Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 1162 (RAJ)

Anjum Ali v. State of Rajasthan

2011-05-27

R.S.CHAUHAN

body2011
JUDGMENT 1. - Being aggrieved with the order dated 11.3.2011 passed by the learned Special Judge, N.D.P.S. Cases, jodhpur, whereby the learned Judge has rejected the application filed by the petitioner under Section 457 Cr.P.C., for releasing of Honda CRV, the petitioner has approached this Court. 2. The brief facts of the case are that the petitioner is a power of attorney holder of Ms. Arshiya Sultan. Ms. Arshiya Sultan is the partner of Indian Broiler Farm. Since the visit of the partner were frequent, the said vehicle was given to one Mr. Vikas Datatray Naik. Mr. Vikas Naik parked the vehicle - Honda CRV bearing No. M.H./31, C.N.1115 outside his house. In the night of 17.9.2010, the said vehicle was stolen. Therefore, a F.I.R. was lodged at Versova Police Station Mumbai, registered as F.I.R No. 304/2010. On 10.10.2010 Police found one Honda CRV carrying illegal Doda post (Polly Straw) and opium in an abandoned condition at Bhagat Ki Kothi, Railway Station, Jodhpur. Thereafter a F.I.R No. 68/2010 was registered on 10.10.2010 at Police Station - G.R.P. (N.R) Jodhpur under Sections 8/18, 8/15 of N.D.P.S. Act, 1985 and under Section 3/25 of the Arm Act against unknown persons. In the said F.I.R, it was alleged that the vehicle C.R.B. Honda bearing No. RJ-27, CA-5333, engine No. K24A15401547, Chasis Number JHLRD77495C310323 was recovered from the Bhagat Ki Koti Railway Station, Jodhpur Carrying Doda post of 347 Kg. and 500 gram and 100 gms., of opiwun. The petitioner being a special power of attorney Holder of the owner of the vehicle rushed to Jodhpur and filed an application under Section 457 of Cr.P.C. before the learned Special Judge, N.D.P.S. Act Cases, Jodhpur. He requested for release of the seized vehicle. The learned trial Court after hearing the parties rejected the application filed by the petitioner under Section 457 vide order dated 18.11.2010. Being aggrieved from the order dated 18.11.2010, the petitioner filed a revision petition, S.B. Criminal Revision Petition No. 854/2010 before this Hon'ble Court. This Court, vide order dated 6.12.2010, dismissed the revision petition. The petitioner came to know that the accused in the case were arrested and their statement have also been recorded. Therefore,, the petitioner again field an application under Section 457 Cr.P.C. However, the learned Special Judge, N.D.P.S., Jodhpur vide order dated 11.3.2011 dismissed the application. Hence, this petition before this Court. 3. The petitioner came to know that the accused in the case were arrested and their statement have also been recorded. Therefore,, the petitioner again field an application under Section 457 Cr.P.C. However, the learned Special Judge, N.D.P.S., Jodhpur vide order dated 11.3.2011 dismissed the application. Hence, this petition before this Court. 3. This learned counsel for the petitioner has relied upon the cases of Sunderbhai Ambalal Desai v. State of Gujarat, JT 2002 (10) SC 80 , Bharat Mehta v. State by Inspector of Police, Chennai, AIR 2008 SC 1970 and on the case of General Insurance Council & Ors. v. State of Andhra Pradesh & Ors., 2010 Cri.L.J. 2883 to buttress his contention that even if a vehicle were involved in a criminal offence, the petitioner is entitled to seek the custody of the vehicle. Secondly, the Apex Court had laid down certain guidelines for exercising of power under Section 451 Cr.P.C in the of Sunderbhai Ambalal Desai (supra.) However the said guidelines have been ignored by the learned Judge while dismissed the application under Section 451 Cr.P.C. 4. On the other hand, the learned Public Prosecutor has vehemently contended that under the provisions of N.D.P.S. Act, the vehicle is Subject to confiscation by the Government. Therefore, the custody of the vehicle should not be given to the petitioner. 5. Hand the learned counsel for the parties and perused the impugned other as well as the case law citied at the Bar. 6. In the case of Sunderbhai Ambalal Desai (supra), the Hon'ble Supreme Court has laid down the guidelines for the exercise of power under Section 451 Cr.P.C. The guidelines dealing with the vehicles are as under: "13. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the Police Station premises, number of vehicles are kept unattended and vehicles becomes junk day by day. It is his contention that appropriate direction should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicle if required by the Court at any point of time. 14. 14. However, the learned Counsel appearing for the petitioners submitted that this question of handing over of vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. 15. In our view, whatever be the situation, it is of no use to keep seized vehicles at the Police Station for a long period. It is for the Magistrate to pass appropriate orders immediately by talking 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. 16. In case where the vehicle is not claimed by the accused, owner or the Insurance Company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the Insurance Company than Insurance Company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance Company fails to take possession the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six month from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photograph of the said vehicle should be taken and detailed panchnama should be prepared. 7. Thus according to the Apex Court even if the vehicle were involved in a commission of crime even then both in the interest of the owner, and in the interest of the nation, the vehicle should be returned to the owner after imposing certain conditions. 8. Keeping in view the guidelines established by the Apex Court in the case of Sunderbhai Ambalal Desai (supra), this Court has no hesitation is setting aside the order dated 22.10.2010 and in directing that the custody of the Honda C.R.V., bearing No. M.H.31, C.N.-1115, engine No. K24A15401547, Chasis No. JHRD77495C310323, shall be returned forthwith to the petitioner provided the petitioner submits a bank guarantee of the value of the said vehicle before the learned trial Court. Moreover, the petitioner is directed not to transfer, or to sell the said vehicle to a third party. Moreover, the petitioner is directed not to transfer, or to sell the said vehicle to a third party. Furthermore, the petitioner shall submit a written undertaking before the learned trial Court in case the said vehicle is required for the propose of confiscation, the same shall be made available to the learned trial Court at the time of passing of the final Judgment in the criminal trial.The revision petition is, hereby, allowed.Revision petition allowed. *******