Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 215 (ALL)

SHANAT KUMAR MISHRA v. STATE OF Uttar Pradesh

2018-01-25

DINESH KUMAR SINGH I

body2018
JUDGMENT : Hon'ble Dinesh Kumar Singh-I,J. 1. Learned counsel for the revisionist, Sri Prashant Kumar Tripathi and Sri Umesh Chandra Tiwari are present. 2. From the side of State, learned A.G.A. has filed counter-affidavit and the same is taken on record. 3. This Criminal Revision has been preferred against the order dated 25.07.2016 passed by Additional District and Sessions Judge, Court No.3, Mirzapur passed in Criminal Misc. Application No. 01 of 2016 arising out of Case Crime No.379 of 2016 under Section 8/20 N.D.P.S. Act, P.S. Haliya, District Mirzapur whereby the application for releasing the vehicle has been rejected. 4. In the memo of revision, it is stated that the revisionist is not named in the F.I.R. dated 30.06.2016. He was not aware about the facts set up by the prosecution in F.I.R. On moving an application for releasing the vehicle by the revisionist, the police concerned submitted a false report that confiscation proceedings were pending before the District Magistrate, Mirzapur, although there were no such proceedings pending. Relying upon the said report, the court below has rejected the application for release of the vehicle vide impugned order dated 25.07.2016. The District Magistrate has no concern with the confiscation proceedings. There are several judgements of the Supreme Court wherein it has been settled that the case property involved in a criminal case should not be kept at police station for a long period and that the same should be released in favour of the owner after taking adequate surety in lieu of releasing the vehicle. The revisionist was ready to give an undertaking that he would not sell the vehicle nor would change its identity and was ready to give surety in lieu of its release but the court below did not consider these facts. Hence, the prayer is made that the impugned order be set aside and the direction be issued to S.H.O., P.S. Halia, District Mirzapur to release the vehicle "Eco Sport" bearing Registration No. Uttar Pradesh 63V/6262 in favour of the revisionist. 5. From the side of the State in Counter-Affidavit, it has been mentioned that on 29.6.2016 at about 23:10 hours, the said vehicle was taken into custody from accused Diwakar Singh and accused Navneet Mishra as both were carrying in the said vehicle, 18.5 Kg Ganja and 19.5 Kg Ganja each. 5. From the side of the State in Counter-Affidavit, it has been mentioned that on 29.6.2016 at about 23:10 hours, the said vehicle was taken into custody from accused Diwakar Singh and accused Navneet Mishra as both were carrying in the said vehicle, 18.5 Kg Ganja and 19.5 Kg Ganja each. Thus, the said vehicle was being used in smuggling of Ganja and hence the same was case property in that case regarding which proceedings were being undertaken for seizure of the said vehicle. If the said vehicle is released, the revisionist would not produce the same in court at the time of trial and the same may again be used in smuggling of Ganja. 6. Heard the arguments of learned counsel for the revisionist as well as learned A.G.A. and perused the record. 7. It would be pertinent here to identify the reason why the court below has rejected the said application refusing the release of the said vehicle. 8. In the impugned order, reference is made of the judgement passed by the Hon'ble Supreme Court in Union of India Vs. Dinesh Kumar Verma, (2005) 9 SCC 330 in a matter of release of the vehicle related to commission of offence under N.D.P.S. Act, 1985. The relevant paras of the aforesaid judgement are quoted as below: "3. By the impugned order, the High Court has directed for release of the vehicle during trial of the accused for violation of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). In our view, in the facts and circumstances of the present case, the High Court was not justified in releasing the vehicle. 4. Accordingly, the appeal is allowed, the impugned order rendered by the High Court is set aside and the prayer for release of vehicle made on behalf of the respondent is rejected. The respondent is directed to surrender the vehicle within a period of one month from today, failing which it would be open to the police to seize the same and report compliance to this Court within a period of six weeks from today." 9. On the basis of the aforesaid judgement, the learned lower court has refused to release the said vehicle in favour of its registered owner i.e. revisionist. 10. On the basis of the aforesaid judgement, the learned lower court has refused to release the said vehicle in favour of its registered owner i.e. revisionist. 10. The learned counsel for the revisionist has argued that in the case at hand the law laid down in Suder Bhai Ambarlal Desai Vs. State of Gujarat (2002) 10 SCC 283 shall be applicable wherein following guidelines have been laid down for release of the vehicles and other case properties because there is no specific provision given under N.D.P.S. Act for release of vehicles which were found to have been used in the commission of offence under the said Act. Para Nos. 7, 8, 9, 10 and 17 of the aforementioned judgement are quoted as follows: "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 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 properly 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 Basawa Kom Dyanmangouda Patil v. 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: (SCC p.361, para 4) "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. 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. 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. Valuable Articles and Currency Notes .......................... 17. 10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes .......................... 17. In our view, whatever be the situation, it is of no use to keep such-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. This can be done pending hearing of applications for return of such vehicles." Further learned counsel for the revisionist has relied upon the judgement dated 23.08.2016 passed in Criminal Revision No. 1926 of 2016 (Dhirendra Singh Thapa Vs. State of Uttar Pradesh and Another) wherein a coordinate bench of this Court has held as follows: "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). 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. 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." 11. In view of the above position of law as has already been held by a coordinate bench of this Court in Criminal Revision No. 1926 of 2016 (Dhirendra Singh Thapa Vs. State of Uttar Pradesh and Another) that Apex court has not laid down principals of law with regard to release of vehicles related to offence under N.D.P.S. Act, it cannot be held that guidelines laid down by the Supreme Court in Sundarbhai Ambalal Desai case (supra) should not be followed. 12. According to the above mentioned guidelines in the said case, it is a mandate issued by the Supreme Court that the police should not retain in its custody the seized property for long and that the same should be restored to the original owner after necessity to retain it ceases. As held in the above case, in case of release of vehicles, it is proper to release them on bond and guarantee as security for return of the said vehicles, if required at any point of time. 13. In the case at hand, it is apparent that the trial under the N.D.P.S. Act would take place during which there may be a possibility that the court might direct production of the said vehicle before it, if required, although the prosecution has failed to file its seizure memo which would certainly indicate that the said vehicle was seized by police in the said case. Even then, it would be appropriate to release the vehicle in favour of its registered owner on his furnishing a personal bond and surety to the satisfaction of the court concerned with a direction that as and when the same would be required by the court below, the same shall be produced before it. Till the period, the said case is concluded, the said vehicle shall not be transferred or sold to anyone and shall be retained by the owner. 14. Till the period, the said case is concluded, the said vehicle shall not be transferred or sold to anyone and shall be retained by the owner. 14. The impugned order deserves to be set aside and the vehicle shall be released in custody of the revisionist by the court below upon his furnishing a personal bond and one surety to the satisfaction of the court concerned subject to the condition that the said vehicle shall not be disposed of by any mode i.e. by transfer/sale till the conclusion of the case pending under the N.D.P.S. Act and that it shall be produced before court, if so directed.