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2010 DIGILAW 1386 (ALL)

PRATEEK GUPTA v. STATE OF U. P.

2010-04-28

YOGENDRA KUMAR SANGAL

body2010
JUDGMENT Hon’ble Yogendra Kumar Sangal, J.—This is an application under Section 482 Cr.P.C., to quash the order dated 29.1.2010 passed by the Additional District & Sessions Judge/Fast Track Court No. 5, Shahjahanpur as he refused and to release the Maruti Car No. UP -27J-107 involved in the case S.T. No. 56 of 2009 under Section 18 N.D.P.S.Act. 2. Heard learned counsel for the applicant, learned AGA for the State and perused the record. 3. An application was moved by the owner /applicant Prateek Gupta, before the trial Court to get released the Vehicle but the same was rejected by the trial Court saying that in huge quantity, Opium was recovered from the possession of applicant and other persons who were in Car and the Vehicle was being used for transporting the opium, which may be liable to be confiscated under the provisions of the Act and will be required in trial of the accused persons. Aggrieved by this order, this application has been filed. 4. Learned counsel for the applicant argued that without giving sufficient reasons and without, applying mind and taking into consideration the law laid down on the subject by this Court and the apex Court, the application was wrongly rejected by the learned Judge. No useful purpose will be served to detain the vehicle at police station. If it remains there, will become out of order very soon and also will become junked with the passage of time. 5. Learned AGA argued that the vehicle is case property and liable for confiscation, if the accused persons are convicted for the offence. Possibility also cannot be ruled out that applicant may transfer the vehicle and destroy the evidence to be used against them. 6. Now almost, it is settled provision of law that under the provisions of Section 451 Cr.P.C., the Court before whom the property is produced is empowered to release the vehicle during inquiry and trial of the accused persons. In case Basavva Kom Dyamangouda Patil v. State of Mysore, (1977) 4 SCC 358 , apex Court held “the object and scheme of the various provisions of the Code appear to be that where the property which has been subject- matter of 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. 7. The Hon’ble Court further observed in the case that High Court and Session 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 should be passed by the Court regarding its disposal. In a criminal case Police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry and trial. In this broad sense therefore, the Court exercise over all control on the actions of the Police Officer in every case where it has taken cognizance. 8. In another case, State of Madhya Pradesh v. Rameshwar Rathor, 1990 (2) SCC 480, relating to release of Truck seized for the alleged contravention of provisions of Essential Commodities Act, the Apex Court repelling the contention that in view of the provisions of Section 6A and Section 7 of the Essential Commodities Act, the criminal Court had no jurisdiction, held that the criminal Court retain the jurisdiction and was not completely ousted of the jurisdiction. From the law laid down by the Apex Court, it clearly shows that rejecting the application of the applicant only on the ground that it may be liable for confiscation and it was used for transporting the Narcotic substance was against the law. If the vehicle is given in the Supurdgi and custody of the owner of the vehicle and later on at final stage of the case, it is found that the same is liable for the confiscation. After confiscating the same Court can direct the owner to produce the vehicle before the Court or the authority concerned. 9. Accused persons have not accepted the case of the prosecution till now that Opium was recovered from their possession and Vehicle was used by them for transporting the same. After confiscating the same Court can direct the owner to produce the vehicle before the Court or the authority concerned. 9. Accused persons have not accepted the case of the prosecution till now that Opium was recovered from their possession and Vehicle was used by them for transporting the same. It is established law that till the accused persons are not held guilty, they shall be deemed innocent. On behalf of the applicant in affidavit details are given in what facts and circumstances, he was apprehended by the police and falsely challaned in the present case. 10. In another case, Sundar Bhai Ambalal Desai v. State of Gujarat, 2003 (46) ACC 203, the apex Court has issued directions regarding the disposal of the property, to the trial Court and Magistrates. It was observed by the apex Court that if the powers given to the learned Magistrate under Section 451 Cr.P.C. are exercised expeditiously and judicially 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 panchanama 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; (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.“ For release of the vehicle, apex Court further also laid down certain guidelines in Paragraphs 13, 14 & 15 of the judgement and opined as follows : “In our view whatever be the situation, it is of no use to keep 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.“ Apex Court also gone up to this extent that this can be done pending hearing of the applications for returning of the vehicle. 11. In the present case, vehicle was seized by the Police on the alleged date of occurrence on 2.3.2009 and is at the police station. 11. In the present case, vehicle was seized by the Police on the alleged date of occurrence on 2.3.2009 and is at the police station. Learned counsel for the applicant argued that proper care is not being taken of the vehicle by the Police. If the vehicle is not released in his favour, possibility cannot be ruled out that it may become out of utility. 12. Purpose of the prosecution can be served easily, if the vehicle is given in the supurdgi of the owner of the vehicle by directing to produce the vehicle before the Court as and when it requires. 13. In the aforesaid facts and circumstances of the case, interference of this Court in the matter in jurisdiction under Section 482 Cr.P.C. is required. Application is to be allowed. Accordingly, the application is hereby allowed. Order passed by the learned Judge rejecting the application is hereby set aside. Learned Judge is directed to pass an appropriate order in the light of the observations made above, within 15 days when the certified copy of this order is placed before him. ————