Allahabad High Court
Smt. Radha Devi Mishra vs The State Of U.P on 8 February, 2013
Author: Visnhu Chandra Gupta
Bench: Visnhu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD,
LUCKNOW BENCH, LUCKNOW
Criminal Misc. Case No. 5166 (u/s 482 Cr.P.C.) of 2011
Smt. Radha Devi Mishra, W/O Late R.N. Mishra,
R/O ES IB 186, Katra Paltan Khhawni, Sector - A,
Aliganj, Lucknow.
------Petitioner -: Versus:-
State of U.P.
.............. Opposite Party
Petitioner's Counsel :- Sri H.S. Tiwari, Advocate
Respondents' Counsel :- Govt. Advocate,
Hon'ble Visnhu Chandra Gupta,J.
J U D G M E NT (1) Challenge in this petition under Section 482 Criminal Procedure Code (for short 'Cr.P.C.) is the order dated 18.10.2011 passed by Addl. Sessions Judge, Court No. 1, Raebareli rejecting the application of petitioner for release of the motorcycle having registration No. UP 32 DC/9335, in Misc. Case No. 13 of 2011, arising out of Case Crime No. 680 of 2011, under sections 8/21/22/23 Narcotic Drugs and Psychotropic Substances Act, 1984 (for short 'NDPS Act'), Police Station - Lalganj, District - Raebareli (2) I have heard learned counsel for the petitioner and learned A.G.A. and also perused the record.
(3) For deciding this petition the facts in brief are that when the petitioner's son Rahul Mishra alongwith his friend Anshu Tiwari were going to village Bahuwa, P.S. Lalauli, District - Fatehpur, contravened articles were recovered by the police from the pocket of both the accused. They were arrested alongwith motorcycle in connection with case Crime No. 680 of 2011, under sections 8/21/22/23 NDPS Act, Police Station - Lalganj, District - Raebareli. The mother of accused Rahul Mishra moved an application for release of vehicle before the trial court but the court passed impugned order dated 18.10.2011 rejecting the application.
(4) During the course of hearing of this case information was sought from District Judge, Raebareli regarding confiscation proceedings of motorcycle through Registrar of this Court. The District Judge by fax massage dated 29.1.2013 informed alongwith report of police Lalganj, Raebareli indicating therein that no report regarding confiscation of motorcycle was presented by the police.
(5) From perusal of the impugned order it reveals that while dismissing the application the trial court directed that the vehicle will remain forfeited till the disposal of the case in view of Section 60 of NDPS Act. However, no proceedings u/s 60 of the Act for confiscation of the aforesaid vehicle were independently conducted.
(6) Section 60 of the NDPS Act provided that whenever offence has committed under the Act and if any animal or conveyance used in carrying any contravened substance or thing shall be liable to confiscation unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use.
(7) Procedure for conducting confiscation proceeding is provided under section 63 of the NDPS Act. Sub-section (1) of section 63 provides as under :
"In the trial of offence under this act, whether the accused is convicted or acquitted or discharged, court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that article is so liable, it may order confiscation accordingly".
(8) It is also provided that no order of confiscation of an article or thing shall be made until expiry of one month from the date of seizure, or without hearing to the person who committed the offence, if know, and also claims any right thereto and the evidence if any which he produce in respect of his claim.
(9) Section 63 of NDPS Act requires separate proceedings for confiscation and that too after lapse of one month from the date of seizure and after hearing the person who committed the offence or who may claim any right in the seized article or thing. Admittedly, no such proceedings were ever initiated by the Court. Nothing has been brought on record to show that any proceedings were initiated after issuing notice either to accused or the owner of vehicle or opportunity of hearing was provided to owner of vehicle and accused from whose possession the vehicle was seized. The petitioner has not been given any opportunity to adduce evidence in support of his claim in the light of provision contained in section 63 of NDPS Act. This fact is also substantiated from the police report placed before this court alongwith fax communication of District Judge, Raibareli. Consequently, it is held that no confiscation proceedings has ever been taken place in respect of the vehicle in question.
(10) The learned counsel has submitted that in absence of such proceedings if any person moves an application for release of the vehicle, the same shall be dealt with in accordance with the provisions contained in Chapter XXXIV of the Cr.P.C. The vehicle is standing in open place without any care of it, the same may be released in view of provisions contained in Chapter XXXIV of Cr.P.C. as held in 2003 SCC (Cri) 1943 (Sunderbhai Ambalal Desai Vs. State of Gujarat).
(11) Admittedly, in this case the person who seeks release of the vehicle is not an accused in the aforesaid case. The son and his co-accused was found having contravened article in their pockets and not in the motorcycle. No material has been produced by prosecution to show that the vehicle was being used for committing this offence within the knowledge of the owner. The applicant/petitioner, who is the registered owner of the vehicle, categorically stated that she was not aware with carrying contravened article by his son while going on motorcycle. Therefore, impugned order is liable to be set aside.
(12) Keeping in view of the facts and circumstances of the case and taking into consideration of this aspect of the matter that the vehicle stationed in police station in uncared manner and also keeping in view the directions contained in the judgment of Hon'ble Supreme Court in 2003 SCC (Cri) 1943 (Sunderbhai Ambalal Desai Vs. State of Gujarat), this court is of the view that the vehicle may be released to the petitioner subject to production of original document and furnishing a personal bond and two sureties to the satisfaction of the court concerned with an undertaking that vehicle shall not be disposed of or transferred in any manner until specific order has been obtained from the Trial Court.
(13) The petition is accordingly allowed. The learned trial court shall release the vehicle in question to the petitioner in terms of this order.
Order Date : 8th February, 2013
S. Kumar. (Mr. Justice Vishnu Chandra Gupta)