Chattisgarh High Court
Jyoti Pratap Singh vs State Of Chhattisgarh on 25 April, 2017
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1 of 6
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Cr.M.P.No.524 of 2017
Jyoti Pratap Singh S/o Beer Sai, aged about 38 years, R/o Junapara,
Devnath, PS Sitapur, Dist. Surguja (CG)
----Petitioner
Versus
1. State of Chhattisgarh, through the District Magistrate,
Ambikapur, Dist. Sarguja (CG)
2. Station House Officer, Police Station Sitapur, Dist. Sarguja (CG)
---- Respondents
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For Petitioner : Mr. Jitendra Shrivastava, Advocate For State : Mr.Majid Ali, P.L.
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Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 25.4.2017
1. The petitioner is the registered owner of Mahindra Bolero bearing registration No. CG 15 B-6835. As the said vehicle was found involved in the offence punishable under Section 20B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as "Act of 1985") and 4 kg. of contraband article ganja was recovered from the said vehicle, the police has seized the vehicle.
2. The petitioner, being the registered owner of the vehicle, filed an application for supurdnama under the provisions of the Code of Criminal procedure for custody of the said vehicle.
3. By the impugned order, the Special Judge (NDPS Act, 1985), Surguja at Ambikapur has rejected the application filed by the Page 2 of 6 petitioner holding that the petitioner is an accused in the said offence and he has not taken reasonable precaution in plying the vehicle, therefore, he is not entitled for interim custody of the vehicle, against which, this petition under Section 482 of the CrPC has been filed.
4. Learned counsel appearing for the petitioner would submit that the petitioner is the registered owner of the vehicle and the vehicle was being used by other accused persons without his knowledge and as such, no useful purpose would be served by keeping the vehicle in the Court's custody, which is likely to be damaged on exposure of sun and rain and therefore, it be handed over to the petitioner during pendency of the criminal case.
5. On the other hand, learned Panel Lawyer appearing for the State would oppose the petition.
6. I have heard learned counsel for the parties, also given thoughtful consideration to the submissions made herein and perused the record available with utmost circumspection.
7. The relevant provisions which provide for disposal and confiscation of the properties or the conveyance used for the purpose of committing any offence under the said Act are as follows:
"(3) Section 451 CrPC runs thus:
"451. Order for custody and disposal of property pending trial in certain cases.--When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending Page 3 of 6 the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation.--For the purposes of this section, "property" includes.--
(a) property of any kind or document which is produced before the Court or which is in its custody.
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
"Section 60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation-
(1) ................................. (2) ................................. (3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance or any article liable to confiscation under sub-s. (1) or sub-s.(2) 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."
Section 63. Procedure in making confiscations-
(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under S. 60 or S.62 and, if it decides that the article is so liable, it may order confiscation accordingly.
(2) Where any article or thing seized under this Act appears to be liable to confiscation under S. 60 or S.61 or S.62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, any may order confiscation accordingly;
Provided that no order of confiscation of any article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of this claim:
Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, the opium poppy, coca plant or cannabis plant is liable to speedy Page 4 of 6 and natural decay, or if the Court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub- section shall, as nearly as may be practicable, apply to the net proceeds of the sale.
(3) Any person not convicted who claims any right to property which has been confiscated under this section may appeal to the Court of Session against the order of confiscation."
8. A careful reading of the aforesaid provisions; it is quite vivid that all these provisions do not exclude the operation of Sections 451 or 457(1) of the Code of Criminal Procedure. Under sections 60 and 63 of the Act such an article or vehicle used for the purpose of commission of an offence under the Act, 1985 is liable for confiscation. In other words, the article or the vehicle must be available at the time of trial or at the end of trial for the purpose of confiscation. It does not debar the Court trying the offence to grant interim custody. There is no provision under the Act of 1985 prohibiting interim custody on the ground that confiscation proceedings has already been initiated Sections 451 & 457 of the Code of Criminal Procedure is not inconsistent with the provisions of the NDPS Act, as such, the Criminal Court has necessarily jurisdiction to pass an order for interim custody of vehicle so seized under Section 451 or 457(1) of the Cr.P.C. as the case may be, subject to certain terms and conditions, the interim custody of the vehicle, pending the trial. Section 451 or Section 457(1) of the Cr.P.C. is attracted only after the vehicle is seized and brought into safe custody, as provided under Section 55 of the Act. If that is so, it Page 5 of 6 cannot be said that Section 451 or Section 457(1) of the Criminal Procedure Code is in any way inconsistent with the scheme of the Act.
9. Thus, it is held that application under Sections 451 or 457(1) of the Cr.P.C. is maintainable before the Special Judge and it has jurisdiction to consider the matter on its own merits and merely because the proceeding for confiscation has initiated before the competent authority, it cannot be held that such application is not maintainable.
10. In Ashok Kumar Vs. State of Bihar & others 1, Their Lordships of the Supreme Court have held that it is not necessary to keep the vehicle in the compound of the court indefinitely for a very long time till the final disposal of the case.
11. Following the decision of the Supreme Court and considering the fact that the petitioner is the registered owner of Bolero jeep and it is of no use to keep the seized Bolero jeep at the police station for a long time, it is directed that Bolero bearing registration No.CG 15 B6835 shall be released to the petitioner on the following conditions:-
(i) The petitioner shall execute a bond in a sum of Rs.5,00,000/-(five lakhs) with two solvent sureties to the satisfaction of the Special Judge (NDPS Act, 1985), Surguja at Ambikapur..
(ii) The petitioner must satisfy the court that he is the registered owner of the offending vehicle.1
(2001) 9 SCC 718 Page 6 of 6
(iii) The petitioner shall not transfer or dispose of the offending vehicle to any one else and shall not make any change in its body, colour or engine. It is needless to say that make, colour, chassis number, and engine number of the offending vehicle shall be furnished by the petitioner before the trial Court with an undertaking that no damage shall be caused or no part of the vehicle be substituted.
(iv) The petitioner shall also file an undertaking before the trial Court that the offending vehicle shall not be used for commission of offence; and before giving interim custody of the offending vehicle to the petitioner, three coloured photographs of cabinet size from different angels clearly indicating registration number and other particulars of the vehicle shall be kept on file. The expenses for the photographs shall be borne by the petitioner.
(v) The petitioner shall produce vehicle either before this Court or before the Collector or such authorities as it may be directed, on his own expenses.
12. Consequently, the petition is allowed and the impugned order is hereby set aside.
Sd/-
(Sanjay K.Agrawal) Judge B/-