Punjab-Haryana High Court
Amir Hussain Wani vs State Of Punjab on 1 June, 2023
neutral citation No. 2023:PHHC:080537
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-659-2021 (O&M)
Reserved on:- April 25, 2023
Date of Pronouncement:- June 01, 2023
Amir Hussain Wani ...Petitioner
vs.
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. M. S. Basra, Advocate for the petitioner.
Mr. Amit Shukla, AAG Punjab.
****
HARKESH MANUJA, J.
1. By way of present revision petition, challenge has been laid to
an order dated 23.04.2021 passed by Ld. Judge Special Court, Pathankot,
whereby prayer made on behalf of petitioner for release of Truck bearing
registration No. JK-03C-7383 on supurdari has been declined.
2. Briefly stating, facts of the case are that the petitioner was
implicated in FIR No.116 dated 11.06.2020 under Sections 25, 54, 59 of
Arms Act, Section 3, 4, 5 of Explosive Substances Act and Section 13, 157,
18, 189B, 20 of Unlawful Activities (Prevention) Act, 1967 (for short 'the
Act') Police Station Sadar Pathankot. Allegations levelled against the
petitioner were of procuring and transporting weapons from Amritsar to
Kashmir for Lashkar-e-toiba terrorist activities in Kashmir in the Truck
owned by him bearing registration No.JK-03C-7383.
3. In the present case, the investigating has been concluded and
petitioner was released on default bail vide order dated 08.02.2021. Having
been released on bail, the petitioner being owner of Truck in question
moved an application for its release on supurdari, but said prayer was
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neutral citation No. 2023:PHHC:080537
declined by Judge Special Court, Pathankot vide order dated 23.04.2021
with the observations that in case, the vehicle was released on supurdari,
petitioner/applicant would commit the offence for carrying arms so as to
cause loss of security to the country.
4. Impugning the aforesaid order dated 23.04.2021, learned
counsel for the petitioner submits that the vehicle is lying idle at Police
Station in open for the past almost three years now and would be rendered
junk and useless in case it is not released on Superdari. He also submits
that vehicle in question was used for transportation of goods by the
petitioner and his family so as to earn his livelihood. Learned counsel
further submits that the release can be ordered against heavy
bonds/security. Pointing out towards Chapter V of the Act and in particular
Sections 24-26 thereof, learned counsel vehemently submits that the
investigating agency has not taken any step towards the confiscation of the
vehicle in question as per the procedure contemplated therein and thus,
there was no use of keeping the vehicle in question in Police Station. In
support thereof, learned counsel refers to two judgments viz. "Sunderbhai
Ambalal Desai Vs. State of Gujarat" in SLP (Criminal) No.2745 of 2002
and Delhi High Court judgment in Manjit Singh Vs. State in CRL. M.C.
4485 of 2013 decided on 10.09.2014.
5. On the other hand, prayer made herein has been opposed by
learned State counsel while submitting that allegations levelled against
petitioner are of serious nature and in case, the vehicle in question is
released in his favour, in all probability the same is going to be used
against the interest of nation for different terrorist activities. As regards
procedure prescribed under Chapter V of the Act, learned State counsel
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neutral citation No. 2023:PHHC:080537
while referring to short reply dated 30.03.2022/ 31.03.2022 admits that no
steps have been initiated for the purpose of confiscation of Truck in
question as per the procedure laid down under Section 24 read with
Section 25 thereof.
6. I have heard learned counsel for parties and gone through the
paper-book as well as the law cited at the Bar. I find force in the arguments
raised by the learned counsel for the petitioner. Practically, the average life
of a transport vehicle like Truck is around 15- 20 years only and with
respect to the vehicle in question, 03 years have already passed, it lying
idle in the police station serving no purpose; rather it is a burden on the
State itself. It was in this context only that in Sunderbhai's case (supra),
following observations were made by the Hon'ble Apex Court:-
"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."
8. Relying upon Sunderbhai's case (supra), a Division Bench of
this Court in case "Gurbinder Singh @ Shinder vs State of Punjab"
bearing No CRR No.1765 of 2015 while deciding reference on 19.09.2016
observed that when a vehicle involved in a heinous crimes like rape are
released for interim custody, there is no logic in denying interim custody of
the vehicle seized under the NDPS Act. For reference, relevant para 13 of
Gurbinder Singh's case (supra) is reproduced hereunder:-
"13. A vehicle used for committing rape and murder is
being released in the garb of Section 451 Cr.P.C. as
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neutral citation No. 2023:PHHC:080537
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
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."
9. At this point, it is also relevant to notice that the Act has specific
provisions for the seizure of property involved in a case. Sections 24 & 25
of the Act being relevant for this case are reproduced hereunder:-
"24. Reference to proceeds of terrorism to include
any property intended to be used for
terrorism.--In this Chapter, unless the context
otherwise requires, all references to "proceeds of
terrorism" shall include any property intended to
be used for terrorism.
24A. Forfeiture of proceeds of terrorism.--(1) No
person shall hold or be in possession of any
proceeds of terrorism.
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(2) Proceeds of terrorism, whether held by a terrorist
organisation or terrorist gang or by any other
person and whether or not such terrorist or other
person is prosecuted or convicted for any offence
under Chapter IV or Chapter VI, shall be liable to
be forfeited to the Central Government or the
State Government, as the case may be, in the
manner provided under this Chapter.
(3) Where proceedings have been commenced under
this section, the court may pass an order directing
attachment or forfeiture, as the case may be, of
property equivalent to, or, the value of the
proceeds of terrorism involved in the offence.
25. Powers of investigating officer and Designated
Authority and appeal against order of
Designated Authority.--(1) If an officer
investigating an offence committed under Chapter
IV or Chapter VI, has reason to believe that any
property in relation to which an investigation is
being conducted, represents proceeds of
terrorism, he shall, with the prior approval in
writing of the Director General of the Police of the
State in which such property is situated, make an
order seizing such property and where it is not
practicable to seize such property, make an order
of attachment directing that such property shall not
be transferred or otherwise dealt with except with
the prior permission of the officer making such
order, or of the Designated Authority before whom
the property seized or attached is produced and a
copy of such order shall be served on the person
concerned.
(2) The investigating officer shall duly inform the
Designated Authority within forty-eight hours of the
seizure or attachment of such property.
(3) The Designated Authority before whom the seized
or attached property is produced shall either
confirm or revoke the order of seizure or
attachment so issued within a period of sixty days
from the date of such production:
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Provided that an opportunity of making a
representation by the person whose property is
being seized or attached shall be given.
(4) In the case of immovable property attached by the
investigating officer, it shall be deemed to have
been produced before the Designated Authority,
when the investigating officer notifies his report
and places it at the disposal of the Designated
Authority.
(5) The investigating officer may seize and detain any
cash to which this Chapter applies if he has
reasonable grounds for suspecting that--
(a) it is intended to be used for the purposes of
terrorism; or
(b) it forms the whole or part of the resources of a
terrorist organisation:
Provided that the cash seized under this sub-section by
the investigating officer shall be released within a period
of forty-eight hours beginning with the time when it is
seized unless the matter involving the cash is before the
Designated Authority and such Authority passes an order
allowing its retention beyond forty-eight hours.
Explanation.--For the purposes of this sub-section,
"cash" means--
(a) coins or notes in any currency;
(b) postal orders;
(c) traveller's cheques;
1[(ca) credit or debit cards or cards that serve a similar
purpose;]
(d) banker's drafts; and
(c) such other monetary instruments as the Central
Government or, as the case may be, the State
Government may specify by an order made in writing.
(6) Any person aggrieved by an order made by the
Designated Authority may prefer an appeal to the court
within a period of thirty days from the date of receipt of
the order, and the court may either confirm the order of
attachment of property or seizure so made or revoke
such order and release the property."
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It is admitted position by the State that no proceedings under
Sections 24 or 25 of the Act were initiated on its behalf with respect to the
vehicle in question. Though, when specific provisions are available in an
Act, general provisions of Cr.P.C. like Section 451 cannot be resorted to, in
view of the judgment of Hon'ble Apex Court in "State of M.P Vs. Uday
Singh" reported as (2020) 12 SCC 733, however, in the facts and
circumstances of the present case, when admittedly the proceedings under
the Act regarding confiscation of vehicle in question have not been initiated,
the applicability of the Section 451 of Cr.P.C. cannot be ruled out.
10. Under somewhat similar circumstances, the Jharkhand High
Court vide its decision dated 28.01.2010 passed in Crl. Rev. No.742 of
2009 titled as "Nageshwar Mahto Vs. State of Jharkhand" & Patna High
Court in case of "Babli Devi Vs. State of Bihar" Crl. Misc. No. 48020 of
2016, decided on 08.05.2018 have also ordered for release of vehicle
involved in the FIRs relating to the provisions of the Act subject to
verification of ownership, while observing about non-initiation of
confiscation proceedings as relevant factor. Relevant portion from para
No.11 of Babli Devi's case (supra) is reproduced hereunder for reference:-
"11. Accordingly, the impugned order dated 28.09.2015
passed by the learned Additional Sessions Judge,
VI, Bhagalpur in Sessions Trial No. 260 of 2012
arising out of Sultanganj P. S. Case No. 45 of 2011
is set aside. The matter is remitted back to the trial
court. The learned trial Judge shall be required to go
through the decisions of the Supreme Court noted
above and pass appropriate order in favour of the
petitioner in case the petitioner is found to be the
registered owner of the vehicle in question and no
confiscation proceeding in respect of the vehicle is
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going on. He shall be required to dispose of the
matter as early as possible, preferably within one
month from the date of receipt/production of a copy
of this order."
11. Argument raised by the learned State counsel that the vehicle
involved can again be used by the petitioner for other terrorist activities is
also meritless on two counts; firstly, proceeding under Sections 24 and 25
of the Act can always be initiated against the petitioner with regard to the
vehicle in question, if any such action on the part of petitioner is found and
secondly, when petitioner is already out on bail, if he or his vehicle is
subsequently found to be involved in any other such case, application can
also be made for the cancellation of his bail on this ground in the present
case. Even the petitioner has not been found to be involved in any such
activity since the date of registration of present FIR and thus, the
apprehension of the State appears to be farfetched at this stage and that
too without substantial material to support.
12. In view of the discussion held above, present petition is allowed
and order dated 23.04.2021 passed by Ld. Judge Special Court,
Pathankot, is hereby set aside and the concerned vehicle i.e. Truck bearing
registration No.JK-03C-7383 be released on superdari in favour of
petitioner on his furnishing adequate personal and surety to the satisfaction
of the trial Court.
13. Pending miscellaneous application(s), if any, shall also stand
disposed of.
June 01, 2023 (HARKESH MANUJA)
sanjay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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