Special Judge committed mistake in rejecting the prayer of the
applicant and not giving the said vehicle in custody. In this regard, counsel has
relied on the Apex Court judgment in the case of Sunderbhai Ambalal Desai
vs. State of Gujarat AIR 2003 SC 638 and Tikeshwar Singh Vs. State of
Chhatishgarh (Cri.Misc. Petition No.1374/2020), whereby the Court held
that whatever be the situation, it is of no use to keep seized vehicle at Police
Stations for long period. It is for the Magistrate to pass appropriate orders
immediately by taking bond and guarantee as well as security for return of said
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Signed by: DEEPA MISHRA
Signing time: 5/2/2023
11:03:54 AM
vehicle, if required at any point of time. Hence, counsel prayed that the
application be allowed.
4. On the contrary, learned counsel for the respondent/State opposed the
submissions of the counsel for the applicant and has submitted that the said
vehicle was seized for carrying 1550 bottles of cough syrup containing
Codeine, therefore, trial Court has rightly rejected the application of the
applicant.
5. This Court has gone through the record and arguments put-forth by
both the parties. On perusal of the record, it is evident that the applicant is the
registered owner of the seized vehicle. There is no provision in the NDPS Act
to restrict the power of the trial Court to release the vehicle in interim custody. It
has been held by this Court in the case o f Pandurang Kadam vs State of
M.P. 2005 (2) ANJ MP 351 , that notwithstanding the fact that the vehicle is
liable to be confiscated under Section 60 of the NDPS Act, it may be released
in interim custody in appropriate cases. Thus, interim custody should not be
denied to the owner of the vehicle, simply because it is liable to be confiscated
under Section 60 of the NDPS Act. The High Court of Tripura, Agartala in the
case of Sri Sankar Das Vs. State of Tripura (Cri. Petition No.9 of 2018,
decided on 16.3.2018) has held in paras 9, 10, 11, 12 & 13 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
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Signed by: DEEPA MISHRA
Signing time: 5/2/2023
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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 mentioned in sub-
paragraph (1) shall preserve the certified inventory, photographs and
samples drawn in 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
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Signed by: DEEPA MISHRA
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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 agent if any and the person in charge of the animal or 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
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Signed by: DEEPA MISHRA
Signing time: 5/2/2023
11:03:54 AM
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 proof, the proceeding for
confiscation may ensue in 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."
6. So, it is evident that trial Court is empowered to release the vehicle on
supurdaginama in pending trial.
7. There is no evidence on record to show that applicant has criminal
past and he was involved in similar crimes in the past too. Learned Special
Judge without assigning any reason rejected the applicant'™s application
which cannot be said to be proper. If the seized vehicle is kept lying at the
Police Station, the value of the said vehicle would be diminished and the parts
of the vehicle would be reduced rot to rust.
8. Accordingly, the present petition under Section 482 of Cr.P.C. in
Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 5/2/2023
11:03:54 AM
respect of seized Innova Car is allowed and the impugned order dated
27.7.2021 passed by the learned Special Judge (NDPS), Rewa District Rewa
(MP), in Special Case NDPS No.58/2021, to the extent of rejection of
application for releasing of seized Innova Car in Special Case NDPS
No.58/2021 filed by the applicant under Section 457 of Cr.P.C, is hereby set
aside. It is directed that the vehicle of the applicant's vehicle bearing
Registration No. UP 62 AF 5000 , in Crime No. 30/2021 registered at Police
Station Sohagi, District Rewa for the offence Punishable under Section 8, 21,
22 and 25 of NDPS Act and Section 5/13 of M.P. Drugs Control Act be
released on temporary supurdgi till the conclusion of trial on the following
terms and conditions:-
" 1 . The applicant Mukesh Kumar Rakesh, S/o Shri Ramesh
Chandra shall furnish Supurdiginama to a sum of Rs.10,00,000/- (Rupees Ten
Lakh Only) alongwith a surety of the like amount to the satisfaction of the trial
Court for releasing the vehicle in question.
2. The applicant shall also furnish an undertaking that he shall produce
the vehicle in question as & when required during the trial.
3 . The applicant shall not alienate the same or make no use of such
vehicle for any unlawful purpose during pendency of the case.
4. An undertaking shall also be given by the applicant that the machinery
and nature of the vehicle in question shall not be changed.
5. The applicant will not allow the vehicle to be used for commission of
any other offence and anti-social activities.
6 . In the event of confiscation order by the Court competent, the
applicant shall produce the vehicle positively for confiscation."
9. It is further directed that before releasing the vehicle in interim custody
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Signed by: DEEPA MISHRA
Signing time: 5/2/2023
11:03:54 AM
of the applicant, the S.H.O. of concerning police station shall get all the papers
of vehicle from registered owner and will also get photographs seized 18 x 12
inches of the concerned vehicle taken from all sides and also the photographs
showing engine number and chassis number. Such papers and photographs
shall be filed in the trial Court to be kept along with the case record.
10. With the aforesaid directions, this petition stands disposed of.
Certified copy as per rules.
(DINESH KUMAR PALIWAL)
JUDGE
mrs. mishra
Signature Not Verified
Signed by: DEEPA MISHRA
Signing time: 5/2/2023
11:03:54 AM
