Punjab-Haryana High Court
Balbir Singh @ Fauji vs State Of Punjab --Respondent on 27 November, 2009
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CRM.M 26499 of 2009 1
In the High Court for the States of Punjab and Haryana at Chandigarh.
CRM.M 26499 of 2009
Decided on 27.11.2009.
Balbir Singh @ Fauji -- Petitioner
vs.
State of Punjab --Respondent
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Padamkant Dwivedi,Advocate,for the petitioner Mr.R.S.Rawat,A.A.G.Punjab,for the respondent. Rakesh Kumar Jain, J:(Oral) This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), for quashing of the impugned order dated 13.12.2008, passed by learned Special Judge, Ferozepur, declining to release on supardari silver colour Indica Car bearing No. DL 8CG 0464.
It is alleged in the petition that petitioner is the registered owner of the aforesaid vehicle, which was taken into custody by the police in case FIR No. 25 dated 15.3.2008 registered under Sections 18/61/85 of the Narcotic and Psychotropic Substances Act, 1985 at Police Station Ferozepur Cantt, District Ferozepur.
The aforesaid vehicle is now parked in the police station, CRM.M 26499 of 2009 2 Ferozepur Cantt, District Ferozepur for the last more than two and half years.
The petitioner had applied for release of the vehicle on supardari but the said application was dismissed by the learned Special Judge, Mansa, vide his impugned order dated 13.12.2008 (Annexure P-3).
The petitioner, after a passage of some time, again made a request vide application dated 06.8.2009 (Annexure P 4) but that also met the same fate on the ground that earlier similar application was dismissed.
Notice of motion was issued in this case. Respondent has filed the reply. It is averred therein that the petitioner was apprehended on 15.3.2008 by S.I. Amritpal Singh, Incharge, Narcotic Cell, Ferozepur, while he was travelling in the car in question from which one kg Opium was recovered. It is admitted that the car was taken in police possession which is lying parked in the malkhana. The said car is admittedly owned by the petitioner. It is further averred that if the car is released on supardari, then there is an apprehension that the petitioner will use it again for transportation of narcotics. It is also averred that in the main case, charge has been framed and the case is now fixed for evidence.
Learned counsel for the petitioner has argued that the impugned order passed by the Court below is devoid of any reason. Further, Section 451 Cr.P.C. empowers the Court to order for custody and disposal of the property pending trial in certain cases. The provisions of Section 451 Cr.P.C. are reproduced below"- CRM.M 26499 of 2009 3
"451. Order for custody and disposal of property pending trial in certain cases,- When any property is produced before any Criminal Court during an 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.
Learned counsel also relies upon a decision of the Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat AIR 2003 Supreme Court 638.
As against this, learned counsel for the State has argued that if the vehicle is released on supardari, there is an apprehension of its misuser by the petitioner for transportation of narcotics. Therefore, it is submitted that the petition may be dismissed.
I have heard learned counsel for the parties and have perused the record with their assistance.
Section 451 of Cr.P.C. provides that the Court can pass appropriate order such as one for proper custody pending conclusion of the inquiry or trial, and if the property is subject to speedy and CRM.M 26499 of 2009 4 natural decay, order it to be sold or otherwise dispose of as it thinks necessary.
In the case of Sunderbhai (supra) while dealing with Section 451 of Cr.P.C. the Apex Court observed as under:-
"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 panchnama 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 property in detail"
It is a matter of common knowledge that vehicles which are subject matter of case property and are parked in the police stations for such a long time of over two years, reduces into junk and could not be put to any use in case of acquittal of the accused.
Moreover, the impugned order does not disclose any reason, therefore, it cannot be sustained and as such the same is hereby quashed.
The learned Magistrate is directed to order release of the CRM.M 26499 of 2009 5 vehicle in question to the petitioner by preparing proper panchnama before handing it over possession 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 property in detail. The petition is disposed of with these directions.
Nov 27,2009 (Rakesh Kumar Jain) RR Judge