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2022 DIGILAW 2393 (RAJ)

Gaurav Dureja v. State Of Rajasthan

2022-09-08

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "The Code") the petitioner has challenged order dated 19.04.2022, passed by learned Additional Sessions Judge, Gharsana, District Sri Ganganagar, whereby, petitioner's application under Section 457 of the Code for release of his motorcycle (Hero HF Deluxe, Registration No. RJ 13 SR 2902) has been rejected. 2. It is contended by the petitioner that after investigation, the Investigating Officer has filed the charge-sheet, however, the petitioner has not been named as accused in this case. 3. Learned counsel submits that the vehicle in question was stolen from him on 07.09.2021 for which he got a theft report registered as daily diary report No. 633/17.09.2021 in Police Station Sri Vijanagar and the contraband substance was recovered from such vehicle on 13.11.2021. 4. Heard and perused the record. 5. A perusal of the impugned order dated 19.04.2022, reveals that the Court below has rejected petitioner's application for releasing the vehicle essentially in the face of provisions contained in Section 60 of the NDPS Act. 6. Before delving into the accuracy of the said order it would be appropriate to briefly advert to the relevant statutory provisions involved in the present case, namely, sections 60 (3) and 63 (1) of the NDPS Act and section 452 (1) of the Code. Section 60 (3) of the NDPS reads as under: "60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation.- (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance [or controlled substances], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use." Section 63 (1) of the NDPS Act reads as under: "63. Procedure in making confiscations.- (1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly." Section 452 (1) of the Code reads as under: "452. Order for disposal of property at conclusion of trial.-(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence." 7. A conjoined reading of the above-quoted provisions of NDPS Act and the Code reveals the following: (i) Any vehicle used to carry any narcotic drug/psychotropic substance/controlled substances/any article liable to confiscation under section 60(1) and 60(2), shall be liable to confiscation; (ii) Upon conclusion of the trial of the accused, the Court must decide if such vehicle is liable to confiscation; (iii) If such vehicle is liable to confiscation the Court shall pass an order for confiscation; (iv) The Court may not pass an order for confiscation if the owner of the vehicle can prove that the vehicle was used without the knowledge or connivance of the owner himself and that he had taken all reasonable precautions against such use. 8. In the facts of the present case, this Court feels that an indefinite seizure of the vehicle will not serve any purpose. Per contra allowing an indefinite seizure of the vehicle would firstly create additional burden on the State for its management and secondly, may cause depletion of the vehicle to such an extent that regardless of the ultimate verdict on its confiscation, the vehicle would deplete to such an extent that it would be rendered defunct by the end of the trial, which may take years. 9. That apart, small quantity of 7.48 gms. Chitta (smack) was recovered from the vehicle, which had been stolen from the petitioner (owner) and the petitioner has not been arrayed as an accused. 10. 9. That apart, small quantity of 7.48 gms. Chitta (smack) was recovered from the vehicle, which had been stolen from the petitioner (owner) and the petitioner has not been arrayed as an accused. 10. In view of the aforesaid, the petition is allowed. 11. The impugned order dated 19.04.2022, is hereby quashed and set aside. 12. The trial Court is, therefore, directed to release the vehicle in question (No. RJ 13 SR 2902) on supurdagi in accordance with law obviously, on being satisfied that the petitioner is owner of the vehicle in question. 13. The vehicle shall be released on petitioner furnishing an undertaking before the Court to the effect that as and when the vehicle is required during trial, he shall produce the same before the trial Court. The petitioner shall also furnish two solvent sureties to the tune of Rs. 30,000/-. 14. The stay petition stands disposed of accordingly.