Calcutta High Court (Appellete Side)
Serina Khatun vs The State Of West Bengal on 7 November, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
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07.11.2014
sm
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
C.R.R.No.3222 of 2014
Serina Khatun
vs.
The State of West Bengal
Mr.Avishek Sinha
Mr.Arnab Mukherjee
Mr.H.Debnath .. for the petitioner.
Mr.Angshuman Chakraborty. ..for the State.
Mr.Avishek Sinha, learned counsel, appears on behalf of
the petitioner. Mr.Angshuman Chakraborty, learned counsel,
appears for the State/opposite party.
Mr.Sinha files affidavit-of-service, which is taken on
record.
In this application, the petitioner is aggrieved by the
order impugned dated August 28, 2014 passed by the learned
Special NDPS Court. By the said order, the learned Special
Court was pleased to reject the prayer of the petitioner, who is
the owner, for return of the seized vehicle, which is a truck.
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Mr.Sinha submits hat "Ganja" was seized in three nylon
bags, which were being carried in the said vehicle and the
husband of the petitioner was arrested from the said vehicle. In
connection with the said seizure, Bizpur P.S.No.258 dated July
6, 2014 was registered under section 20(b)(ii)(c) of the Narcotic
Drugs and Psychotropic Substances Act, 1985.
Charge sheet has already been filed and the matter is
presently pending trial before the learned Special NDPS Court.
Mr.Sinha further submits that it is the specific case of
the petitioner that the husband of the petitioner has been falsely
implicated in the said case. As the owner of the said vehicle,
she applied before the learned Special Court for release of the
same.
According to Mr.Sinha, the vehicle is subject to wear and
tear and, in view of the fact that the investigation is complete
and the charge sheet has already been filed, she is entitled to
release of the vehicle pending trial. The learned counsel
submits that the order impugned order dated August 28, 2014
shows non-application of mind by the learned Special Court. He
prays for a direction of release of the said vehicle pending trial.
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In support of his submissions, Mr.Sinha relies upon a
decision of the Hon'ble Apex Court reported in AIR 2003
Supreme Court 638 in the matter of "Sunderbhai Ambala Desai v.
State of Gujarat.
He contends that the Hon'ble Apex Court was pleased to
lay down the guidelines for exercise of powers under section 451
CrPC. He relies upon paragraph 7 of Suderbhai Ambala Desai
(supra), which reads as follows:-
"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."
Mr.Sinha also relies upon a decision of an Hon'ble Single Bench of this court reported in 2006 Vol.2 CHN 198 in the matter of Tridip Mitra v. State of West Bengal. He argues that following the ratio in Sunderbhai's case (supra), the Hon'ble Single Bench was pleased to consider the comparative exercise 4 of jurisdiction under Section 451 CrPC and Section 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
He further contends that the order impugned dated August 28, 2014 has failed to take notice of the principle of law enunciated in the above noted judgements and the learned Special Court was under a legal obligation to consider the matter expeditiously and judiciously.
Mr.Angshuman Chakraborty, learned counsel, appearing for the State submits that there is no whisper in the application filed by the petitioner before the learned Special Court disowning the factum of alleged use of the vehicle in question in the charged offence. In the absence of a statement from the petitioner in this respect, Mr.Chakraborty argues that the satisfaction contemplated by section 60(3) of the said Act of 1985 cannot be exercised by the learned Special Court.
Upon consideration of the submissions of the parties and the materials on record, this Court finds that the order impugned dated August 28, 2014 is cryptic qua the jurisdiction of the learned Special Court to exercise powers under Section 60 of the said Act of 1985 read with Section 451 CrPC. 5
In the opinion of this Court, the learned Special Court is required to follow the guidelines of the Hon'ble Apex Court in Sunderbhai's case (supra) to assess the need for keeping the vehicle in custody qua the progress of the investigation. This Court is informed that the charge sheet has already been submitted. This Court is thereby of the further opinion that since the investigation is complete, the requirement for disowning the knowledge of the fact that the vehicle was used in the alleged offence is a technicality, which can be taken care of in an appropriate application before the learned Special Court.
In the backdrop of the above discussion and taking notice of the law laid down in Sunderbhai's case (supra) and Tridip Mitra's case (supra), the order impugned dated August 28, 2014 is set aside. The petitioner shall be at liberty to approach the learned Special Court with a proper application for release of the vehicle, which shall then be disposed of by the learned Special Court expeditiously and in accordance with law.
CRR No.3222 of 2014 is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be made available to the parties as expeditiously as possible. 6 (Subrata Talukdar, J.)