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Madhya Pradesh High Court

Balaji Transport Company Through ... vs State Of M.P. on 19 August, 2020

Equivalent citations: AIRONLINE 2020 MP 923

Author: Prakash Shrivastava

Bench: Prakash Shrivastava

1                                                               CRR No.1869/2020

           HIGH COURT OF MADHYA PRADESH
                   BENCH AT INDORE
    (SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)

                             CRR No.1869/2020

Balaji Transport Company                                    .... Petitioner


                                        Vs.

State of M.P.                                               Respondent

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        Shri Anil Ojha, learned counsel for the petitioner.
        Shri      Prabal        Jain,      learned        counsel        for     the
respondent/State.
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Whether approved for reporting :


                                     ORDER

(Passed on 19/8/2020) 1/ By this revision petition under Section 397 of the Cr.P.C., petitioner has challenged the order dated 2.7.2020 passed by the Special Judge (NDPS Act) Rajgarh (Biaora) rejecting the petitioner's application filed under Section 451, 457 of the Cr.P.C. for Supurdgi of the Gas Tanker No.MH04- DS-9911.

2/ Submission of learned counsel for the petitioner is that the contraband item has been seized from the driver and conductor of the Tanker and the Tanker belonging to the petitioner was used for supply of Gas to Vijaypur Gas Plant and that the Tanker is lying in open during the rainy season and is subject to natural decay and the same be given on Supurdgi to the petitioner on appropriate condition.

3/ Learned counsel for the State has opposed the 2 CRR No.1869/2020 application by submitting that the Tanker has been seized in a case registered under Section 8/20 of the NDPS Act and there is a possibility of confiscation of the Tanker.

4/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that 5 kg of Ganja has been seized from Mithun Nath and Kamalsingh, the accused persons. They are stated to be the driver and conductor of the Tanker No.MH04-DS-9911. Offence under Section 8/20 NDPS Act has been registered against the accused persons and the Tanker has been seized. According to the memorandum of accused persons recorded under Section 27 of the Evidence Act, the contraband item was purchased by them on the way. The seizure memo mentions the value of the Tanker as Rs.20 Lacs. The document showing that the Tanker belongs to the petitioner has not been disputed by the counsel for the State.

5/ 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 circulars are issued for 3 CRR No.1869/2020 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."

6/ 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.

7/ Sec.60 of the NDPS Act 1985 deals with the liability of illicit drug, substance, plant, article and conveyance 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 drug or 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.

8/ 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 4 CRR No.1869/2020 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 judgments 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 Malu Khan and another Vs. State of MP 1999 (2) MPLJ 243.

9/ 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 (2015 SCC Online CHH 1132).

10/ Having regard to the above factual and legal position and also considering the fact that the Tanker standing in the police station is subject to natural decay and will loose its value in course of time and also taking note of the submission of counsel for the petitioner that the Tanker was used for the purpose of transportation of LPG to Vijaypur Gas Plant, which comes within the ambit of essential service notified by the Government, I am of the opinion that the petitioner is entitled to Supurdgi of the Tanker in question subject to the following conditions:-

1) The petitioner will furnish solvent surety/security of a sum of Rs.20 Lakhs to the satisfaction of the trial Court.

2) The petitioner will also furnish an undertaking before 5 CRR No.1869/2020 the trial Court that he will not change the nature or colour of the Tanker, nor he will transfer or alienate it pending the trial.

3) The petitioner will furnish an undertaking that he will produce the vehicle in question as and when required during the trial.

4) The photographs of size 18"x12" of the Tanker from all sides and also containing the Registration Number, Engine Number and Chassis Number will be taken at the expense of the petitioner in the presence of the authorized person from the Court and will be kept in the file of the case.

The revision petition is accordingly allowed.

(PRAKASH SHRIVASTAVA) Judge Trilok.