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Madras High CourtCRL RC/541/2023allowed

Divya v. The State Rep By

2023-04-03Honourable Mr Justice V.Sivagnanam9 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 03.04.2023

CORAM

THE HONOURABLE Mr. JUSTICE V. SIVAGNANAM Divya ... Petitioner Vs.

The State represented by The Inspector of Police, T-16, Semmanchery Police Station, Chennai District.

(Crime No.325 of 2022) ... Respondent Criminal Revision filed under Section 397 and 401 of Cr.P.C., to set aside the order passed in Crl.M.P.No.1031 of 2023 dated 27.02.2023 on the file of the learned Principal Special Court under EC and NDPS Act Cases, Chennai and further direct to return and deliver of petitioner Auto bearing TN-14 R-2994 Piaggion Ape City LPG Auto Rickshaw (Yellow colour) to the petitioner.

For Petitioner : Mr.P.Muthamizhselvakumar For Respondent : Mr.R.Vinothraja, GA, (crl.side)

O R D E R

This Criminal Revision Petition has been filed to set aside the order passed by the Principal Special Court under EC and NDPS Act, Chennai in Crl.M.P.No.1031 of 2023 dated 27.02.2023 and to return the Auto 1/9

bearing Registration No.TN-14 R-2994 (Piaggion Ape City LPG Auto Rickshaw) to the petitioner /owner of vehicle. 2.It is the case of the prosecution that on 26.11.2022 at about 06.40am, the respondent Police, based on the secret information about illegal sale of Ganja in Semmanchery Nookampalayam Link Road, near Tsunami Nagar Arch, rushed to the spot and caught the accused with the auto rickshaw bearing Registration No. TN-14 R-2994 and seized 1.500kgs of Ganja and 300 Nos of Tydol Tablets. The respondent-Police arrested the accused and registered the case against them in Crime No.325/2022 under Sections 8(c) r/w 20(b)(ii)(B), 22(b), 25, 29(1) of NDPS Act.

3.The petitioner is the owner of the above said auto rickshaw and she filed a petition in Crl.M.P.No.1031 of 2023 before the Trial Court to release the vehicle to her. But it was dismissed, vide order dated 27.02.2023 on the ground that the vehicle was seized from A1, who is the petitioner's husband, from the scene of occurrence and at the same time, 2/9

both are residing in the same residence. Hence, challenging the above said order, the petitioner filed the present Revision case. 4.The learned counsel appearing for the petitioner contended that the petitioner is the wife of A1 and she is not an accused in this case. The petitioner is the owner of the auto rickshaw bearing Registration No. TN14 R-2994. The respondent Police arrested A1 along with other accused for having illegal possession of 1.500kgs of Ganja and 300 Nos of Tydol Tablets and also seized the vehicle. They were arrested on 26.11.2022 for the alleged offences punishable under Sections 8(c) r/w 20(b)(ii)(B), 22(b), 25, 29(1) of NDPS Act. in Crime No.325 of 2022. He further submitted that if the vehicle is kept for a long time in the open space, it would cause damage to the vehicle.

He further submitted that the vehicle is not involved in any case similar in nature and the petitioner is ready to give appropriate guarantee as well as security for return of vehicle and also she will produce the vehicle, as and when required either before the respondent police or before the Trial Court. Hence, he prayed to return the vehicle to the petitioner.

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5.The learned Government Advocate (Crl.Side) submitted that the petitioner is the wife of A1. He further submitted that the vehicle in question is not involved in any case similar in nature. However, he objected to return the vehicle to her.

6.Heard the learned counsel appearing for the petitioner and the learned Government Advocate (Crl.Side) appearing for the respondent and I have perused the materials on record.

7.A perusal of the records shows that the respondent police registered a case against the accused in Crime No.325 of 2022 for the offence under Sections 8(c) r/w 20(b)(ii)(B), 22(b), 25, 29(1) of NDPS Act, with regard to illegal possession of 1.500kgs of Ganja and 300 Nos of Tydol Tablets. Further, it reveals from the records that the petitioner is the owner of the Auto Rickshaw bearing Registration No.TN-14 R-2994 and it was seized by the respondent police. The Trial Court dismissed the petition in Crl.M.P.No.1031 of 2023 filed by the petitioner on the ground that the vehicle was seized from A1 and A2 by the respondent Police from the scene of occurrence and further, A1 is the husband of this petitioner 4/9

and if the vehicle is returned to the petitioner, it may be used in similar nature of offence. The petitioner is ready to give guarantee and security for returning the vehicle and if the vehicle is being kept idle in open space, it would cause damage to the vehicle.

8.At this juncture, it is relevant to rely upon a decision of the Hon'ble Supreme Court in Sunderbhai Ambalal Desai and others Vs. State of Gujarat in Special Lave Petition (Crl.)2745 of 2022 dated 01.10.2002 and the relevant portion is extracted hereunder. Vehicles

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 third 5/9

person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company, then insuance company be informed by the Court to take possession of the vehicle, which is not claimed by the owner or a third person. If 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 panchanama should be prepared.

Therefore, as per the ratio laid down by the Hon'ble Apex Court, this Court is of the view that, keeping the vehicle idle in the open space, will diminish its nature and lose its value and no purpose will be served. As such, considering the nature of offence and also taking into account the fact that the vehicle is not involved in any other case similar in nature previously, this Court is inclined to allow the Criminal Revision Case.

9. In the result, this Criminal Revision Case is allowed and the impugned order passed by the Trial Court is set aside. The interim custody 6/9

of the vehicle is ordered to be handed over to the petitioner on the following conditions.

i. the petitioner shall prove her ownership of the Auto Rickshaw bearing Registration No.TN-14 R-2994 by producing the R.C.Book and other relevant records;

ii.the petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) before the learned Principal Special Court under EC and NDPS Act Cases, Chennai.

iii.The Court may prepare a panchnama in Judicial Form No.82 with regard to the vehicle and such panchanama can be used in evidence.

iv.the petitioner may take photograph of the vehicle and certified under Section 65B of the Central At 1 of 1972 and such photographs may be used as secondary evidence. v. the petitioner shall not alienate or encumber the vehicle in any manner;

vi.the petitioner shall give an undertaking that she will not use the vehicle for any illegal activities in future, vii.the petitioner shall also produce the vehicle as and when required before the court below and before the respondent police. 03.04.2023 Index:Yes/No Internet:Yes/No srn 7/9

To 1.The Principal Special Court under EC & NDPS Act, Chennai 2.The Inspector of Police, T-16, Semmanchery Police Station, Chennai District. 3.The Public Prosecutor, High Court, Madras.

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V. SIVAGNANAM, J.

srn 03.04.2023 9/9