Allahabad High Court
Mohd. Khalid vs State Of U.P. And Another on 23 February, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- APPLICATION U/S 482 No. - 19915 of 2020 Applicant :- Mohd. Khalid Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Sanjay Kumar Mishra, learned counsel for applicant and learned A.G.A. for State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 08.10.2020 passed by Judicial Magistrate, Court No.11, Deoria in Case Crime No.99 of 2020, under Sections- 60/63 of U.P. Excise Act and Section 207 of Motor Vehicles Act, Police Station- Khukhundu, District- Deoria, as well as the order dated 28.10.2020 passed by Sessions Judge, Deoria in Criminal Revision No.82 of 2020, (Mohd. Khalid Vs. State of U.P.), arising out of order dated 08.10.2020, whereby above-mentioned criminal revisions has been dismissed.
Record shows that in respect of an incident which occurred on 23.06.2020, a delayed F.I.R. dated 24.06.2020 was lodged and was registered as Case Crime No.0099 of 2020, under Sections- 60/63 of U.P. Excise Act and Section 207 of Motor Vehicles Act, Police Station- Khukhundu, District- Deoria. In the aforesaid F.I.R., two persons, namely, Mohd. Khalid (applicant herein) and Ehsan have been nominated as named accused.
As per the prosecution story as unfolded in above-mentioned F.I.R., it appears that acting an a tip of the police of concerned police station laid trap near Khukhundu crossing. A truck bearing registration number UK-08-CA-3041 was detained for search and huge quantity of Indian made Foreign Liquor was recovered from aforesaid truck. Accordingly, the driver and passenger of aforesaid truck were arrested and the disputed truck was challaned under Section- 207 of Motor Vehicles Act. Furthermore, an oppo mobile and Rs.600/-, recovered from arrested persons, was also seized.
Subsequently, applicant- Mohd. Khalid, the registered owner of Truck No. UK-08-CA-3041 filed a release application seeking release of the same. On the aforesaid application, concerned Magistrate called for a police report from Police Station- Khukhundu, District- Deoria. Accordingly, Station House Officer of concerned police station submitted a report dated 20.07.2020 stating therein that the disputed truck has been seized and the mobile recovered from the accused person has been deposited in the maalkhana. A further report was received that no proceedings under Section 72 of U.P. Excise Act are pending against applicant.
In the light of aforesaid, concerned Magistrate proceeded with the release application and ultimately allowed the same vide order dated 02.09.2020 holding therein that the release shall not have any adverse affect in case any order of confiscation is passed by District Magistrate in confiscation proceedings as contemplated under Section 72 of U.P. Excise Act.
However, the disputed vehicle was not released as proceedings under Section 72 of U.P. Excise Act were pending against applicant. Accordingly, applicant filed an application dated 06.10.2020 seeking release of disputed vehicle. This release application came to be rejected by concerned Magistrate vide order dated 08.10.2020. The concerned Magistrate concluded that since proceedings under Section 72 of U.P. Excise Act are pending, therefore no directions can be issued for release of the disputed vehicle. Feeling aggrieved by above order dated 08.10.2020, applicant filed a criminal revision before Sessions Judge, Deoria. Same was registered as Criminal Revision No.82 of 2020, (Mohd. Khalid Vs. State of U.P.). Aforesaid criminal revision came to be dismissed by the revisional court, i.e., Sessions Judge, Deoria vide order dated 28.10.2020.
Thus, feeling aggrieved by aforesaid orders dated 28.10.2020 and 08.10.2020, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
Learned counsel for revisionist submitted that the disputed vehicle was seized on 23.06.2020 and is lying unattended at Police Station- Khukhundu, District- Deoria. No useful purpose shall be served by releasing the custody of the disputed truck. Furthermore, as the truck is lying unattended in open, its value shall also diminish. On the aforesaid premise, it is submitted that in view of law laid down by Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in 2003 (46) ACC, 223, the Judicial Magistrate ought to have released the seized vehicle in favour of the revisionist after taking recourse to any of the safeguards as mentioned in the aforesaid judgement itself. Reliance is placed upon paragraphs 6, 7 and 14 of the aforesaid judgement which are reproduced herein below:-
"6. 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 property 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.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, 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:-
"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. The object of the Code seems to be that any property which is in the control of the Court either directly or 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."
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.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
Valuable Articles and Currency Notes
14.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."
A learned Single Judge of this Court while dealing with a similar issue, in Criminal Revision No. 3831 of 2017 (Harish Chandra Singh Vs. State of U.P.) observed as follows:
"Learned counsel for the revisionist submitted that the disputed mineral i.e. mooram was seized in the month of August, 2017. On the aforesaid premise, it is submitted that in view of the law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in 2003 (46) ACC, 223, the C.J.M., Kaushambi, ought to have released the seized minor mineral in favour of the revisionist after taking recourse to any of the safeguards as mentioned in the aforesaid judgement itself. Reliance was placed upon paragraphs 6, 7 and 14 of the aforesaid judgement which are reproduced herein below:-
"6. 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 property 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.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, 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:-
"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. The object of the Code seems to be that any property which is in the control of the Court either directly or 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."
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.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
Valuable Articles and Currency Notes
14.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. "
On the aforesaid premise, it is urged that detained vehicle of petitioner is liable to be released.
It is next contended that mere pendency of confiscation proceedings before District Magistrate, under section 72 of U.P. Excise Act, shall not operate as a bar regarding release of vehicle seized under section 60 of U.P. Excise Act. In support of aforesaid submission reliance is placed upon judgement dated 22.1.2020 in Application U/s 482 No. 33012 of 2019 (Vikas Kumar Vs. State of U.P and Another) wherein following has been observed:
"In Nand Vs. State of U.P., 1996 Law Suit (All) 423 this Court has observed that pendency of the confiscation proceedings under Section 72 of the U. P. Excise Act is not a bar for release of the vehicle which is required for the trial under Section 60 of the U. P. Excise Act. It has been clearly observed by this Court in para 7 that:-
" I think it is not proper to allow the truck to be damaged by remaining stationed at police station. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. 2 lakhs before the C.J.M., Kanpur Dehat and files a bond that he shall be producing the truck as and when needed by the criminal courts or the District Magistrate, Kanpur Dehat, and he shall not make any changes nor any variation in the truck."
This Court further has held in the case of Jai Prakash Vs. State of U.P., 1992 AWC 1744 that mere pendency of confiscation proceedings before the Collector is no bar to release the vehicle.
In Kamaljeet Singh Vs. State of U.P., 1986 U.P. Cri. Ruling 50 (Alld), the same view was taken by this court that pendency of confiscation proceedings shall not operate as bar against the release of vehicle seized u/s 60 of Excise Act.
In the opinion of this Court, it is not disputed that the power under Section 451 of Cr.P.C. is not properly and widely used by the court below while passing the orders. The power conferred under Section 451 of Cr.P.C. be exercised by the court below with judicious mind and without any unnecessarily delay. So that the litigant may not suffer, merely keeping the article in the custody of the police in the open yard will not fulfill any purpose and ultimately it result the damage of the said property. The owner of the property be allowed to enjoy the fruits of the said property for the remaining period for which the property is being made.
Further in the opinion of this Court, the procedure as contemplated under Section 457 of Cr.P.C. be also followed promptly, so that the concerned Magistrate may take prompt decision for disposal of such properties and be released in favour of the entitled person of the said property, keeping the said property in the custody will not solve any purpose and that gives a mental and financial torture to the owner of the said property which is also against the law and against the principles of natural justice. "
In view of law laid down by Apex Court as well as this Court as noted herein above, coupled with fact that applicant is registered owner of disputed vehicle and non release of same will diminish it's value as it is lying unattended at concerned police station and further detention of aforesaid vehicle will not serve any purpose, the present application is liable to be allowed.
Accordingly, present application succeeds and is allowed. Impugned orders dated 08.10.2020, passed by Judicial Magistrate, Court No.11, Deoria in Case Crime No.99 of 2020, under Sections- 60/63 of U.P. Excise Act and Section 207 of Motor Vehicles Act, Police Station- Khukhundu, District- Deoria, as well as the order dated 28.10.2020 passed by Sessions Judge, Deoria in Criminal Revision No.82 of 2020, (Mohd. Khalid Vs. State of U.P.) are hereby quashed. Matter is remitted to concerned Magistrate to decide release application of applicant afresh in the light of observations made herein above within a period of two months from the date of production of a computer generated copy of this order which shall be filed before Court below by applicant by means of an affidavit.
Order Date :- 23.2.2021 Saif