Madhya Pradesh High Court
Santosh Gurjar vs The State Of Madhya Pradesh on 10 February, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
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The High Court Of Madhya Pradesh
Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava
CRR 3472 of 2021
Santosh Gurjar vs. State of MP
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Shri Ashish Singh Jadaun, counsel for the applicant.
Shri Pramod Pachauri, Public Prosecutor for the respondent/ State.
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Reserved on 03/02/2022
Whether approved for reporting ..../.......
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ORDER
(Passed on 10/02/2022) Per Rajeev Kumar Shrivastava, J:-
Present revision under Section 397/401 CrPC has been preferred by applicant Santosh Gurjar challenging the order dated 26/11/2021, passed by Special Judge (NDPS) Act, Guna (MP) in MJCR No.283/2021, by which the application filed by him u/S. 451/457 CrPC for release of his four wheeler Maruti Celerio Car bearing Registration No.MP08CB-1746 on interim custody, has been rejected.
(2) Facts giving rise to present revision, in short, are that on 02/10/2021 on getting information from an informer, police party at the time of checking, found that a white Maruti Celerio Car bearing registration No. MP-08-CB-1746 was carrying opium and on search, from the possession of driver of said vehicle, contraband articles (opium) was seized and a Crime was registered under Section 8/18 of NDPS Act.
Thereafter, applicant filed an application u/S. 451/457 of CrPC to get his vehicle on interim custody and same has been rejected vide order dated 2 26/10/2021. Being aggrieved, applicant filed a MJCR before the Special Judge and the same has been rejected by impugned order dated 26/11/2021. Hence, this revision.
(3) It is submitted on behalf of applicant that applicant is the original owner of seized vehicle. Vehicle in question is having no direct or indirect nexus with the said crime. Impugned orders passed by the Courts below are contrary to law. Livelihood of the applicant is depending on the said vehicle. Vehicle is lying in the compound of Police Station concerned without any protection from weather. Vehicle in police station for a long period is of no use. Condition of seized vehicle is deteriorating day-by-day as the same is lying in open sky and under heat of sun and rains. Vehicle is loosing its value day-by-day due to lack of maintenance, natural wear and tear and passing of time. The Court below ought to have passed an appropriate order by taking appropriate bond and guarantee as well as security for return of vehicle to the applicant on interim custody. Impugned orders passed by the Courts below are contrary to the provisions of law and same are liable to be quashed as they are passed in anticipation of confiscation proceedings. As of today, the applicant has not been convicted in any of alleged offence and unless he is convicted, the vehicle cannot be confiscated, therefore, applicant is entitled to interim custody of vehicle. He is ready to maintain condition of vehicle and during pendency of all proceedings, he will not alienate or transfer vehicle. He also undertakes that he will not use the vehicle for commission of any offence. The Magistrate concerned is competent to release the vehicle on interim custody and, hence, prayed for setting aside 3 the impugned order by allowing this revision, with a direction to police authorities to release the vehicle to applicant on interim custody. In support of his contention, he has relied upon the order dated 06/09/2021 passed by a Coordinate Bench of this Court passed in the case of Sagar Singh vs. State of State [CRR No.1651 of 2021] and the judgment passed by the Hon'ble Apex Court in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283, wherein procedures for disposal of valuable items like currency, liquor, vehicle and narcotics drugs have been laid down as under:-
"Powers under Section 451 of 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 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.'' (4) Per contra, the learned State Counsel opposes the prayer of the applicant by submitting that once, confiscation proceedings have been initiated, the vehicle in question is not liable to be released. It is undisputed fact the applicant is the registered owner of vehicle which was seized by the police in which contraband articles (opium) was being transported and if it is released, then the applicant may use vehicle in the same manner. The Trial Court has rightly rejected application as no palpable error on the face of record has been pointed out by applicant in 4 the order impugned. The aforesaid vehicle would be required during trial for describing the nature of property in detail, therefore, prays for dismissal of instant revision.
(5) Heard the learned counsel for parties and perused the documents available on record.
(6) Section 451 of CrPC reads as under:-
''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 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 457 of CrPC reads as under:-
457. Procedure by police upon seizure of property.
''(1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months 5 from the date of such proclamation.'' (7) From perusal of record, it is clear that although the applicant is the registered owner of the vehicle in question but in the said vehicle contraband articles (opium) was being transported by the driver of the seized vehicle. The judgments cited by the applicant as above is of no help to him. It is settled-principle of law that the object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of produce and means used for committing offence while object of prosecution is to punish the offender- accused. Although, the applicant has pleaded that 659 grams of contraband articles (opium) was being transported in the vehicle by the driver without his knowledge, but since the prosecution has stated that confiscation proceedings have already been initiated, therefore, this Court is of the considered view that the learned trial Court has not committed any error by passing the order impugned which is also affirmed by the Sessions Court. The applicant shall adduce evidence, which is required to be produced by him during trial.
(8) Considering the aforesaid facts and circumstances of the case, no interference is warranted at this stage. It is a matter to be adjudicated by trial Court based on evidence. Hence, the prayer sought by the applicant in present petition for release of his vehicle on interim custody cannot be granted and, therefore, revision fails and is hereby dismissed.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by MAHENDRA BARIK Date: 2022.02.11 15:26:33 +05'30'