Chattisgarh High Court
Ankush Kumar Chandrakar vs State Of Chhattisgarh on 13 July, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 1222 of 2022
Ankush Kumar Chandrakar S/o Kanakram Chandrakar, Aged About 32
Years R/o Village- Basuladabari, Police Station Bagbahra,, District :
Mahasamund, Chhattisgarh
---- Petitioner
Versus
State Of Chhattisgarh Through Station House Officer, Police Station Chilfi,,
District : Kawardha (Kabirdham), Chhattisgarh
---- Respondents
(Cause-title taken from Case Information System)
For Petitioner : Shri Dharmesh Shrivastava, Advocate.
For Respondent/ State : Shri Vimlesh Bajpai, G.A.
Hon'ble Shri Justice Rakesh Mohan Pandey
ORDER
13.07.2023 Heard
1. The petitioner has filed the present Cr.M.P. challenging the order dated 04.02.2022 passed by the learned Special Judge (NDPS Act), Kabirdham (Kawardha) C.G. in Special Criminal Case No. 781/2021, by which the application for Supurdnama has been rejected to the extent that neither vehicle bearing registration No. M.H.-12 K.N.-2284 nor mobile phone has been released to the petitioner on Supurdnama.
2. Facts of this case are that on 26.09.2021, an information was received by the police of Police Station-Chilfi, District-Kabirdham that the alleged vehicle bearing registration No.M.H.-12 K.N.-2284 was being used for transportation of illicit liquor. On such information, raid was conducted and when the vehicle was intercepted, 9.680 kg. of liquor was recovered. Having 2 asked for the valid documents, no documents pertaining to such liquor was produced, therefore, Special Criminal Case No.781/2021 was registered against the petitioner.
3. The petitioner filed an application under Section 451 of Cr.P.C. before the learned Special Judge, NDPS Act, Kabirdham (C.G.) for releasing his mobile phone and four wheeler vehicle bearing registration No.MH-12-KN- 2284 on Supurdnama mainly contending that he is the owner of the aforesaid mobile phone F-7 of OPPO Company, Black Colour and four wheeler vehicle, the vehicle will lose its value and may get damaged if it is kept in open space which will adversely affect the functioning of the vehicle, therefore, an application under Section 451 of Cr.P.C. for release of his mobile phone and four wheeler vehicle bearing registration No.MH-12-KN- 2284 on Supurdnama was moved by the petitioner under the terms to be fixed by the learned Special Judge, NDPS Act.
4. Learned counsel for the petitioner would submit that the Co-ordinate Bench of this Court in Cr.M.P. No.1374 of 2020 in the case of Tikeshwar Singh Vs. State of Chhattisgarh decided on 11.12.2020, Cr.M.P. No.524 of 2017 in the case of Jyoti Pratap Singh Vs. State of Chhattisgarh and another decided on 25.04.2017 and Cr.M.P. No.562 of 2016 in case of Sonelal Patel Vs. State of C.G. and others decided on 07.07.2016 a s well as the Hon'ble High Court of Madhya Pradesh in case of Rocky Verma (died) Thr. His legal Wife Smt. Juli Verma Vs. State of M.P. decided on 24.02.2021 have released the vehicle on Supurdnama and this case is squarely covered by the aforesaid decisions passed by the Co-ordinate 3 Bench of this Court as well as the Hon'ble High Court of Madhya Pradesh. He would further submit that confiscation proceeding though having been commenced, however, it does not put any bar to release the vehicle on interim custody. He also placed reliance on the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283 and would further submit that applying such principles, till confiscation proceeding is concluded, the vehicle ought to have been handed over to the Petitioner. It is also submitted that no useful purpose would be served by keeping the vehicle as well as the aforesaid mobile phone in the custody except the loss caused to it. It is further submitted that charge-sheet having been filed, no further enquiry is necessary in respect of criminal case and as such the vehicle as well as the aforesaid mobile be released in favour of the Petitioner.
5. Learned State counsel opposes the prayer.
6. I have heard learned counsel for the parties and perused the documents.
7. The confiscation proceeding under Chhattisgarh Excise Act, 1915 is governed by Section 47-A of the Act. The Section 47 (2) of the Act regulates the power and procedure to be adopted for confiscation, which reads as under:-
"47 (2) When the Collector, upon production before him of intoxicants, articles, implements, utensils, materials, conveyance etc. or on receipt of a report about such seizure as the case may be, is satisfied that an offence covered by clause (a) or clause (b) of sub-section (1) of Section 34 has 4 been committed and where the quantity of liquor found at the time or in the course of detection of such offence exceeds five bulk liters he may, on the ground to be recorded in writing, order the confiscation of the intoxicant, articles, implements, utensils, materials, conveyance etc. so seized. He may, during the pendency of the proceedings for such confiscation also pass an order of interim nature for the custody, disposal etc. of the confiscated intoxicants, articles, implements, utensils, materials, conveyance etc. as may appear to him to be necessary in the circumstances of the case."
8. Perusal of the sub section-2 would show that power has been conferred to the Collector upon production of the article and on having satisfied that offence covered under the clause (a) or clause (b) of sub- section (1) of Section 34 has been committed and if liquor is more than 5 bulk liters, he may order for confiscation of articles, intoxicants, implements, utensils including the conveyance so seized. It also shows that he may, during pendency of the proceeding, pass an order of interim nature for custody, disposal etc. of the confiscated intoxicants, articles, implements, conveyance as may appear to be necessary in the facts of the case.
9. Section 47 (B) of Chhattisgarh Excise Act, 1915 provides for appeal against the order of confiscation. Therefore it necessarily leads that order of confiscation can only be challenged when it reaches it's finality and the statute does not give any space to challenge any other order except the final one. In view of this, the necessary implication would be that any order of interim nature if any passed, the High Court in exercise of it's power vested in it under Article 227 of the Constitution of India can always test the propriety or legality of the order. It is a settled proposition of jurisprudence 5 that every wrong will have a remedy. So if the order is found to be wrong then certainly the High Court would have all the power to correct the same.
10. The order dated 04.02.2022 under challenge would show that it is a cryptic order. No reasons have been assigned for rejection and only it is stated that since vehicle was found transporting illicit liquor as such it is not feasible to hand over the vehicle to the Petitioner. So for all practical purposes vehicle is lying at the disposal of authorities or at police station. Therefore if it is kept in the police station it must be occupying space or is prone to cause natural decay and may loose its road-worthiness when kept in stationary position. In facts of the case following the law laid down in case of General Insurance Council and others Vs. State of Andhra Pradesh and others reported in (2010) 6 SCC 768 wherein the earlier principles laid down in case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283 was reiterated, the order of rejection of application for interim custody cannot be allowed to remain. Consequently, applying the said principles, it is directed that the vehicle as well as the aforesaid mobile phone be released in favour of the Petitioner by way of interim measure, if the confiscation proceedings have not been concluded till date of production of copy of this order.
11. Accordingly, the vehicle bearing registration No.MH-12-KN-2284 as well as the mobile phone F-7 of OPPO Company, Black Colour is directed to be released to the Petitioner on the following conditions:-
1. Before release of vehicle and aforesaid mobile, proper panchnama be prepared.
2. Photographs of vehicle should be taken and bond should also be obtained from the petitioner with the condition that the articles would 6 be produced if required at the time of trial.
3. Proper security i.e. personal bond and adequate surety be obtained before release of vehicle.
12. In view of foregoing discussions, the petition succeeds and is allowed. No order as to cost(s). If the Petitioner is registered owner of the vehicle as well as the aforesaid mobile phone, he shall produce all the recent documents in his possession.
Sd/-
(Rakesh Mohan Pandey) Judge Rekha