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Allahabad High Court · body

2016 DIGILAW 2905 (ALL)

DHIRENDRA SINGH THAPA v. STATE OF U. P.

2016-08-23

HARSH KUMAR

body2016
JUDGMENT : Hon'ble Harsh Kumar, J. Affidavit filed on behalf of the revisionist is taken on record. Since A.G.A. has accepted notice on behalf of opposite parties, no need to issue notices to opposite party nos.1 & 2, who are State of U.P. and Sub-Inspector of State Police. Heard Shri B.K. Tripathi, learned counsel for revisionist and the learned A.G.A. This criminal revision has been preferred against the order dated 13.06.2016 passed by Additional Sessions Judge, Court No.1, Maharajganj in Misc. Case No.249 of 2016 (State Vs. Narain Chhetri and others) filed in case crime no.1114 of 2015, under Section 8, 20, 23 of the N.D.P.S. Act, P.S. Nichlaul, District Maharajganj refusing to release the vehicle Scooty Honda Activa no. UP-56P-3793 in favour of its registered owner, the revisionist. Learned counsel for the revisionist submitted that the revisionist is the registered owner of vehicle in question and is not named in the FIR; that the vehicle has been kept in open campus of police station, due to which the same is getting damaged and decayed, diminishing its value; that no offence has been committed by the revisionist or the vehicle and no contrabands were ever recovered from the vehicle in question, rather the recovery has been falsely planted; that the learned Magistrate has acted wrongly with material irregularity in rejecting the release application in view of law laid down by the Apex Court in the case of Union of India Vs. Dinesh Kumar Verma (2005) 9 SCC 330 ; that the judgment of above reported case shows that the order of High Court releasing the vehicle during trial was set aside by Apex Court in view of facts of that case and no principle of law was laid down; that no proceedings for confiscation of vehicle in question were ever initiated or were pending and on account of the provisions of confiscation, if any, the release of vehicle may not be refused; that in view of law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat 2003 (46) ACC 223, the impugned order is liable to be set aside and the vehicle in question may be released in favour of revisionist; that the revisionist undertakes to abide the conditions, if any, imposed on release of vehicle, and to produce the vehicle, if and when required by the court or confiscating authority. Learned A.G.A. supported the impugned order and opposed the revision. The provisions of Section 451 of the Cr.P.C. are as under:- "Section 451. Order for custody and disposal of property pending trial in certain cases - When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of." In present era of revolution in the field of electronics and technology, refusal from release of vehicle in favour of its registered owner, where there is no other claimant, on the ground of its being case property, or without assigning any appropriate reason, may not be held to be just and appropriate. The provisions of Section 451 of Code of Criminal Procedure gives absolute power to Magistrate/court concerned to order for proper custody of vehicle and to release the same in custody of its owner. In such matters the Magistrates or courts concerned are required to exercise their discretion expeditiously and judicially. Judicial notice of the state affairs and facts may be taken that, 'upon recovery of one or the other vehicle in connection with some crime, the police has to keep it in its custody within the campus of police station concerned, and duty bound to produce it as and when required by the court, unless and otherwise ordered to be released in custody of a person by the court. It is also noteworthy that the police stations have not been provided with any separate space like garage or tin shades for keeping such recovered vehicles. Even the police stations having big campus, are short of space even for keeping/taking the vehicles of police officers/ officials, and usual visitors, because of which the vehicles recovered from time to time remain standing unattended in open space under the sky in abandoned conditions, getting dust, sun and rains. In certain police stations, for want of space, the vehicles are even used to be parked by the roadside near the police station in abandoned conditions, causing obstruction in traffic and inconvenience to passersby. In certain police stations, for want of space, the vehicles are even used to be parked by the roadside near the police station in abandoned conditions, causing obstruction in traffic and inconvenience to passersby. It is also noteworthy that the vehicles (including stolen vehicles) so recovered and kept unattended in open space at various police stations for long time, not only get junked and damaged by dust, sun and rains but are also subjected to further theft of their parts. The police stations, do not have means to keep round the clock (24 x 7) vigil over such vehicles, for their safety and the body parts of such vehicles get missing/stolen by some miscreants, may be in connivance with certain police officials or otherwise. On account of vehicles being kept in open, their bodies get junked and damaged, tyre-tubes, seat covers etc., get torn or damaged beyond repair, batteries get discharged beyond charging for want of supply of water to its cells for long times, light bulbs, side view mirrors and other accessories etc. either get damaged or stolen and the vehicles loose their identity and value. It is pertinent to mention that in case a vehicle is required by the court after few months, what to say of years, even the police officers/officials concerned may find it difficult in certain cases, to produce the same before the court, in same condition in which it was recovered or even in identifiable conditions. In case of requirement of production of vehicles like car/ bus or truck, the possibility of production of only a junked hollow body structure on bricks with everything including engine, tyre tube etc. missing, may not be ruled out. Due to keeping the vehicles unattended at police stations for years together causes personal loss to the owner of vehicle on one hand towards damage to vehicles and decreasing their value and National loss on the other hand in view of loss of collective value of all such vehicles parked at every police station. Perhaps no datas in this respect are available, but if datas are collected, the expected approximate loss of several thousands rupees per annum will be assessed in respect of damage to vehicles parked in each medium size police station of a district, with national loss to the tune of several crores per annum towards damage to vehicles stationed at all police stations throughout the country. It is pertinent to mention that if the vehicles are released expeditiously and judicially in custody of its real owner or appropriate person as the court thinks fit:- (i) the owners of vehicles would not be deprived of their use. (ii) the chances of theft of body parts of the vehicle, standing in open space at police station, will be ruled out/reduced. (iii) the vehicles or their body parts viz. tyre-tubes, batteries, seat covers, light bulbs, mirrors and other accessories etc. will not get faded, junked or damaged beyond repair due to sun, dust and rains, under open sky, diminishing their value and utility. (iv) the traffic (in case of parking of recovered vehicles on roadside) will not be obstructed and public at large will not face unwanted inconvenience. (v) the space so vacated by such vehicles at various police stations will be available and may be better utilized for parking the vehicles of police officers/officials as well as usual visitors and may be better maintained with regard to cleanliness, beautification and environment. (vi) the officials/ officers of police department shall not be answerable for the missing parts of the vehicles or for not producing the vehicle upon direction of courts. (vii) the State shall not be burdened with expenses to be incurred on security and preservation as well as production of vehicles before the court, and in any case such expenses will decrease to a considerable extent. (viii) personal loss of owner as well as National loss may be avoided/ reduced to a great extent. In view of the provisions of Section 451 of Cr.P.C., except for the special reasons to be recorded for not doing so, till disposal of trial, the court must exercise its discretion expeditiously and judicially in releasing the custody of vehicle in favour of its registered owner after verifying the papers of ownership, insurance, tax and fitness etc., and may impose additional necessary conditions amongst following:- (A) Panchnama of vehicle with complete details viz. Registration Number, Engine Number, Chasis Number, Make of the Year, Colour and Condition of Body etc., duly signed by the officials concerned, claimant, first informant or accused as the case may be, will be prepared; (B) Several photographs (coloured) from different angles, showing full picture and identity of the vehicle be taken, duly attested copies whereof be kept on record of the court file (which may be utilized as evidence), records of police station concerned, with one copy to the person to whom custody is handed over; (C) Furnishing of undertaking on affidavit, by the person concerned that neither he will change the colour, condition, nature and identity of vehicle nor will transfer the vehicle without prior permission of court nor will use the vehicle in connection with commission of any crime and that he will produce the vehicle before the court or authority concerned (in confiscation proceeding) as and when required; (D) Prior verification of all relevant papers of vehicle viz. Registration Certificate, and papers viz. policies of insurance, certificate payment of road tax, certificate of fitness etc., will be made; (E) Personal Bond and Surety Bonds in proportion to the value of vehicle, to the satisfaction of the court, will be furnished by the person, who seeks custody of vehicle; (F) Copy of order is sent to Road Transport Authority concerned; and (G) Any other condition deemed necessary by the court. Upon hearing the learned counsel for the parties and perusal of records, I find that in the impugned order, the trial court has not given any cogent reason for rejecting the application for release of the vehicle except rejecting the same in view of principles of law laid down by the Apex Court in the case of Union of India Vs. Dinesh Kumar Verma (supra). It is also pertinent to mention that in the case of Union of India Vs. Dinesh Kumar Verma (supra) the Apex Court has not laid down any principles of law. In above matter of release of vehicles, the Apex Court has set aside the order of release passed by the High Court in view of peculiar facts of that case. The learned trial court has failed to follow the law laid down by the Apex Court in the case of Sundarbhai Ambalal Desai (supra). In above matter of release of vehicles, the Apex Court has set aside the order of release passed by the High Court in view of peculiar facts of that case. The learned trial court has failed to follow the law laid down by the Apex Court in the case of Sundarbhai Ambalal Desai (supra). It is noteworthy that the refusal to release the vehicle may not be justified merely because some contraband is alleged to have been recovered from the vehicle or the vehicle could have been subjected to confiscation, particularly when no proceedings of confiscation were initiated or were pending and the disputed fact of carrying of prohibited contrabands by vehicle in question is yet to be decided upon evidence. It may not be disputed that the use of vehicle in commission of an offence, does neither make vehicle an offender or accused nor the vehicle can be punished for its such use in commission of offence. The use of vehicle may be made by a person for commissioning the offence and such person or persons, if found guilty has/have to be convicted and punished for the offence, not the vehicle itself. It is not disputed that the revisionist is the only claimant of vehicle in question and the learned lower court has not assigned any good reason for refusing the release of vehicle in his favour. In view of discussions made above, the impugned order is wrong and incorrect and is liable to be set aside. The revision is liable to be allowed. The revision is allowed accordingly. The impugned order rejecting the application for release of vehicle in question is set aside and application for release stands allowed. The vehicle in question will be released in custody of the revisionist by the court below upon furnishing of a personal bond and one surety to the satisfaction of court concerned and subject to the conditions imposed by the court as per observations made in the body of order. Let a copy of the order be circulated forthwith, through Registrar General of this Court, to all the judicial officers in the State of U.P. for ascertaining expeditious disposal of all pending applications for release of vehicles moved under Section 451 Cr.P.C., in accordance with the law as well as observations made in the body of the order, without unnecessary delay.