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2022 DIGILAW 745 (RAJ)

Arif Khan v. State Of Rajasthan

2022-03-04

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 18.01.2022, passed by learned Additional District and Sessions Judge, Bhadra, Hanumangarh, whereby, petitioner's application under Section 451 of the Code for release of his motorcycle has been rejected. 2. Precisely narrated the facts appertain are that on 11.07.2021 at around 7:40 pm the Investigating Officer (hereinafter referred to as "I.O.") intercepted one Shabaz Khan and Sahil Khan, who were standing on roadside along with the concerned motorcycle (hereinafter referred to as "the vehicle") and upon search of the vehicle 13 grams of heroin was found under its seat. 3. The vehicle was seized by the Investigating Officer, whereafter, the petitioner who claims to be the registered owner of the vehicle (RJ 49 SD 7863), moved an application under Section 451 of the Code for release of the seized vehicle. 4. Mr. Bhadu, learned counsel for the petitioner submitted that the vehicle in question is not required in the trial and the conclusion of trial is likely to take considerable time. He submitted that in case the vehicle is not released, it would deplete and its condition would further deteriorate. 5. That apart, learned counsel also argued that on account of indefinite seizure of the motorcycle, petitioner's rights to move freely shall be affected. 6. Learned Public Prosecutor appearing on behalf of the respondent submitted that maybe, the vehicle in question might not be used in trial of the case, which is to be tried under the provisions of Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "NDPS Act"), but in case, the Court proposes to order release of the vehicle, then, the petitioner may be directed to furnish a bank guarantee equal to the value of the vehicle so that if the Court ultimately comes to a conclusion that confiscation of the vehicle is warranted, the same be ensured or else at least amount to the extent of its value is secured. 7. Heard and perused the record. 8. A perusal of the impugned order dated 18.01.2022, reveals that 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. 9. 7. Heard and perused the record. 8. A perusal of the impugned order dated 18.01.2022, reveals that 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. 9. 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 2[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." 10. 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. 11. In the facts of the present case, the I.O. has recorded the entire sequence of events leading to the seizure of the vehicle in the F.I.R. Though registered owner of the vehicle has been implicated but in the facts and circumstances of the case, this Court feels that an indefinite seizure of the vehicle will not serve any purpose. 12. 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. 13. In view of the aforesaid, the petition is allowed. 14. The impugned order dated 18.01.2022, is hereby quashed and set aside. 15. So far as request of Public Prosecutor to furnish a bank guarantee is concerned; having regard to the fact that only a small quantity of 13 grams of smack was found, that too not in petitioner's possession and that the petitioner is only the owner of vehicle, this Court feels that the condition of furnishing a bank guarantee to the tune of Rs. 50,000/- will be onerous, as the trial of the case may take considerable time and getting the bank guarantee issued for such an amount and its repeated renewal would unnecessarily cause financial burden and other inconvenience to the petitioner. 16. 50,000/- will be onerous, as the trial of the case may take considerable time and getting the bank guarantee issued for such an amount and its repeated renewal would unnecessarily cause financial burden and other inconvenience to the petitioner. 16. The trial Court is, therefore, directed to release the vehicle in question (RJ 49 SD 7863) in accordance with law obviously, on being satisfied that the petitioner is owner of the vehicle in question. 17. 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. 50,000/-. 18. The stay petition stands disposed of accordingly.