Patna High Court - Orders
Nasim Akhtar vs State Of Bihar on 20 December, 2011
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.49497 of 2008
Nasim Akhtar, son of Manour Hussain, resident of
village-Bikramganj, Police Station-Bikramganj, District-
Rohtas at present Baheri, Ballia.
............................................................Petitioner.
Versus
The State Of Bihar...........................Opposite Party.
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For the Petitioner : Mr. Vikram Deo Singh, Advocate.
For the State : Mr. Nand Kishore Prasad, A.P.P.
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O R D E R
4. 20.12.2011. This application, under Section 482 of the Code of Criminal Procedure, is directed against the order dated 20.9.2008 passed by the Additional Sessions Judge-I, Rohtas at Sasaram in Bikramganj P.S. Case No.21 of 2007, rejecting the application of the petitioner filed under Section 451 of the Code of Criminal Procedure to release the seized Maruti Van bearing Registration No.HR-03-4039 in his favour.
2. The brief facts of the case is that on the basis of the self statement of Rajiv Kumar, the Officer Incharge of Bikramganj Police Station, District-Rohtas, Bikramganj P.S. Case No.21 of 2007 was instituted on 8.2.2007 under Sections 21 and 27-A of the N.D.P.S. Act against the four 2 F.I.R. named accused. In his self statement, Rajiv Kumar, the Officer Incharge of Bikramganj Police Station, District- Rohtas, has alleged that on 8.2.2007, in the evening, he alongwith other police personnel moved to raid against the persons indulged in illegal narcotics business. In that course, at the Bikramgaj-Ara road, a Maruti Van bearing Registration No.HR-03-4039 was found standing in front of Juhi-Rexin Steel Works. On search of the vehicle, a person, who was sitting on a driving seat, was found keeping four Pudias of heroin, who, on query, disclosed his name as Md. Anwar. The other person, who had sat in an adjacent seat, disclosed his name as Md. Sahabuddin Khan and on search, four Pudias of heroin was recovered from the pocket of his Kurta. The third person, who had sat back side on the seat, disclosed his name as Jahangir Quershi alias Bholi and on search, nothing was recovered from his possession. Each seized Pudias was containing 200 grams of heroin. As such, 1600 grams of heroin were recovered. On query, the aforesaid persons also disclosed that Rafique Farooqui of Gulzarbagh, Bikramganj, uses the said vehicle in doing illegal narcotic business and indulged them in the same by giving money. Accordingly, he arrested the aforesaid three 3 persons and seized the said Maruti Van.
3. Learned counsel appearing on behalf of the petitioner made submission that the petitioner is the registered owner of the seized van bearing Registration No.HR-03-4039 and he had filed an application under Section 451 of the Code of Criminal Procedure on 23.5.2007 before the Additional Sessions Judge-I, Rohtas at Sasaram for the release of the seized vehicle in his favour, but the Additional Sessions Judge-I, Rohtas at Sasaram, rejected the application vide order dated 20.9.2008 against the spirit of Section 451 of the Code of Criminal Procedure. It has also been submitted that no confiscation proceeding is pending against the seized vehicle under Section 60(3) of the N.D.P.S. Act. Learned counsel for the petitioner also placed reliance upon a decision of the Hon'ble Apex Court rendered in Sunderbhai Ambalal Desai Vs. State of Gujarat (AIR 2003 Supreme Court 638).
4. On the other hand, learned A.P.P. for the State made submission that the Additional Sessions Judge-I, Rohtas at Sasaram, has rightly rejected the prayer of the petitioner for release of the said vehicle in his favour as, as per the provisions of Section 60(3) of the N.D.P.S. Act, the 4 seized vehicle is liable to confiscation and would be required as material exhibit in the trial.
5. In the case of Sunderbhai Ambalal Desai (supra), the Hon'ble Apex Court held in paragraph nos.17 and 18 as under:
"17. 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.
18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."5
6. From the impugned order dated 20.9.2008, it appears that the Additional Sessions Judge-I, Rohtas at Sasaram, rejected the application of the petitioner for release of the said seized vehicle mainly on the ground that as per Section 60(3) of the N.D.P.S. Act, the seized vehicle is liable to confiscation and would be required as a material exhibit in the case.
7. Under the aforesaid facts and circumstances of the case and in view of the decision of the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra), keeping the vehicle in the compound of the police station for a long time till disposal of the case is not necessary but it is more advisable to entrust it to the registered owner under certain conditions.
8. Accordingly, the impugned order dated 20.9.2008 passed by the Additional Sessions Judge-I, Rohtas at Sasaram in Bikramganj P.S. Case No.21 of 2007 is hereby quashed and this application is allowed.
The trial court is directed to release the seized vehicle bearing Registration No.HR-03-4039 in favour of the petitioner on verifying the paper of ownership etc. and executing the bond of Rs.1,00,000/-(Rupees one lac) with 6 two sureties by the petitioner. The petitioner will also file an undertaking to the effect that the said seized vehicle would not be transferred to anybody else till the disposal of the case and the same will be produced as and when required by the court.
(Rajendra Kumar Mishra, J) P.S.