Anil Yadav v. The State Of West Bengal
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction) CIRCUIT BENCH AT JALPAIGURI APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul) CRR 272 of 2023 Anil Yadav vs.
The State of West Bengal For the Petitioner : Mr. Hillol Saha Poddar.
For the State : Mr. Aditi Shankar Chakraborty, Mr. Sourav Ganguly.
Hearing concluded on : 12.10.2023 Judgment on : 18.10.2023 Shampa Dutt (Paul), J.:
1.
The present revision has been preferred against an order dated 20.12.2022 passed by the Learned Special Judge, Special Court (under the NDPS Act, 1985)-cum-Additional Sessions Judge, 1st Court, Coochbehar in connection with NDPS Case No. 52 of 2022, arising out of Kotwali P.S. Case No. 547 of 2022 dated 25.05.2022 under Sections 21(C)/23(C)/27A/29 of the NDPS Act, 1985.
2.
The petitioner's case is that he is the owner of the vehicle which was allegedly used by his driver. The petitioner is an accused in the present case.
3.
Vide a judgment and order dated 20.12.2022, the petitioner/accused has been acquitted of all charges in NDPS case No. 52 of 2022 by the Learned Additional Sessions Judge, 1st Court, Coochbehar and the vehicle being UP 63T-3508 has been confiscated to the State as per the provision of Section 63 of the act on the ground that the vehicle was so used to transfer the contraband with/without the knowledge and in connivance of the owner himself and it is evident that none has claimed the vehicle during trial. The existence of the vehicle cannot be denied.
4.
A status report dated 11.10.2023 has been filed by an officer of the Kotwali P.S., Coochbehar. Let it be made part of the record. 5.
Section 451 of the Code of Criminal Procedure, lays down:- "451. Order for custody and disposal of property pending trial in certain cases.- When any property is produced before any Criminal Court during any 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.
Explanation.- For the purposes of this section," property" includes- (a) property of any kind or document which is produced before the Court or which is in its custody, (b) any property regarding which an offence appears to have been committed or which
appears to have been used for the commission of any offence."
6.
Section 452 of the Code of Criminal Procedure, lays down:- "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.
(2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under subsection (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
(5) In this section, the term" property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by
such conversion or exchange, whether immediately or otherwise."
7.
The Supreme Court in Sunderbhai Ambalal Desai vs State of Gujarat, (2003 SCC (Cri) 1943), on October 1, 2002, held:- "8. The question of proper custody of the seized article is raised in a number of matters. In Basavva Kom Dyamangouda Patil v. State of Mysore [(1977) 4 SCC 358 : 1977 SCC (Cri) 598] this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under: (SCC p. 361, para 4) "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.
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."
(emphasis supplied)
9. The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
15. Learned Senior Counsel Mr Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, a number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to their owners or to the person from whom the said vehicles are seized by taking appropriate bond and guarantee for the return of the said vehicles if required by the court at any point of time.
16. However, the learned counsel appearing for the petitioners submitted that this question of handing over the vehicle to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the persons concerned.
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."
8. Thus in view of the guidelines of the Supreme Court, the findings of the Magistrate in respect of return of the seized vehicle is not in accordance with law and thus an abuse of the process of law/court.
9. Accordingly the order dated 20.12.2022 passed by the Learned Special Judge, Special Court (under the NDPS Act, 1985)-cum-Additional Sessions Judge, 1st Court, Coochbehar in connection with NDPS Case No. 52 of 2022, arising out of Kotwali P.S. Case No. 547 of 2022 dated 25.05.2022 under Sections 21(C)/23(C)/27A/29 of the NDPS Act, 1985 is modified to the said extent, only in respect of the return of the seized vehicle.
10. The learned Trial Court will return the vehicle as per the provision of Section 452 of Cr.P.C. by passing appropriate orders keeping with the guidelines of the Supreme Court in Sunderbhai Ambalal Desai vs State of Gujarat (Supra) within one month from the date of this order.
11. CRR 272 of 2023 is disposed of.
12. There will be no order as to costs.
13. All connected Applications, if any, stand disposed of.
14. Interim order, if any, stands vacated.
15. Copy of this judgment be sent to the learned Trial Court for necessary compliance.
16. Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all, necessary legal formalities. (Shampa Dutt (Paul), J.)