Madhya Pradesh High Court
Sri Rama Roadlines Sole Proprietorship ... vs The State Of Madhya Pradesh on 14 August, 2020
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
1 Cr.R. No.1578/2020
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
Criminal Revision No. 1578/2020
Sri Rama Roadlines
Vs.
State of MP
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Shri.Kratik Mandloi, learned counsel for the applicant.
Shri Gagan Bajad, learned counsel for the respondent.
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Whether approved for reporting :
ORDER
(Passed on 14th August, 2020) The Revision Petition u/S.397 read with Sec.401 of the Cr.P.C is directed against the order dated 16/3/2020 passed in MJCR/10120/2020 passed by the learned Special Judge (NDPS Indore) rejecting the petitioner's application u/Ss.451 and 457 of the Cr.P.C for supurdgi of 648 bags and boxes of fertilizer along with original bilty papers. [2] The brief facts are that on the basis of the information received by the Narcotic Cell, Indore container No. TS.07.UG.3014 was intercepted in which 55 kg of ganja stored in three boxes was found from the possession of accused Lakhan Kushwaha, Nihalsingh and Irfan. The said truck was also transporting 648 bags of fertilizer (bags and boxes of urea 2 Cr.R. No.1578/2020 fertilizer) and they were also seized.
[3] The applicant had filed the application before the court below with the plea that the applicant is a registered transport company and it had taken the container No. TS.07.UG.3014 on rent through a broker for the purpose of transporting 314 bags and 334 boxes of fertilizer from the godown of Fertis India P. Ltd to the authorised trader at Indore vide bilty No.61502 dated 18/2/2020 in the container through the driver from Nagole to Indore. Further plea was raised that the applicant has no connection with the seized contraband item and that the applicant is entitled to release of the seized fertilizer which has wrongly been seized along with the contraband item. [4] The court below has rejected the application on the ground that the fertiliser has been seized along with the contraband item and investigation is in progress and the offence is serious in nature, therefore, it cannot be relieved. [5] Learned counsel for applicant submits that the accused persons who were transporting the contraband item have been arrested and that the applicant is a transport company which was validly transporting the fertiliser in a rented container on the basis of valid bilty having no connection with the alleged offence, therefore, the applicant is entitled for interim custody of the fertiliser. He further submits that the fertiliser is subject to 3 Cr.R. No.1578/2020 natural decay and since it has been kept in open in the rainy season, therefore, in every likelihood it would destroy. He submits that the fertiliser is worth about 16 lakhs and the applicant is ready to secure the said amount.
[6] Learned counsel for State has opposed the application and has submitted that the fertiliser has been seized along with the contraband item, therefore, it cannot be released. [7] Having heard the learned counsel for parties and on perusal of the record, it is noticed that Sec.451 of the Cr.P.C empowers the court to pass appropriate orders for custody and disposal of property pending trial in certain cases. Hon'ble Supreme Court considering the scope of Sec.451 in the matter of Sunderbhai Ambalal Desai Vs. State of Gujarat with C.M. Mudaliar Vs. State of Gujarat (2002) 10 SCC 283 has held that:-
"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as-
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary;
(3) if the property is subject to speedy and natural decay, to dispose of the same.
6. It is submitted that despite wide powers, proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various 4 Cr.R. No.1578/2020 circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody.
7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. 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."
[8] It has further been observed in para 10 of the judgment that to avoid the loss or destruction of the seized property, the power u/S.451 of the Cr.P.C should be exercised promptly and at the earliest.
[9] Sec.60 of the NDPS Act 1985 deals with the liability of illicit drugs, substance, plants, articles and conveyances to confiscation. Sub-section (3) of Sec.60 provides for confiscation of the animal or conveyance used in transporting the contraband substance. Similarly Sec.61 deals with confiscation of goods used for concealing illicit drugs or 5 Cr.R. No.1578/2020 substances. No provision has been pointed out by learned counsel for respondents which bars release of the conveyance or other items seized along with the contraband substances pending the trial.
[10] This Court in the matter of Manoj Kumar Pandey Vs. State of MP vide order dated 27th August, 2019 in Cr.R. No.2971/2019 (2019) SCC Online MP 2315 has duly considered the Scheme of the Act and the notification issued u/S.52-A of the Act and has reached to the conclusion that there is no provision in the NDPS Act to restrict the power of the trial court to release the vehicle in interim custody. While holding so the earlier judgment of this court in the case of Panduram Kadam Vs. State of MP 2005 (2) ANJ MP 351 has been relied upon. Interim custody of the vehicle invoking power u/S.451 of the Cr.P.C seized in connection with the NDPS Act has also been permitted by another order of this court dated 24th April, 2019 passed in M.Cr.C No.6245/2019 in the case of Liyakat Ali Vs. State of MP 2019 SCC Online MP 726. Same was the view taken in the case of Malook Khan and another Vs. State of MP 1999 (2) MPLJ 243.
[11] Chhattisgarh High Court also has taken the same view in the order dated 26th June, 2015 in Cr.R No.421/2015 in the case of Manoj Kumar Sharma Vs. State of Chhattisgarh 6 Cr.R. No.1578/2020 (2015 SCC Online CHH 1132).
[12] In the present case the applicant was transporting the fertiliser on the basis of the bilty from Ferits India P. Ltd Nagore to Indore. The SHO Narcotic Cell, Indore had sent the report dated 3rd March, 2020 to the Court below stating that the transportation was done on the basis of valid bility as also tax invoice letter and E-way bill, accordingly he had given no objection for releasing the fertiliser on supurdgi. [13] The record further reflects that the fertiliser which has been seized is subject to the natural decay especially when it is kept in open in this rainy season. Hence, I am of the opinion that the trial court has committed an error in rejecting the application for interim custody filed by the petitioner. [14] In the circumstances mentioned above, the application for interim custody deserves to be allowed. Hence, the revision petition is allowed and trial court is directed to release the seized fertiliser subject to the following conditions:-
[i] That the applicant will furnish solvent security to the satisfaction of the trial court equal to the value of the seized fertiliser for its release. [ii] That the applicant will furnish personal bond for a sum of Rupees Twenty lakhs with one surety of the like amount to the satisfaction of the trial court with an 7 Cr.R. No.1578/2020 undertaking to cooperate in the trial. [iii] that the applicant will get the seized fertiliser videographed/photographed in the presence of the responsible officer who will be deputed by the court and a copy of this video will be kept in the file of the case. [iv] that a proper panchnama of release of fertilizer will be prepared.
[v] on release, the applicant will be entitled to the transport and delivery of the released fertiliser as per the E-way bill at the destination and the receiving party will be entitled to use it in the manner it deems fit in accordance with law.
(Prakash Shrivastava) Judge vm