Reshma Bee vs State Of Uttarakhand
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Uttarakhand High Court

Reshma Bee vs State Of Uttarakhand on 28 February, 2025

Author: Pankaj Purohit

Bench: Pankaj Purohit

HIGH COURT OF UTTARAKHAND AT NAINITAL
        Criminal Misc. Application U/s 482 No. 643 of 2023
                       28th February, 2025
Reshma Bee                                           ......Applicant
                                 Versus

State of Uttarakhand                                 ....Respondent
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Presence:-
Mr. Mani Kumar, Advocate for the applicant.
Mr. B.C. Joshi, A.G.A. with Ms. S.B. Dobhal, B.H. for the State.
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Hon'ble Pankaj Purohit, J.

By means of the present C482 application, the applicant has put to challenge the order dated 22.11.2022, passed by learned Special Judge (N.D.P.S.), whereby, Misc. Application No.359 of 2022, "State of Uttarakhand Vs. Touseem" under Sections 8/21/29 of N.D.P.S. Act, 1985 registered at Police Station Sitarganj, District Udham Singh Nagar, to release the Vehicle No. UK06-BC-2836 in favour of the applicant, claiming herself to be registered owner of the said vehicle, has been rejected.

2. Facts of the case as reflected from the FIR are that the aforesaid vehicle was intercepted by the Police and on search contraband substance under NDPS Act, 1985 was recovered from the persons riding on vehicle and accordingly offence under the provisions of Sections 8/21/29/60 of N.D.P.S. Act, 1985, was registered with Police Station Sitarganj, District Udham Singh Nagar (FIR NO.392 of 2022) against the applicant and the aforesaid vehicle was also seized. An application was moved on behalf of the owner of the vehicle (applicant herein) for its release, which has been rejected by the impugned order.

3. It was contended by the applicant that she was

registered owner of the aforesaid vehicle (a Motorcycle) No. UK06-BC-2836; on 22.09.2022 her son had taken the vehicle; the Police arrested Tahseem and sent him to prison and the motorcycle was seized and was kept in Police Station Sitarganj. The applicant further submitted that the Motorcycle was standing under the sky and the same would diminish its value.

4. The applicant made an undertaking that he would not transfer the vehicle, and as and when the Court direct, the aforesaid vehicle shall be produced before the Court. She requested vehicle to be released in her favour.

5. The application moved by the applicant was contested by the respondent - State saying that the vehicle was liable for confiscation under Section 60 of NDPS Act, and therefore the application for release of vehicle deserves to be rejected.

6. The learned Special Sessions Judge, NDPS rejected the said application saying that the vehicle was used by son of the applicant for carrying contraband substance; accordingly a charge sheet was submitted against him under Section 8/21/29/60 of the NDPS Act being Charge Sheet and since applicant's son is an accused under the aforesaid sections, there was no reason to release the vehicle.

7. Heard learned counsel for the parties.

8. It is contended by learned counsel for the applicant that the vehicle has been lying unattended at the police station compound and the same is exposed to sun and rain, thereby rendering it to natural wear and tear and open to deterioration. There is no use of keeping vehicle there in police station and the said vehicle be

released in his favour in view of Sections 451 and 457 of the CrPC.

9. In support of his contention, he relied upon the judgment rendered by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in (2002) 10 SCC 283.

10. He further relied upon the judgment of Co- ordinate Bench of this Court in Criminal Misc. Application No.368 of 2019, Abhijeet Kumar Vs. State of Uttarakhand decided on 10.04.2019 and judgment of this Court rendered in Criminal Misc. Application No.688 of 2024, Sangram Singh @ Santosh Vs. State of Uttarakhand and others decided on 07.01.2025.

11. Relying upon these cases, learned counsel for the applicant submits that in view of Sections 451 and 457 CrPC and as the orders can be passed for release of the property pending conclusion of the trial, if the property is subject to speedy and natural degrade and if otherwise, it is expedient, so to do, the release application should have been allowed. This impugned order suffers from illegality and is liable to be quashed.

12. Per contra, learned State counsel admitted that the applicant is registered owner of the vehicle Motorcycle No. UK06-BC-2836.

13. I have gone through the judgment and order relied upon by learned counsel for the applicant rendered by the Hon'ble Apex Court along with provisions of Sections 451 and 457 of the CrPC.

14. In the case of Sunderbhai Ambalal Desi (supra), the Hon'ble Apex Court has held as under:-

"In our view, whatever be the situation, it is of no use to keep such seized vehicle at the police

station for a long period. It is for the Magistrate to pass appropriate orders immediately by making appropriate bond and guarantee as well as security for returning of the said vehicle, if required at any point of time. This can be done pending hearing of the application for returning of such vehicles."

15. The issue of release of vehicle involved in transportation of NDPS substance also cropped up before the Hon'ble Apex Court quite recently in Criminal Appeal No.87 of 2025, Bishwajit Dey Vs. State of Assam decided on 07.01.2025, in which case the Hon'ble Apex Court has gone into the provisions of Section 60 of NDPS Act in great detail with the help of various case laws and came to this conclusion that in the absence of any specific power under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke general power under Sections 451 and 452 for release, pending decision in the criminal case; the trial court has discretion to release the vehicle in the interim. However this power would have to be exercised, in accordance with law, in the facts and circumstances of each case.

16. For ready reference, para nos.22 and 23 of Bishwajit Dey (supra) are quoted hereinbelow:-

"22. This Court is further of the opinion that there is no specific bar/restriction under the provisions of the NDPS Act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance in the interim pending disposal of the criminal case.

23. In the absence of any specific bar under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for return of the seized vehicle pending final decision of the criminal case. Consequently, the trial Court has the discretion to release the vehicle in the interim. However, this power would have to be exercised in accordance with law in the facts and circumstances of each case."

The Hon'ble Apex Court has allowed the appeal with a direction to the trial court to release the vehicle in-

question in the interim supurdagi.

17. Thus the impugned judgment and order dated 21.01.2023 passed by learned Special Sessions Judge cannot sustain and deserves to be set aside and is accordingly set aside.

18. Thus the C482 application is allowed. The vehicle in-question is directed to be released in favour of the applicant after executing personal bond and two local sureties, each of the like amount, to the satisfaction of the court concerned along with an undertaking that ownership of the vehicle would not be altered, in any condition, whatsoever, and she shall produce the vehicle either before the court concerned or before such other Authority as the Court may direct.

(Pankaj Purohit, J.) 28.02.2025 SK