Sohag Roy v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL MISC. JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR] *** CRR NO. 8 OF 2021 Sohag Roy ... Petitioner Vs The State ... Respondent Mr. D. Ilango, Advocate ... for the Petitioner Mr. A. K.Mandal, Advocate ... for the State September 7, 2021 [SR] Item No.1 1.

In this revisional application the petitioner has assailed an order dated 15.04.2021 passed by the Additional Sessions Judge, North & Middle Andaman, Mayabunder in Special NDPS GR No.1 of 2021.

2.

The petitioner was arrayed as an accused and arrested in connection with FIR 5 of 2021 dated 23.01.2021 of PS Kadamtalla under section 20 (b) (ii) (B) of NDPS Act for having joint possession of Ganja weighing 1 KG. and 0.50 grams. The charge sheet under section 20 (b) (ii) B/29 of NDPS Act has been submitted on usual investigation. During investigation, the vehicle being Maruti EECO bearing Registration No. AN 01 Q 2041 was seized under seizure list. 3.

The petitioner being the registered owner sought for release of the vehicle on any condition even on condition to produce the vehicle if required by the trial court during trial. Based on the prayer so made before the learned Special Judge, a report from the investigating officer was called for and the investigating officer submitted a report on 15.04.2021 that the petitioner is the registered owner of the said vehicle and the investigating officer had has no objection to release the said vehicle to its registered owner Sohag Roy, S/o Milan Krishna Roy subject to condition that the vehicle may be produced as and when required, by the Trial Court to do so but the learned Court by the impugned order dated 15.04.2021 rejected the prayer for release of the seized vehicle for

the reasons that during pendency of the case, the same cannot be released and that can only be returned through confiscation proceeding.

4.

It is submitted on behalf of the petitioner that the learned Judge has failed to consider the principle laid down by the Hon'ble Supreme Court in Sunder Bhai Ambalal Desai and other vs State of Gujrat reported in (2002) 10 SCC 283: AIR 2003 SC 638 wherein it has been held that the powers under section 451 Cr.P.C should be exercised expeditiously and judiciously as it would serve various purposes, namely :-

1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.

2. Court or the police would not be required to keep the article in safe custody.

3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."

5.

This Court is mindful of a landmark judgment rendered in Union of India vs. Mohan Lal reported in (2016) 3 SCC 379, by the Hon'ble Supreme Court wherein direction for disposal and destruction of seized articles under the NDPS Act has been given. It would be apt to take note of paragraph 31.1 to the effect that 'no sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A of the Act.'

6.

There is no logic in denying interim custody of the vehicle seized under the NDPS Act since neither the state nor the owner of the vehicle is going to be benefited if the vehicle is detained in the premises of the police station where a large space in the campus of the police station will be kept for such vehicle under seizure allowed to be parked till conclusion of the trial and the police department would face inconvenience if the vehicle is kept unattended, the valuable parts of the vehicle are likely to be stolen or removed and the value of the vehicle would be diminished. That apart, during the pendency of the trial, the learned Court cannot pass any order for confiscation in terms of provisions of Section 62 (3) of NDPS Act. 7.

Learned Counsel for the petitioner invites my attention to the provisions of Sections 451 and 452 of the Code of Criminal Procedure to submit that if the vehicle under seizure is kept under the custody of the police authority, then, the vehicle is also required to be taken care of by the Court or the police station. It is not possible for them to keep vehicle under wear and tear condition of the vehicle till the trial is concluded. The vehicle may be handed over to its registered owner on furnishing appropriate bond on conditions including direction to produce the vehicle when called to do so. The bond being zimmanama and S/L may be adduced as evidence in proof of seizure of the vehicle as an offending vehicle in commission of the offence alleged under the NDPS Act. 8.

It would be profitable to reproduce the provision of section 451 and 452 of the Cr.P.C for better appreciation of the case thus: Section 451 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.

Section 452:

(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 securities, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (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 section 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 sub-sec. (2), an order made under sub-sec. (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."

9.

Since there is no provision debarring the release of the vehicle seized under the provisions of NDPS Act, Section 451 of the Cr.P.C. is not inconsistent with any specific provision under the NDPS Act

and the provision does not restrict he power of the Special Judge, NDPS Act to release the vehicle for interim custody till the trial is concluded.

10.

In conjoint reading of the provisions of the aforesaid provisions and principle of law laid in Sunderbhai Ambalal Desai (supra), I am of the considered view the vehicle under seizure ought to have been returned to its registered owner in the given case when there is no objection being raised by the Investigating Officer. 11.

The provision under Section 51 of the Cr.P.C. relates to warrants, arrests, searches and seizures and seized list can be used in evidence that may require for production of the vehicle physically in the campus of the Court premises.

12.

Learned counsel for the petitioner fully refers to an unreported decision dated 19th September, 2016 in Gurbinder Singh @ Shinder vs. State of Punjab to submit that a vehicle used for committing rape and murder is being released in the garb of Section 451 Cr. P. C. as interpreted by Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai. It is pointed out that there is no logic in denying interim custody of the vehicle seized under NDPS Act that too in respect of seizure of ganja weighing 1 kg and 0.50 gram. 13.

Reliance is also placed in case of Mahesh Vishnoi vs. Smt. Suleha Patel rendered on 29th August, 2020 by the Madhya Pradesh High Court in this regard to submit that there is no restriction under the provision of the NDPS Act for the trial court to release the vehicle in interim custody. It has been held in the case of Pandurang Kadam vs. State of MP that notwithstanding the fact that the vehicle is liable to be confiscated under Section 60 of the NDPS Act, it may be released in interim custody in appropriate cases. Thus, interim custody should not be denied to the owner of the vehicle, simply because it is liable to be confiscated under Section 60 of the NDPS Act.

14.

Section 60 (3) of NDPS Act provides for protecting the interest of an innocent owner before confiscating the vehicle. The procedure of confiscation as embodied under section 60 (3) of the NDPS Act provides that the trial of the offence under the Act, whether the accused is convicted or acquitted or discharged, the special court will decide whether any article or thing seized under this Act is liable to confiscation under Sections 60, 61 or 62 of the said Act and if it decides that the seized articles or things are liable to be confiscated it may order for confiscation. The procedure for confiscation enjoined under section 63 (2) of the NDPS Act provides that until the

trial is concluded the confiscation of the vehicle/article cannot be initiated. Therefore, having regard to the aforesaid provisions under the NPDS Act, the Special Judge failed to consider for release of vehicle by application of Section 451 of the CrPC in the context of the provisions of Section 63 (2) of the NDPS Act which provides for confiscation of the vehicle and disposed thereof after the trial is over. But there is no restriction under the Act to release the vehicle under seizure for interim custody of the vehicle by the registered owner. 15.

The decision in the case of Ashok Kumar vs. State of Bihar, reported in 2001 (9) SCC 718, may also be looked into for the conditions to be adhered to before ordering release of the vehicle for interim custody of the petitioner/accused. In the said decision, it has been observed that firstly, the petitioner shall execute a bond with two solvent sureties to the satisfaction of the Chief Judicial Magistrate, secondly, that he is required to satisfy that he is the registered owner of the vehicle; thirdly, that the vehicle may be allowed to be used by his son or family members of the vehicle until disposal of the prosecution case against him and for that the petitioner is required to file an undertaking in the Court; fourthly, the petitioner is required to produce the vehicle either before the court or before such other authorities as the court may direct; and fifthly, the petitioner will not transfer to anybody else nor possession of the same be parted with until disposal of the case. 16.

Bestowing upon the principle laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai's (supra), this Court is of the view that in order to keep the vehicle in running condition by its owner and finding no objection of the Investigating Officer, there is no legal impediment in the matter of return of the vehicle to its registered owner. This Court finds that the order impugned passed by the learned Special Judge is without any logical conclusion and is liable to be set aside.

17.

Accordingly, the learned Judge is directed to release the vehicle under seizure for the interim custody of the registered owner on conditions upon furnishing appropriate bond and on undertaking to produce the vehicle as and when called to do so. 18.

With the above direction, the revisional application being CRR 8 of 2021 is allowed and disposed of.

All the parties are directed to act on the basis of the website copy of the order.

(Shivakant Prasad J.)