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2023 DIGILAW 1048 (ALL)

Ajeem Husain v. State of U. P.

2023-04-18

UMESH CHANDRA SHARMA

body2023
JUDGMENT : 1. Heard Sri Manoj Kumar Gupta, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material available on record. 2. This application under Section 482 Cr.P.C. has been moved on behalf of the applicant to quash the order dated 08.09.2022 passed by Special Judge (N.D.P.S Act) / A.S.J. F.T.C. (Crime Against Women) in Case Crime No. 163 of 2022 – State Vs. Zubair and Others, under Section 8-C/20-b (ii) (e) and 8-A/28 of N.D.P.S. Act, Police Station Ujhani, District Budaun, by which the release application of Truck No. U.P.22-T-3585 has been rejected and also for prayer to direct the Trial Court to release the aforesaid truck. 3. In brief, facts of the case are that the applicant is the recorded owner of the impugned vehicle insured by the O.I.C., which was searched and captured by the Police on 26.03.2022 and three quintal 96 K.G. Ganja was recovered in 198 packets and hence the vehicle was ceased under Section 207 M.V. Act and was also taken to the Police Station. The applicant moved an application for release of the impugned vehicle, which was rejected by the learned Trial Judge, on the ground that a report has been forwarded by the concerned Police Station for confiscation of the impugned vehicle in favour of the State. 4. Being aggrieved, this application under Section 482 Cr.P.C has been filed by the applicant. 5. On behalf of the State, S.I. Harpal Singh has filed counter affidavit that the aforesaid Truck was used in illegal trafficking of contraband narcotic substances and for confiscation of the same, a report dated 20.04.2022 has been sent to the District Magistrate, Budaun. The learned Trial Court has rightly rejected the release application. The application is not maintainable, hence the same be rejected. 6. A rejoinder affidavit has been filed by the applicant, denying the contends of the counter affidavit with contention that applicant is the owner of the vehicle and if any contraband is received/recovered from the vehicle, the truck driver will be responsible as it is not possible for the applicant to monitor the transportation of his vehicle all the time. 7. The condition of the vehicle is deteriorating day-by-day. The applicant is ready to give undertaking that he will produce the vehicle as and when it would be required or ordered by the court. 7. The condition of the vehicle is deteriorating day-by-day. The applicant is ready to give undertaking that he will produce the vehicle as and when it would be required or ordered by the court. Though, a report has been sent for confiscation of the vehicle on 22.04.2022, but till date no notice with regard to the proceeding of confiscation of the vehicle has been received. Even an application under the Right to Information Act was moved by the applicant on 14.10.2022, but there is no reply to that as to whether any proceeding was initiated in pursuant to the report dated 20.4.2022 or not. The applicant was neither present when the vehicle was taken into possession by the police nor he was accused as per F.I.R and it is the driver, who is responsible and who has been released on bail. The applicant is not a person of criminal in nature, he is a businessman and does business very fairly. It is the first time when his vehicle has been ceased by the Police with contraband substances. Hence the application be allowed and the impugned truck be released in favour of the applicant during the pendency of the trial. 8. Learned counsel of either of the parties has relied on Manak Lal Vs. Central Bureau of Narcotics, 2019 JCC Online M.P. 2031, without showing name of the party which has no relevancy in the matter. 9. It would be proper to reproduce Section 60 of the N.D.P.S Act, which is as under : - “60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation. (1). Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2). Liability of illicit drugs, substances, plants, articles and conveyances to confiscation. (1). Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2). Any narcotic drug or psychotropic substance 2[or controlled substances] lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance 2[or controlled substances] which is liable to confiscation under sub-section (1) and there receptacles, packages and coverings in which any narcotic drug or psychotropic substance 2[or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation. (3). Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 2[or controlled substance], 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.” 10. According to the Sub-Section (1), if any offence has been committed under the N.D.P.S Act, the Plants Articles and Conveyances shall be liable for confiscation. As per Sub Section (3), any animal or conveyance used in carrying any narcotic and drug or psychotropic substance or controlled substance or any article liable to be confiscated 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 of the owner himself, his agent, if any, and the person in-charge of animal or conveyance and the each of them had taken all reasonable precaution against such use. 11. In this case, it is the case of the applicant that he was a businessman and he cannot supervise all time his vehicle. No F.I.R. has been lodged against him. He was not present on the spot or with the vehicle. 11. In this case, it is the case of the applicant that he was a businessman and he cannot supervise all time his vehicle. No F.I.R. has been lodged against him. He was not present on the spot or with the vehicle. It was not in his knowledge that the driver is carrying the contraband narcotics substances. Therefore, an opportunity is available to the applicant to prove that this case is covered under the later part of Sub Section (3). 12. So far as the confiscation proceeding is concerned, it is very much clear from the evidence on record that though a report for confiscation had been forwarded by the S.H.O. to D.M. Budaun, on 20.04.2022, but till date the District Magistrate, Budaun has not started the proceedings of confiscation with regard to the impugned vehicle. If the vehicle has not been confiscated and no proceeding of confiscation could be started, even after a laps of one year, it is open to the concerned Court to exercise its jurisdiction under Chapter XXXIV of the Code of Criminal Procedure. 13. This Court is of the considered view that in such a situation the concerned court has right to dispose of the aforesaid release application considering all the facts and circumstances of the case and also as to whether the applicant has been able to establish the circumstances and grounds enumerated in the later part of the Sub Section (3) of Section 60 of the N.D.P.S Act or not. 14. There is also a reference of Section 207 of the M.V. Act that the vehicle has been ceased under Section 207 of the M.V. Act, for which the reports may be obtained and a release application may be moved before the concerned court or before the concerned R.T.O and the fine amount imposed (if any) under Section 207 of the M.V. Act, may be deposited. So far as the release of this vehicle as case property of the related criminal case is concerned, in absence of initiation of any confiscation proceeding or order, the release application can be dealt with under Chapter XXXIV of the Code of Criminal Procedure. 15. On the basis of the above discussion, this court is of the considered view that the impugned order is liable to be quashed. ORDER 16. This application under Section 482 Cr.P.C is allowed and the impugned order dated 08.08.2022 is hereby quashed. 15. On the basis of the above discussion, this court is of the considered view that the impugned order is liable to be quashed. ORDER 16. This application under Section 482 Cr.P.C is allowed and the impugned order dated 08.08.2022 is hereby quashed. The learned Special Judge / A.S.J. (F.T.C) / Special Judge (N.D.P.S Act) (Crime against women), Budaun, is directed to decide the release application moved by the applicant earlier, afresh. 17. In view of this judgment, the learned trial Court shall receive a recent report as to whether any confiscation proceeding has been started by the District Magistrate, Budaun, or not or any order in this regard has been passed or not. In case, a report is submitted to the learned trial court that a confiscation proceeding has been started or any order with regard to confiscation has been passed by the District Magistrate, Budaun, this order for deciding the release application afresh would not be effective, otherwise the learned trial Court shall decide the release application exercising its power under Chapter XXXIV of the Code of Criminal Procedure.