Shakir Akhtar vs The Union Of India Through The ...
2023 Latest Caselaw 1029 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Criminal Writ Jurisdiction Case No.329 of 2022
        Arising Out of PS. Case No.-5 Year-2020 Thana- GOVERNMENT OFFICIAL COMP.
                                          District- Purnia
     ======================================================

Shakir Akhtar S/o Late Shameem Akhtar, Resident of Gaiyari, Ward No. 6, Near Ansar Masjid, P.S. And Dist. - Araria.

... ... Petitioner/s Versus

1. The Union of India through the Narcotic Control Bureau, Patna.

2. The State of Bihar through the District Magistrate, Purnea.

3. The Excise Inspector, Purnea.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. A.B. Ojha, Senior Advocate.

                             :       Mr. Nitesh Kumar, Advocate
                             :       Mr. Sumit Kumar, Advocate.
     For the UOI             :       Mr. K.N.Singh, Senior Advocate.
                             :       Mr. Shyam Bihari Singh, Advocate.
     For the State           :       Mr. Vikash Kumar, Advocate.

====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Date : 17-03-2023

Counter affidavit has been filed by the learned counsel for

the State in the Court itself, which is kept on record.

2. In the present criminal writ application preferred under

Articles 226 and 227 of the Constitution of India the petitioner

has sought for quashing of the order dated 09.04.2021 passed by

the learned Special Judge, NDPS Act., Purnea, in Special Case

No.12 of 2020/CIS No. 12 of 2020 (NDPS Act.) whereby the

petitioner's petition for release of his Tata Indigo Car bearing

Registration No. BR-38H-2618, Chasis No.

MAT6007341EPC08953 and Engine No. Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

475IDT14CVYP14326 seized in connection with the aforesaid

case has been rejected.

3. Special Case No.12 of 2020/CIS No. 12 of 2020

(NDPS Act.) was registered on 26.06.2020 on the basis of

written complaint made by Excise Inspector, Prunea.

4. The prosecution case, in brief, is that informant is

Excise Inspector, Purnea. On 26.6.2020 during vehicle checking

at Barsauni Toll Plaza, informant saw that one Tata Indigo car

bearing Registration No. BR-38H/2618 was coming towards

Purnea and after seeing the police personnel, the driver made U-

turn and flee away towards Dagarua. On suspicion, Informant

and other police personnel chased but the driver fled away with

key after parking the said vehicle. After searching before two

independent witnesses recovered 1280 bottles of Codeine

Phosphate and Chlorpheniramine Maleate Syrup (ESKUF

Cough Syrup) containing 100 ml each i.e. total 128.00 liters.

Accordingly, informant seized the aforesaid cough syrup and car

and prepared seizure list in accordance with law.

5. Learned counsel for the petitioner has submitted that

the petitioner is the owner of the seized Tata Indigo Car. He

further submits that much prior to alleged occurrence, the

petitioner had given the said vehicle on lease to the accused Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

Ansir Akhtar with condition that if anything happens in course

of plying the vehicle, the authorized person(s)/driver will bear

all the liabilities including any legal proceeding. Counsel further

submits that during course of investigation, the

prosecution/informant has found the factum of authorization true

and he submitted final report against the accused Ansir Akhtar

and let off the owner of the vehicle (petitioner). There was no

concern to the petitioner with the affairs of vehicle since

24.03.2020. He further submits that petitioner being the real

owner of the said vehicle had no knowledge about alleged

transportation of the aforesaid prohibited articles. He further

submits that the seized vehicle is kept in open sky and its two

window glasses are also open. He has submitted that as the

vehicle was also seized by the excise officials, the petitioner had

filed a petition for release of the car, but the learned Special

Judge, NDPS Act, Purnea without taking into consideration the

law laid down by the Supreme Court in Sunderbhai Ambalal

Desai vs. State of Gujarat, [(2002) 10 SCC 290] and General

Insurance Council and Ors. vs. State of Andhra Pradesh &

Ors., [(2010) 6 SCC 768] and also the judgment passed by this

Hon'ble Court in the case of Sukhdev Singh Vs. the Union of

India & Anr. (Cr. Misc. No. 40514 of 2016) rejected the Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

petition, vide order dated 09.04.2021, on the ground that the said

car is liable for confiscation under Section 60 of the NDPS Act

and that huge quantity of Codeine syrup was recovered from the

seized car. He has submitted that due to the seizure of the car

the petitioner is suffering financially and if the car is not

released, the same would become junk, as it is lying in open

with the Excise officials.

6. Mr. K.N. Singh, learned Sr. Counsel appearing on

behalf of the Union of India fairly conceded that in view of the

ratio laid down by the Supreme Court in Sunderbhai Ambalal

Desai vs. State of Gujarat (supra) and General Insurance

Council and Ors. vs. State of Andhra Pradesh & Ors. (supra)

and also the judgment passed by this Hon'ble Court in the case

of Sukhdev Singh Vs. the Union of India & Anr. (Cr. Misc.

No. 40514 of 2016), the court below ought to have released the

vehicle in question in favour of the petitioner. However, he has

submitted that while releasing the vehicle the court must impose

stringent condition so that the petitioner may not alienate the

same and produce it as and when required by the court.

7. I have heard learned counsel for the parties and

carefully perused the record.

8. The horrifying situation of the case property such as Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

vehicles, machines etc. found lying in police station premises

and Court premises and ultimately becoming junk and loosing

their value engaged attention of the Supreme Court in

Sunderbhai Ambalal Desai (supra).

9. In the aforesaid case, after examining the scope of

Sections 451 and 457 of the CrPC, the Supreme Court held that

the powers under Section 451 CrPC should be exercised

expeditiously and judiciously.

10. In paragraphs 5 and 7 in Sunderbhai Ambalal Desai

(Supra), the Supreme Court observed as under:-

"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 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.

xxx xxx xxx

7. In our view, the powers under Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

Section 451 CrPC 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 may not be further chance of

tampering with the articles."

11. It has further been held in the said judgment that

whatever be the situation, it is of no use to keep seized vehicles

at the police station for a long time. In this regard, in paragraph Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

17 it has been held as under:-

"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."

12. The provisions prescribed under Sections 451 and 457

CrPC were once again considered by the Supreme court in

General Insurance Council and Ors. vs. State of Andhra

Pradesh & Ors. [(2010) 6 SCC 768]. After taking note of the

directions given by the Supreme Court in Sunderbhai Ambalal

Desai case (supra) in General Insurance Council vs. State of

Andhra Pradesh (supra), the Supreme Court noticed that

police, investigating as well as prosecuting agency were not

taking adequate steps for compliance of the directions, which

has resulted in loss of assets worth several hundred crore and

recovered articles were reduced to junk by the time they are

released. It gave further directions in this regard. Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

13. Coming back to the facts and circumstances of the

present case, it would be evident that in the FIR registered under

Sections 22b(ii)c of the NDPS Act, the petitioner is owner of the

Tata Indigo Car bearing Registration No. BR-38H-2618. It is

also an admitted fact that till now the petitioner has not been

made accused in the present case. He filed an application for

release of the car before the learned Special Judge, NDPS Act,

Purnea, but the same was rejected, vide impugned order dated

09.04.2021 on the ground that huge quantity of Codience syrup

was recovered from the car and under Section 60 of the NDPS

Act, the car would be liable for confiscation.

14. In the opinion of this Court while considering the

application for release of car, the learned Special Judge, NDPS

Act, Purnea was bound to follow the statutory provisions

contained in Chapter XXXIV of the CrPC and the ratio laid

down by the Supreme Court in Suderbhai Ambalal Desai

(supra) and General Insurance Council & Ors. (supra). The

non- compliance of the directions of the Supreme Court in the

aforesaid decisions is not permissible.

15. So far as the power to confiscate the card in question

under Section 60 of the NDPS Act is concerned, it is a settled

legal position that Section 60 of the NDPS Act would come into Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

play after conclusion of trial. In case, the trial court comes to a

conclusion that the accused persons are guilty of the offences

under the NDPS Act, the vehicle used in the illegal trade of

contraband articles can be confiscated.

16. I also see substance in the submissions of the learned

counsel for the petitioner that if the car is not released and kept

idle in an open space in office of Excise during pendency of

the trial, it shall become a piece of scrap.

17. Keeping in mind the discussions made hereinabove

and the ratio laid down by the Supreme Court in the decisions,

discussed above, the impugned order dated 09.04.2021 passed

by the learned Special Judge, NDPS Act, Purnea cannot be

sustained. Accordingly, it is set aside.

18. The court below is directed to release the car in favour

of the petitioner, subject to the following conditions:-

(i) That the petitioner shall furnish bank guarantee of Rs.

5 lacs to the satisfaction of the court;

(ii) That the petitioner shall execute a bond for the return

of the said vehicle if required by the court at any point of time;

(iii) That the petitioner shall also give an undertaking on

oath that he shall not alter or part with the ownership of the

vehicle during pendency of the trial; and Patna High Court CR. WJC No.329 of 2022 dt.17-03-2023

(iv) While passing the order for release, the court below

shall be at liberty to take any other reasonable sureties from the

petitioner to its own satisfaction.

19. Subject to release the vehicle upon payment of 1 ½ as

per value fixed by the Insurance Company. Insurance amount in

the form of bank guarantee before the Authority.

20. With these observations and directions, the present Cr.

Writ Application stands allowed.

(Dr. Anshuman, J.) ravishankar/-

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