Gauhati High Court
Swarup Dutta vs The Union Of India on 6 October, 2021
Equivalent citations: AIRONLINE 2021 GAU 867
Author: Robin Phukan
Bench: Robin Phukan
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GAHC010133582021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./200/2021
SWARUP DUTTA
S/O TAPAN DUTTA
R/O CHOPRAJHAR PIPULTOLA
ISLAMPUR, UTTAR DINAJPUR
WEST BENGAL-733202
VERSUS
THE UNION OF INDIA
REP. BY SPECIAL COUNSEL, NCB
Advocate for the Petitioner : MR. S C BISWAS
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT
Date : 06-10-2021
1. Legality, propriety and correctness of the order dated 16.08.2021 passed by the learned Additional Sessions Juge No. 1, Kamrup (M), Guwahati in Misc. Case No. 77/2021 is impugned in this revision petition under Section 397/401 of the Cr.P.C.
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2. It is to be mentioned here that vide the impugned order, the learned Addl. Sessions Judge No.1, Kamrup (M), Guwahati has rejected the petition filed by the petitioner, namely, Shri Swarup Dutta seeking custody of Tata LPT 3718 CR BS-IV 10X2, bearing registration No. WB-91-2829.
3. Heard Ms. L. Choudhury, learned counsel for the petitioner and also heard Ms. P. Das, learned counsel appearing on behalf of Mr. S.C. Keyal, the learned Standing counsel for the NCB.
4. It is to be noted here that vide order dated 21.09.2021, a report was called for from the NCB in respect of the seized Truck. Today, Ms. P. Das, the learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing counsel for the NCB has produced the report.
5. We have perused the report.
6. It is stated that the registered owner of the vehicle is the present petitioner Shri Swarup Dutta as per the Registration certificate. He purchased the said Truck on 26.03.2018 for transportation business by paying a sum of Rs.8,00,000/- in cash and for remaining amount he took loan of Rs. 24,30,069/- from HDB finance service, Siliguri and he was paying installment of Rs. 65,600/-. Thereafter, he sold the Truck bearing registration No.WB-91-2829 to Mursid Ali, S/o Saiyab SK, on 14.11.2019, and as per agreement of sale deed, remaining installment will be paid by Mursid Ali, but Mursid Ali informed Swarup Dutta that he could not deposit the installment of the Truck, so the present petitioner wanted to sale the Page No.# 3/7 Truck to another party who is ready to deposit the remaining installment. It is to be mentioned here that Swarup Dutta, the present petitioner could not execute any sale deed with Mr. Mursid Ali. Thereafter, on his request Mr. Swarup Dutta signed another Sale Deed, to sale the Truck to Abdul Kalam, Silchar, S/o Sorubh Ali, R/o Vill-Choucha, PO-Gangarghose, P.S.- Baisi, Dist-Purnia, Bihar and as per the Sale Deed, the Truck sold @Rs. 3,20,000/- and the remaining installment will be paid by Abdul Kalam. Thereafter, he handed over the Truck to Abdul Kalam and Abdul Kalam handed over the Truck to Md. Mokim and Khusbu Rahman to deliver rice from Raiganj to Agartala on 25 th January but, unfortunately the Truck was found in trafficking of 117.650 Kg of Ganja and thereafter, the NCB has seized the Truck in connection with NCB Case No.03/2021 on 02.02.2020. Further, it appears from the report that investigation of the case is already completed and the I.O. has submitted the final complaint of this case before the learned Court below on 28.07.2021. It also appears from the report that the I.O. has objected in releasing the vehicle as it was being used for trafficking of Ganja.
7. The learned counsel for the petitioner has submitted that the vehicle was seized on 02.02.2020 and since then more than 1 1/2 year elapsed and it is exposing to sun and rain and its value is diminishing day by day and the petitioner has purchased the same on installment and it was seized in connection with this case, the installment could not be paid and the Truck was the only source of income and therefore, it is contended to release the vehicle in interim custody of the petitioner.
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8. On the other hand, the learned Standing counsel NCB has opposed the petition, on the ground, that the said vehicle was used for trafficking commercial quantity of Ganja and it may be used again for trafficking, if released on interim custody to the petitioner.
9. It is to be mentioned here that Hon'ble Supreme Court while dealing with releasing seized vehicle in the case of Ashok Kumar-vs-State of Bihar & Ors., reported in (2001) 9 SCC 718, held that:-
"we do not think it necessary to keep the vehicle in the compound of the court indefinitely for a very long time till the final disposal of this case. It is more advisable to entrust it to the registered owner on behalf of the court under certain conditions. We, therefore, direct the court in whose custody the vehicle is presently kept to release the same to the appellant on the following conditions":
1. He shall execute a bond in a sum of Rs. 1,00,000/- (one lakh) with two solvent sureties to the satisfaction of the Chief Judicial Magistrate, Muzaffarpur.
2. He must satisfy the court that he is the registered owner of the vehicle.
3. He shall not allow his son Deepak Singh to use the vehicle until disposal of the prosecution case against him. He shall file an undertaking in court to that effect.
4. He shall produce the vehicle either before the court or before such other authorities as the court may direct.
5. He will not transfer the vehicle to anybody else nor possession of the same be parted with until disposal of the case.
10. Thereafter, again in Sunderbhal Ambalal Desai-vs-State of Gujurat in Special Leave Petition (Crl.) 2745 of 2002, the Hon'ble Supreme Court had held that "In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
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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.
11. The Hon'ble Supreme Court also observed in the aforesaid case as under:-
"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.
12. This Court also in the case of Sunil Gogoi-vs-State of Assam; reported in 2003 (1) GLT 202 and in Angomjambam Naba kumar Singh-vs-Union of India (Crl. Pet.384/2020) held that Magistrate has the power to pass an order of interim custody to the rightful owner either under Section 451 Cr.P.C. pending trial of the case or under Section 457 Cr.P.C. when the property is seized by the police and trial has not yet started in as much as the applicability and operation of those provisions are not excluded by the provisions of the Act.
13. It is to be noted here that the provisions of the Code of Criminal Procedure including sections 451 & 457 have been expressly made Page No.# 6/7 applicable by virtue of Section 36-C of the NDPS Act and there is no express bar contained in the NDPS Act for grant of interim custody of the vehicle. There is no proposition of law that once the vehicle is seized for commission of the offence under Section of NDPS Act, the interim custody cannot be allowed, rather it should be disposed of expeditiously and judiciously so that the owner of the vehicle would not suffer because of its remaining unused or by its misappropriation and the Police should be required to keep the vehicle in safe custody. In the case, in hand, the learned Court below, vide the impugned order dated 16.08.2021, rejected the prayer of interim custody of the vehicle, on the ground, that it was used for transporting commercial quantity of contraband.
14. As already discussed, investigation of this case has already been completed and the I.O. has led the final complaint before the learned Court below, and as such no purpose would be served by keeping the vehicle with the investigating agency.
15. It is vehemently submitted by the learned counsel for the petitioner that it was only the source of income of the petitioner and it was purchased on installment and the same could not be paid as it was being seized. The petitioner here in this case is the registered owner of the said vehicle.
16. Having examined the impugned order of the learned Court below on the touchstone of the ratio laid down by Supreme Court in the cases of Ashok Kumar (Supra),Sunderbhal Ambala Desai (Supra) and also by this Court in Sunil Gogoi (Supra) and in Angomjambam Naba Kumar (Supra), we find that the impugned order failed to withstand the test of legality, propriety and correctness and as such, the same requires interference of Page No.# 7/7 this Court.
17. Accordingly, the impugned order dated 16.08.2021 passed by the learned Addl. Sessions Judge No. 1 in Misc. Case No. 77/2021 stands set aside. It is provided that on executing a bond of Rs.20,00,000/- and on furnishing 2 solvent sureties of like amount to the satisfaction of the learned Addl. Sessions Judge No. 1, Kamrup (M), Guwahati, the seized vehicle bearing registration No. WB-91-2829 shall be released in interim custody of the petitioner within a week from today. The petitioner has to produce the vehicle before the learned Court below as and when directed and shall not dispose of the same till disposal of the case.
Accordingly, this Crl. Rev. Petition stands disposed of.
JUDGE Comparing Assistant