Janardan Yadav vs Union Of India Through Its Sr. ...
2023 Latest Caselaw 3402 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.642 of 2021
          Arising Out of PS. Case No.-205 Year-2018 Thana- MOKAMAH District- Patna
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JANARDAN YADAV son of Late Binu Yadav @ BInod Yadav Resident of village- Sitarampur Rachiyahi P.S- Matihani, Dist- Begusarai

... ... Petitioner/s Versus

1. UNION OF INDIA THROUGH ITS SR. INTELLIGENCE OFFICER,D.R.I. REGIONAL UNIT,PATNA AND ORS BIHAR

2. THE STATE OF BIHAR THROUGH DISTRICT MAGISTRATE PATNA PATNA BIHAR

3. THE DISTRICT MAGISTRATE PATNA PATNA BIHAR

4. THE SENIOR SUPRINTENDENT OF POLICE PATNA PATNA BIHAR

5. THE SHO MOKAMA POLICE STATE, DISTRICT PATNA PATNA BIHAR

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Ravi Shanker Pankaj For the Respondent/s : Mr.K.N.Singh (ADSG) Mr. Manoj Kumar Singh (EDF) Mr. Ankit Kumar Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER ORAL

Date : 01-08-2023

The present revision application has been filed against

the order, dated 08.08.2019, passed, by the learned 14 th Additional

Sessions Judge, Patna, in Special Case No. 84 of 2018, arising out

of Mokama Police Station Case No. 205 of 2018, dated

01.08.2018, registered for the offence punishable under Sections

20/22 of the Narcotic Drugs and Psychotropic Substances Act,

1985, whereby the learned 14th Additional Sessions Judge, Patna, Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

has rejected the prayer of the petitioner for releasing his Hero

Splendor Plus motorcycle, having no registration number at the

time of seizure, but later on, he got registration number, i.e. BR

09AA/1487, in favour of the petitioner pending trial or

confiscation proceeding.

2. The brief facts, giving rise to the present revision

application, is that on the basis of written report submitted by Md.

Kaisar Alam, Inspector and Station House Officer of Mokama

Police Station, Mokama Police Station Case No. 205 of 2018 was

registered, stating therein that while he, along with other police

personnel, were going towards Begusarai and on the way, they

overtook one Bolero vehicle, bearing Registration No. BR-

09G/4762 and thereafter the driver of the said car and one

motorcycle, who was allegedly escorting the said Bolero vehicle,

tried to flee away in suspicious manner, but the police party, after

chasing them, stopped the vehicles and asked the persons sitting

therein as to why they were trying to flee away, then the

apprehended accused persons disclosed that there is ganja in the

bolero vehicle. Upon search of the Bolero vehicle, the police party

recovered about 32 kgs of ganja, kept inside the bolero vehicle.

3. Learned counsel for the petitioner submits that

petitioner is the owner of the seized Splendor Plus motorcycle, Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

having Registration Number BR 09AA/1487. He further submits

that the petitioner was driving the motorcycle and no ganja was

recovered from the motorcycle and/or conscious possession of the

petitioner. In support of his ownership, the petitioner has annexed

the Insurance Certificate at Annexure-1 series. He further submits

that the confiscation proceeding has not been initiated as yet and in

view of Section 63 of the Narcotic Drugs and Psychotropic

Substances Act, 1985, the confiscation proceeding may not be

initiated till the conclusion of the trial. He further submits that the

motorcycle in question is kept in an open space in the police

station and is subject to deterioration and losing its road

worthiness on daily basis.

4. Learned Counsel, assailing the order of learned

District Court, submits that the learned District Court has failed to

appreciate the legal provisions enshrined under Section 451 and

457 of the Code of Criminal Procedure, 1973, and the law laid

down by the Supreme Court, in the case of Sunderbhai Ambalal

Desai v. State of Gujarat, reported in (2002)10 SCC 283, as well

as the judgment of co-ordinate Bench of this Court, in the case of

Jai Kishan Kumar v. Union of India, reported in 2021 (1) BLJ

374. Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

5. On the other hand, learned Counsel for the

respondents opposed the prayer of the petitioner for release of the

motorcycle in his favour during pendency of the trial and/or

confiscation proceeding and submits that petitioner was escorting

the bolero vehicle, having knowledge about the Psychotropic

Substance being kept inside the bolero vehicle.

6. I have heard learned counsel for the parties concerned

and have also gone through the provisions prescribed in Code of

Criminal Procedure, 1973, as well as Section 60 of the Narcotic

Drugs and Psychotropic Substances Act, 1985.

7. Section 60 of the Narcotic Drugs and Psychotropic

Substances Act, 1985, reads as follows:-

"60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.-- (1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.

(2) Any narcotic drug or psychotropic substance[or controlled substances]lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

addition to, any narcotic drug or psychotropic substance[or controlled substances]which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any narcotic drug or psychotropic substance[or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.

(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance [or controlled substances], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-incharge of the animal or conveyance and that each of them had taken all reasonable precautions against such use."

8. From perusal of Section 60 of the Narcotic Drugs and

Psychotropic Substances Act, 1985, it appears that any conveyance

used in carrying Narcotic Drugs and Psychotropic Substance is

liable for confiscation, provided it is proved that the

vehicle/conveyance was being used with the knowledge or

connivance of the owner himself or his agent. In absence of any

such material, there cannot be any confiscation in the first

instance.

Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

9. Learned Counsel for the petitioner has submitted that

the petitioner has no concern with the bolero vehicle and he was

not escorting the bolero vehicle inasmuch as he was behind the

bolero vehicle. He further submits that the petitioner was also not

aware about the ganja being kept in the bolero vehicle and there is

no prima facie material on record to suggest that there was any

complicity on the part of the petitioner.

10. In view of the aforesaid, now the question of release

of the motorcycle of the petitioner would be under the provisions

of Sections 451 and 457 of the Code of Criminal Procedure, 1973,

which deal with the power of the Court to order for the

disposal/custody of the property pending trial in certain case and

the procedure by the police upon seizure of the property.

11. Sections 451 and 457 of the Code of Criminal

Procedure, 1973, are being quoted herein below:-

"451. Order for custody and disposal of property pending trial in certain cases.- When any property is produced before any Criminal Court during any 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 Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

thinks necessary, order it to be sold or otherwise disposed of.

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."

12. From perusal of the aforesaid provisions, it would

appear that the Court is empowered to pass an appropriate order

with regard to such property. The object and scheme of the

various provisions of the Code of Criminal Procedure, 1973,

dealing with seizure of property by the police has been dealt with Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

by the Supreme Court, in the case of Sunderbhai Ambalal Desari

v. State of Gujarat reported in (2002) 10 SCC 283 in

paragraphs- 5 and 7, wherein it has been observed as follows:-

"5. Section 451 clearly empower 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 sold or otherwise dispose of, after recording such evidence as it thinks necessary;

(3) If the property is subject to speedy and natural decay to dispose of the same.

7. In our view, the powers under Section 451 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 panchnama 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 property in detail; and

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

may not be further chance of tampering with the articles."

13. In paragraphs 17 and 21 of Sunderbhai Ambalal

Desari (supra), the Supreme Court has observed as follows:-

"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.

21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly."

14. The Supreme Court, in another judgment reported in

the case of Smt. Basavva Kom Dyamangouda Patil v. State of

Mysore and Another, reported in 1977 (4) SCC 358, while Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

dealing with the seizure of property by the police and the object

and scheme of the various provisions of the Code of Criminal

Procedure, 1973, has observed, in paragraph 4, as follows:-

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police it: ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary, As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."

15. Yet, in another judgment, in the case of General

Insurance Council and others v. State of Andhra Pradesh and

others, reported in (2010) 6 SCC 768, the Supreme Court has

directed to ensure implementation of statutory provision as

contained in Sections 451 and 457 of the Criminal Procedure Code

so as to avoid natural decay on account of weather conditions of

seized vehicle in Police Station and in paragraphs 11 and 14 of

General Insurance Council (supra) has directed as follows:-

"11. Notice of the said petition was issued to all the States and Union Territories. Almost all the States have contended that they have already issued necessary guidelines and directions for full and complete compliance of the provisions contained in Sections 451 and 457 of the Code as elaborated in Sunderbhai Ambalal Desai (supra) as also under Section 158(6) of the M.V. Act and 159 of the Rules as directed in General Insurance Council case (supra).

Thus, in one voice, they have contended that there would not be any difficulty in compliance of the Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

directions that may be issued in furtherance of achieving the object as directed by this Court. Thus, in our view, there appears to be consensus in this matter.

14. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only they occupy substantial space of the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued herein above, we direct that all the State Governments / Union Territories / Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police stations, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the concerned Division / Commissioner of Police of the concerned cities / Superintendent of Police of the concerned district."

16. In view of the aforesaid discussion of law as well as

the facts involved in the matter, I am of the considered opinion that Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

the learned 14th Additional Sessions Judge, Patna, has failed to

exercise his jurisdiction in correct legal perspective and thereby

committed material irregularity inasmuch as if the motorcycle, in

question, is allowed to be kept in open in the police station, it may

lose its road worthiness due to natural decay on account of

weather condition. It is not disputed that the petitioner is the

owner of the motorcycle and the same is lying in open place in the

police station since 2018.

14. Accordingly, the order dated 08.08.2019 passed by the

learned 14th Additional Sessions Judge, Patna, in Special Case

No. 84 of 2018, arising out of Mokama Police Station Case No.

205 of 2018, is set aside and the learned 14th Additional Sessions

Judge, Patna, is directed to release the motorcycle, in question, in

favour of the petitioner after verifying the ownership/registration of

the vehicle within a period of three weeks from the date of

receipt/production of a copy of this order, subject to the following

conditions:-

(i) That the petitioner shall furnish adequate

security of Rs. 40,000/- to the satisfaction of the

District Court.

(ii) That before handing over the motorcycle

to the petitioner, a detailed and proper punchnama of Patna High Court CR. WJC No.642 of 2021 dt.01-08-2023

the said vehicle after taking its photograph shall be

prepared.

(iii) That the petitioner shall also execute

bond that the motorcycle in question shall be

produced as and when required during the time of

trial.

(iv) That the petitioner shall also furnish an

undertaking on oath that he shall not alienate or part

with the ownership of the motorcycle till pendency of

the trial.

15. In the result, this writ application is allowed with the

aforesaid observations and directions.

(Anil Kumar Sinha, J.) Prabhakar Anand/-

AFR/NAFR                         NAFR
CAV DATE                          N/A
Uploading Date                03-08-2023
Transmission Date             03-08-2023