Punjab-Haryana High Court
Batwinder Singh @ Buta vs State Of Haryana on 21 November, 2022
CRM-M-9624-2022 -1-
(249) IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-9624-2022
Date of Decision: 21.11.2022
BATWINDER SINGH @ BUTA
... Petitioner
Versus
STATE OF HARYANA
...Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Ms. Kanika Ahuja, Advocate
for the petitioner.
Mr. Neeraj Poswal, Asst. A.G., Haryana.
****
JASJIT SINGH BEDI, J.
The prayer in the present petition under Section 482 read with
Sections 451 and 457 Cr.P.C. and Section 60(3) of the NDPS Act is for the
quashing of the order dated 10.02.2022 (Annexure P-3) passed by the
Additional Sessions Judge, Kurukshetra and to direct the release of the Maruti
Swift LDI bearing registration No.PB11-CY-4120 (earlier numbered as DL-
CAS-2798) on superdari to the petitioner in FIR No.48 dated 15.03.2021
registered under Sections 18 and 29 of NDPS Act at Police Station
Ismailabad, District Kurukshetra.
2. The brief facts of the case are that an FIR No.48 dated
15.03.2021 under Sections 18 and 29 of the NDPS Act at Police Station
Ismailabad, District Kurukshetra came to be registered against one Joga
Singh, who was subsequently arrested and 150 grams of opium was recovered
from him. During the course of investigation, he is stated to have suffered a
disclosure statement, wherein he stated that the petitioner had provided the
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contraband to him. Based on the said disclosure statement, the petitioner was
arrested, a recovery of Rs.4000/- was effected from him and he was
subsequently granted the concession of bail vide order dated 05.05.2021
(Annexure P-2). When the petitioner was arrested, one vehicle make Maruti
Swift LDI bearing Registration No.DL-45CAS-2798 (later numbered as
PB11-CY-4120) came to be recovered from the petitioner.
3. Subsequent to the grant of bail, the petitioner being the registered
owner of the vehicle moved an application under Section 451 Cr.P.C. read
with Section 60(3) of the NDPS Act for release of the said vehicle on
superdari. The said application came to be dismissed vide order dated
10.02.2022 (Annexure P-3). The said order has been impugned in the present
petition.
4. The learned counsel for the petitioner contends that the petitioner
was the registered owner of the said car. In fact, he had purchased the same
from one Ravi son of Rambir Singh resident of Delhi. The said car bore
chassis No.MA3FHEB1S0044250 and Engine No.D13A0387328. On
obtaining an NoC in favour of R.T.A, Patiala, the same was re-registered as
PB11-CY-4120. The new R.C. in the name of the petitioner was issued on
17.09.2021. The copy of the original R.C. in favour of Ravi is annexed as
Annexure P-5 to the petition, the subsequent R.C. in the name of the
petitioner is annexed as Annexure P-6 to the petition and the copy of the
affidavit furnished by the petitioner is annexed as Annexure P-7 to the
petition. He contends that the Special Court has rejected the application of the
petitioner on untenable grounds. In fact, it has been clearly established from
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the record that the vehicle bearing No.DL-4CAS-2798 was the same one,
which was subsequently re-numbered as PB11-CY-4120.
She contends that a Division Bench of this Court in the case of
Gurbinder Singh @ Shinder Versus State of Punjab, 2016(4) R.C.R.
(Criminal) 492 after examining the provisions contained in Sections 60 and
63 of the NDPS Act and Sections 451, 452 and 457 of the Cr.P.C. has held
that there was no specific provision debarring the release of the vehicle seized
under the NDPS Act. It has been observed that neither the State nor the owner
of the vehicle was to be benefited in any manner if the vehicle remained in
the premises of the Police Station occupying space and causing inconvenience
to the Department. Even otherwise, the condition of the vehicle was also
likely to deteriorate being subjected to the vagaries of the weather.
She has referred to the judgment of the Hon'ble Supreme Court
in Sunderbhai Ambalal Desai vs. State of Gujarat, 2003(1) RCR (Criminal)
380 to contend that when a vehicle was lying parked, unattended, the valuable
parts of the vehicle were casually taken away or stolen and its condition
would substantially deteriorate. Subsequently, if the Courts came to the
conclusion that the vehicle was not used in the commission of the crime, the
owner would be able to collect only scrap of the vehicle. In other words,
nobody was to benefit from the idle parking of the vehicle unattended in the
premises of the Police Station.
It is thus, her contention that the vehicle ought to be released to
the petitioner on such conditions as imposed by this Court.
5. A reply dated 17.11.2022 has been filed on behalf of the
respondent-State by the learned State counsel by way of an affidavit of
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Gurmail Singh, HPS, Deputy Superintendent of Police, Pehowa, Kurukshetra
and the same is taken on record. He contends that the petitioner is the alleged
supplier of the contraband to the arrested accused Joga Singh, though no
contraband has been recovered from the petitioner. In fact, the vehicle in
question which was lying parked in the premises of Police Station Ismailabad,
Kurukshetra was initially registered in the name of Ravi and subsequently
came to be registered in the name of the petitioner. The petitioner was
involved in two other cases under the NDPS Act and looking at his
antecedents it was certainly possible that he would commit similar offences
in future and therefore, the vehicle ought not to be released to him.
6. I have heard the learned counsel for the parties at length.
7. This Court in Gurbinder Singh @ Shinder Versus State of
Punjab (supra) held as under:-
"13. A vehicle used for committing rape and murder is being
released in the garb of Section 451 Cr.P.C. as interpreted by
the Hon'ble Supreme Court in Sunderbhai Ambalal Desai's
case (supra). When the vehicles seized in such heinous
crimes are released for interim custody, there is no logic in
denying interim custody of the vehicle seized under the
NDPS Act. Neither the State nor the owner of the vehicle is
going to be benefited if the vehicle in the premises of the
police station occupies a larger space posing inconvenience
to the Police Department. Further, it is an open secret that
when a vehicle is parked unattended, the valuable parts of
the vehicle are casually taken away or stolen. Finally, when
the Court comes to a conclusion that the vehicle was used
for committing the crime, the vehicle which was kept in the
open would have substantially deteriorated. Likewise, if the
Courts take a final decision that the vehicle was not at all
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used for commission of the crime or the vehicle was used
without the knowledge of the owner thereof, the owner will
have to collect only the scrap of the vehicle. In other words,
nobody is going to be benefited out of idle parking of vehicle
totally unattended in the premises of the police station.
**** **** ****
19. On a careful perusal of the above observation made by
the Hon'ble Supreme Court, we find that no distinction was
made between the vehicles seized under the Scheme of
Cr.P.C. and the vehicles seized under the NDPS Act. In the
special facts and circumstances of that case, the Hon'ble
Supreme Court came to a conclusion that the High Court
was not justified in releasing the vehicle. The Hon'ble
Supreme Court has not laid down in the above judgement
that the vehicle seized under the NDPS Act is not to be
released on sapurdari. There was also no specific
observation that the vehicles seized under the NDPS Act will
have to be treated separately while considering the plea for
interim custody thereof. Therefore, the above observation
made by Hon'ble Supreme Court cannot be cited for
rejecting the plea for release of the vehicle seized under the
NDPS Act on sapurdari. In Tarsem Singh's case (supra), a
totally different issue as to whether a Sub Divisional Judicial
Magistrate who was not the Special Judge conferred with the
power to try the case under the NDPS Act could pass an
order releasing the vehicle on sapurdari had arisen for
determination. In the aforesaid case, the Division Bench of
this Court has not made any observation that the trial Judge
empowered to try the case under the NDPS Act has no
authority to release the vehicle for interim custody on
sapurdari. Nor was any decision taken in the said case that
the vehicle seized under the NDPS Act cannot at all be
released on sapurdari.
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**** **** ****
23. The revision petition be posted before the learned Single
Judge for determination of the revision in the light of the
reference answered by us.
{emphasis supplied}
Similarly, this Court in Rajan Versus State of Punjab, CRM-
8650-2021 in CRA-S-1482-2020, held as under:-
" The Hon'ble Supreme Court in the case of Sunderbhai
Ambalal Desai Versus State of Gujarat 2003(1) RCR
(Criminal) 380, has laid down certain guidelines for the
release of impounded vehicles which are reproduced as
under:-
"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."
Since the vehicle in question is lying unattended and is
parked in Police Station Special Task Force, Phase IV
Mohali, its condition will deteriorate day-by-day and it will
be reduced to junk.
Accordingly, the present application is allowed and the
vehicle in question i.e. Swift Dzire bearing registration
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No.PB-13-BB-1852 is ordered to be released to the
applicant-appellant on superdari, on his furnishing
indemnity bonds/surety bonds of the like amount or on the
terms and conditions which may be imposed by Chief
Judicial Magistrate/Duty Magistrate, SAS Nagar, Mohali.
The applicant-appellant shall submit an undertaking that
the said vehicle shall not be put to any illegal use in future
and he will produce the vehicle in the Court, if so required.
CRM-8650-2021 stands disposed of."
[Emphasis supplied]
This Court in Jaskaran Singh @ Settu Versus State of Haryana
passed in CRR-1234-2020, decided on 15.11.2022, has allowed the prayer of
the petitioner for release of the vehicle on superdari keeping in view the fact
that the condition of the vehicle was deteriorating day-by-day and would be
reduced to junk in due course.
8. In the present case, the vehicle in question is lying unattended
and is parked at Police Station Ismailabad since March, 2021. Its condition
would certainly deteriorate day-by-day and in turn it would be reduced to
junk in case the same is not handed over to the petitioner on the imposition of
suitable conditions.
It was not the case of the answering respondent-State that the
vehicle in question has been used in the prior two occurrences leading to the
registration of FIR No.141 dated 07.11.2012 registered under Sections 18, 61,
85 of the NDPS Act at Police Station Julka or FIR No.476 dated 30.11.2020
registered under Sections 18, 61, 85 of the NDPS Act at Police Station
Ambala Cantt. Therefore, at this stage, it cannot be held that in case the
vehicle was released on superdari an offence of a similar kind was likely to
be committed by the petitioner using the said vehicle.
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9. Accordingly, in view of the aforementioned discussion and the
judgments (supra), the present petition is allowed and the vehicle in question
i.e. Maruti Swift LDI bearing registration No.PB11-CY-4120 (earlier
numbered as DL-CAS-2798) is ordered to be released to the petitioner on
superdari, on his furnishing indemnity bonds/surety bonds of the like amount
or on the terms and conditions which may be imposed by the Chief Judicial
Magistrate/Duty Magistrate, concerned.
10. In addition, the petitioner shall submit an undertaking that the
said vehicle shall not be sold, its physical condition changed or be put to any
illegal use in future and that he will produce the vehicle in the Court, if so
required.
(JASJIT SINGH BEDI)
JUDGE
21.11.2022
JITESH Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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