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2021 DIGILAW 274 (PAT)

Binod Pandey v. State Of Bihar

2021-03-23

MOHIT KUMAR SHAH

body2021
JUDGMENT/ORDER : Mohit Kumar Shah, J. The present petition has been filed for setting aside the order dated 16.01.2019 passed by the learned 6th Additional District and Sessions Judge cum Special Judge, (Excise) Nalanda at Biharsharif in connection with Rajgir P.S. Case No. 360 of 2018, registered for the offence punishable under Sections 30(a)/ 37 (b)/ 37(c) of Bihar Excise and Prohibition Act, 2016, whereby and where-under the learned court below has rejected the petition of the petitioner dated 15.01.2019, filed for release of the motorcycle in question. 2. The case of the prosecution in brief is that while the informant along with other police personnel were on patrolling duty on 06.12.2018 at about 3.00 P.M., the informant got information that some persons were sitting at village- Virchait and Visthapit and were consuming liquor, whereafter the informant is stated to have gone at the place of occurrence along with the police force and had caught three persons from the place of occurrence and three big green colour plastic bottles containing about 7 1/2 liters country made liquor were recovered. Thereafter, the aforesaid F.I.R. bearing Rajgir P.S. Case No. 360 of 2018 was registered and the motorcycle in question is also stated to have been seized by the police along with other motorcycles, from the place of occurrence. 3. It appears that the petitioner then filed a petition for release of his motorcycle bearing Registration No. BR-21R- 2619, before the concerned court on 15.01.2019, but the same has stood dismissed by the impugned order dated 16.01.2019 passed by the learned 6th Additional District and Sessions Judge cum Special Judge (Excise), Nalanda at Biharsarif. 4. The learned counsel for the petitioner submits that the petitioner is the owner of the seized motorcycle and is having its ownership documents as well as registration certificate and, in fact, it is the case of the petitioner that no illicit liquor was recovered from the motorcycle in question. 5. The learned counsel for the respondent, Shri Ashok Kumar, has submitted that despite repeated letters written to the respondents including the District Magistrate, Nalanda, Biharsharif, no response is forth-coming, hence, the present case be decided on the basis of the materials available on record as also the records which have been transmitted to this court by the learned court below and are kept with the file of the present case. 6. 6. I have heard the learned counsel for the parties and perused the materials on record. 7. It is a well settled law that the question of release of the vehicle should be decided by the Court judiciously and expeditiously. Sections 451 and 457 of the Code of Criminal Procedure deals with the power of the Court to order for the custody/disposal of the property pending trial in certain cases and the procedure to be followed by the police upon the seizure of the property, which reads as follows:- "Section 451 Cr. P.C.- 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". "Section 457 Cr. P.C.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation". Thus this Court finds that Section 451 Cr. Thus this Court finds that Section 451 Cr. P.C. empowers the court to pass appropriate orders with regard to seized property in the following manner:- (i) for proper custody pending conclusion of the enquiry and trial; (ii) to order it to be sold or otherwise disposed off after recording such evidence as it thinks necessary; (iii) if the property is subject to speedy natural decay, to dispose off the same. The Law with regard to seizure of property by the police vis-a-vis the provisions contained in the Code of Criminal Procedure, has been laid down by the Hon'ble Apex Court in a case reported in (Basavva Kom Dyamangouda Patil vs. State of Mysore, 1977 (4) SCC 358 ), wherein it has been observed in paragraph no.4 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. 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. 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." In fact the Hon'ble Apex Court has considered the issue with regard to exercise of power under Section 451 Cr. P.C. for release of the seized articles in a case reported in (Sunderbhai Ambalal Desai v. State of Gujarat, 2002 (10) SCC 283), paragraph No. 7 whereof is reproduced herein below:- "7. In our view, the powers under Section 451 CrPC 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 the 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." It would be apt to refer to a Judgment rendered by the Hon'ble Apex Court, reported in (General Insurance Council v. State of A. P., 2010 (6) SCC 768 ), paragraphs No. 7, 11, 14 and 15 whereof are reproduced herein below:- "7. While dealing with the seized vehicles from time to time by the police either in commission of various offences or abandoned vehicles or vehicles which are recovered during investigation of complaint of thefts, the Court observed as under: (Sunderbhai Ambalal Desai case, 2002 (10) SCC 283 : 2003 SCC (Cri) 1943], SCC pp. 289-90, paras 17-18) "17. While dealing with the seized vehicles from time to time by the police either in commission of various offences or abandoned vehicles or vehicles which are recovered during investigation of complaint of thefts, the Court observed as under: (Sunderbhai Ambalal Desai case, 2002 (10) SCC 283 : 2003 SCC (Cri) 1943], SCC pp. 289-90, paras 17-18) "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. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the 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 the 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 months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared." 11. Notice of the said petition was issued to all the States and Union Territories. Almost all the States have contended that they have already issued necessary guidelines and directions for full and complete compliance with the provisions contained in Sections 451 and 457 of the Code as elaborated in Sunderbhai Ambalal Desai, 2002 (109) SCC 283 : [2003 SCC (Cri) 1943] as also under Section 158(6) of the MV Act and Rule 159 of the Rules as directed in General Insurance Council case, 2007 (12) SCC 354 : [(2008) 1 SCC (Cri) 384]. Thus, in one voice, they have contended that there would not be any difficulty in compliance with the directions that may be issued in furtherance of achieving the object as directed by this Court. Thus, in one voice, they have contended that there would not be any difficulty in compliance with the directions that may be issued in furtherance of achieving the object as directed by this Court. Thus, in our view, there appears to be consensus in this matter. 14. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only do they occupy substantial space in the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its roadworthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/Union Territories/Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police station, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the division/Commissioner of Police concerned of the cities/Superintendent of Police concerned of the district concerned. 15. In case any non-compliance is reported either by the petitioners or by any of the aggrieved party, then needless to say, we would be constrained to take a serious view of the matter against an erring officer who would be dealt with iron hands. With the aforesaid directions, this writ petition stands finally disposed of." 8. This Court further finds that a learned Division Bench of this Court by a judgment dated 2.8.2018 passed in LPA No. 981 of 2018 (Chandan Kumar vs. The State of Bihar & Ors.) as also in yet another judgment dated 16.9.2016 passed in CWJC No. 18311 of 2015 (Sitalal Singh vs. The State of Bihar and analogous cases) has, under similar circumstances, directed the authorized officers to release the respective vehicles in favour of the petitioner, subject to the conditions mentioned therein. 9. 9. In fact, a learned Division Bench of this Court by a judgment dated 14.01.2020, passed in CWJC No. 17165 of 2019 (Umesh Sah vs. The State of Bihar & Ors.) has held that the expression " without any reasonable delay" occurring in Section 58 of the Bihar Excise and Prohibition Act, 2016, necessarily has to be within a reasonable time and with dispatch, which period has been held to be a period of three months' time as also it has been held that the said period of three months is sufficient for any authority to adjudicate any confiscation proceeding. 10. It may also be relevant to note that this Court has been informed that till date no confiscation proceedings have been initiated although the motorcycle is stated to have been seized on 06.12.2018, which is also contrary to the law laid down by the learned Division Bench of this Court in the case of Umesh Sah (supra) inasmuch as more than two years have lapsed since the motorcycle in question was seized. 11. Now, coming back to the case in hand, this Court finds, considering the discussion made herein above in the preceding paragraphs, that the learned court of 6th Additional District & Sessions Judge cum Special Judge, Nalanda, Biharsharif, has not considered the issue of release of the motorcycle in question in its right perspective and moreover since the respondent- State has failed to initiate and complete the confiscation proceedings within the time period prescribed by the learned Division Bench of this Court in the case of Umesh Sah (supra), it was well within the domain of the learned court below to exercise powers conferred upon it under Section 451/ 457 of the Code of Criminal Procedure, 1973, thus the impugned order dated 16.01.2019, passed by the learned court of 6th Additional District and Sessions Judge cum Special Judge (Excise), Nalanda at Biharsharif is perverse and contrary to law, hence is set aside. 12. 12. Consequently, it would be in the interest of justice to direct the District Magistrate, Biharsharif at Nalanda to release the motorcycle in question, i.e. the one bearing Registration No. BR-21R-2619, in favour of the petitioner, in connection with Rajgir P.S. Case No. 360 of 2018, inasmuch as the motorcycle in question is lying in the open sky unattended and has been left to face the vagaries of weather and moreover, the same cannot be left to rot and become junked, within a period of four weeks from today, subject to fulfillment of the following conditions:- "(a) The petitioner shall produce original papers supporting the ownership of the vehicle in question including the registration papers, the insurance paper, the tax token and the pollution certificate. (b) The petitioner shall file an undertaking in the form of an affidavit that he shall not alienate the vehicle or transfer the vehicle in favour of any third party during the pendency of the confiscation proceedings and shall produce the vehicle as and when required in the confiscation proceedings. (c) The petitioner shall furnish surety to the extent of the value of the vehicle as indicated in the insurance document. (d) The release of the vehicle shall be governed by the final outcome of the confiscation proceedings." 13. The petition stands allowed to the aforesaid extent.