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2014 DIGILAW 401 (CHH)

Arvind Kumar Pandey v. State of C. G.

2014-11-18

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. The petitioner has preferred this petition questioning the legality, validity and correctness of the order dated 9-9-2014 passed by the 2nd Additional District Judge, Raigarh, affirming the order dated 13-8-2014 passed by the Court of Judicial Magistrate First Class, Gharghoda, District Raigarh, whereby the application for release/custody of his vehicle from custody filed by the applicant under Section 451 Cr.P.C. was rejected by the said Court. The applicant is the registered owner of offending Hywa truck Vehicle bearing registration No. CG-13-L/-281 and the said vehicle was seized in connection with Istagasha No. 2/2014 by the Police Lailunga, District Raigarh The said vehicle was found loaded with quartz in abandoned condition which is said to be stolen property. 2. The applicant filed an application under Section 451 Cr.P.C. for release of said vehicle stating inter alia that he is the registered owner of said vehicle as his name has duly been recorded in the RTO records and as being the registered owner, he is entitled for release of the said vehicle in his favour. The application filed for custody of the said vehicle has been rejected by the Judicial Magistrate First Class by order dated 13-8-2014. Thereafter, a revision has been filed and on being revision filed, the revisional Court has also rejected the same by order dated 9-9-2014. Being aggrieved by the aforesaid orders, the instant petition under Section 482 of the Code has been filed. 3. Sakti Raj Sinha, learned counsel appearing for the applicant would submit that the vehicle is remain lying unused in the police station, no useful purpose is going to be served in keeping the vehicle in police station. In support of his contention, he placed reliance in CM Mudalia Vs. State of Gujarat AIR 2003 SC 638 , Khema Vs. State of Rajasthan 2000 Cri. L.J. 2079 and Kailash Vs. State of M.P. 1999 (11) MPWN 133. 4. On the other hand, learned counsel appearing for the State supported the order impugned and submits that order rejecting the applicant's application for release of vehicle does not warrant any interference by this court as the reasons assigned for rejecting the application are just and proper. 5. I have heard the counsel appearing for the parties and perused the order impugned. 6. In a decision rendered by the Supreme Court in case of Sunderbhai Ambalal Desai Vs. 5. I have heard the counsel appearing for the parties and perused the order impugned. 6. In a decision rendered by the Supreme Court in case of Sunderbhai Ambalal Desai Vs. State of Gujrat, Their Lordships of Supreme Court have held that powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously, and held in para 7 to 10 which read as under: "7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. 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 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: 8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil Vs. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:-- "4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an 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. It is manifest that there may be two stages when the property may be returned to the owner. 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. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions 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, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance." 9. The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. 10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest." 7. 10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest." 7. In the case of Khema (Supra), in a similar situation, wherein the application for release of vehicle, which alleged to be used in commission of offence relating to transportation of narcotics substance, was considered and taking into consideration that the vehicle if allowed to lie in the police station, is likely to be damaged and ruined and therefore, in such circumstances, the court found it proper to release the vehicle. 8. In the case of Kailash (Supra) also, considering the aspect with regard to release of vehicle alleged to be used in connection with commission of offence under Excise Act, taking into consideration that if the vehicle is not allowed to be used for a longer time, it is likely to rot or rust and that unless there are compelling circumstances, normally such application should not be rejected. The vehicle was ordered to be released under interim custody of the registered owner. 9. In the present case, the applicant is registered owner of the said vehicle and the applicant has not been alleged to have been involved in the commission of offence. The vehicle remained lying unused since 10-3-2014 and there is no other compelling reason warranting rejection of application for custody of said vehicle in favour of applicant. Consequently, impugned order rejecting the application for custody of said vehicle deserves to be and is hereby set aside. Accordingly, Criminal Misc. Petition is allowed. It is directed that vehicle involved in the case i.e. Hywa Truck bearing registration No. CG 13-L/0281 shall be released in favour of applicant on Supurdnama on the following conditions: 1. That, he shall execute a supurdnama to the tune of Rs. 15,00,000/-. 2. That, he shall not alienate or transfer the property to anybody else till the disposal of the trial. 3. That, he shall not create any third party interest on the property. 4. That, he shall produce the property with its documents retaking to registration and insurance, as and when directed by the court during the course of trial. 5. That, he shall produce a solvent surety to the tune of Rs. 15,00,000/- ensuring the compliance of the conditions of the supurdnama executed by him. 6. 4. That, he shall produce the property with its documents retaking to registration and insurance, as and when directed by the court during the course of trial. 5. That, he shall produce a solvent surety to the tune of Rs. 15,00,000/- ensuring the compliance of the conditions of the supurdnama executed by him. 6. That, the vehicle will be duly insured at the time of release from the trial court (if not already insured). Application allowed