Uttarakhand High Court
27 June vs State Of Uttarakhand & Anr on 27 June, 2025
2025:UHC:5521
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 409 of 2025
27 June, 2025
Narendra Singh Mahar Alias Sonu --Applicant
Versus
State of Uttarakhand & Anr. --Respondents
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Presence:-
Mr. Ajay Joshi, learned counsel for the Applicant.
Mr. Vipul Painuly, learned AGA assisted by Mr. Chitrarth Kandpal,
learned Brief Holder for the State.
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Hon'ble Ashish Naithani, J.
This criminal misc. application is filed under Section 528 of B.N.S.S. by the Applicant to quash/set- aside the order dated 10.03.2025 passed by the learned Special Sessions Judge (N.D.P.S. Act), District Pithoragarh in Misc. Criminal Application No. 17 of 2025, titled as "Narendra Singh Mahar alias Sonu vs. State of Uttarakhand" under Section 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985, P.S. Kotwali, District Pithoragarh and to allow the release application filed by the Applicant and direct the release of the seized 1 Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521 vehicle/KTM Duke 250ABS Motorcycle (bearing Registration No. UK-05E-1101) in favour of the Applicant.
2. The brief facts of the case are that on 04.02.2025, an F.I.R. was lodged against the Applicant and co-accused person with the allegations that while police party was on patrolling duty, the biker, who was riding on a high speed stopped his bike and made a U- turn but it got skidded and the biker along with pillion rider felt down on the road and when the police approached them to help they started running and they got apprehended. It is also alleged when the accused were nabbed, they tried to throw something from their pocket and when it was recovered, it was found to be heroine/smack (around 3.25 grams) and KTM Duke 250ABS motorcycle bearing registration no. UK-05E- 1101 was intercepted and seized under Motor Vehicles Act.
3. The applicant has falsely been roped in in the alleged commission of crime and he has no connection with the alleged crime; that, there has been non- compliance of mandatory provisions of N.D.P.S. Act including Sections 42, 50 and 52A and the contraband 2 Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521 recovered from a public place, is less than the small quantity and no independent witness was there; that, the Applicant is the sole owner of the vehicle, which was seized in connection with the said crime under N.D.P.S. Act and under Sections 3, 181, 184, 39, 192, 129, 194(D), 207 of Motor Vehicles Act. The Applicant possesses valid registration certificate insurance of the vehicle.
4. Learned Special Sessions Judge (N.D.P.S. Act), Pithoragarh vide order dated 17.02.2025 allowed the bail application of the Applicant, thereafter, the Applicant filed an application for release of the said vehicle, but learned court below vide order dated 10.03.2025 rejected the said application in view of Sections 60 & 63 of N.D.P.S. Act.
5. The order dated 10.03.2025 passed by the learned court below is arbitrary and improper for the reason that in view of Section 51 of the N.D.P.S. Act, the provisions of the B.N.S.S. would be applicable in cases of warrants, arrests, searches and seizures and in view of Section 497(1) read with 503 of BNSS, the vehicle ought to have been released in custody of its registered owner, 3 Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521 therefore, the order dated 10.03.2025 deserves and is liable to be set-aside.
6. Heard learned counsel for the parties.
7. It is contended by learned counsel for the Applicant that the vehicle has been lying unattended at the police station compound and the same is exposed to sun and rain, thereby rendering it to natural wear and tear and open to deterioration. There is no use of keeping vehicle there in police station and the said vehicle be released in his favour in view of Sections 451 and 457 of the CrPC.
8. In support of his contention, he relied upon the judgment rendered by the Hon'ble Apex Court in the case of "Sunderbhai Ambalal Desai Vs. State of Gujarat", reported in (2002) 10 SCC 283.
9. He further relied upon the judgment of Hon'ble High Court of Uttarakhand in the judgment of "Abhijeet Kumar vs. State of Uttarakhand", 2019 SCC Online UTT 265 and the judgment of Hon'ble Supreme Court in the case of "Bishwajit Dey vs. The State of Assam"
(Criminal Appeal No.87 of 2025) delivered on 07.01.2025.4
Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521
10. Relying upon these cases, learned counsel for the Applicant submits that in view of Sections 451 and 457 CrPC and as the orders can be passed for release of the property pending conclusion of the trial, if the property is subject to speedy and natural degrade and if otherwise, it is expedient, so to do, the release application should have been allowed. This impugned order suffers from illegality and is liable to be quashed.
11. Per contra, learned State counsel admitted that it is evident from the recovery memo/F.I.R. itself that through at the time of recovery, the police party tried to associate independent witness but none came forward for the same.
12. I have gone through the judgment and order relied upon by learned counsel for the Applicant rendered by the Hon'ble Apex Court along with provisions of Sections 451 and 457 of CrPC.
13. In the case of 'Sunderbhai Ambalal Desi' (supra), the Hon'ble Apex Court has held as under:-
"17. In our view, whatever be the situation, it is of no use to keep such seized vehicle at the police station 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 vehicle, if required at 5 Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521 any point of time. This can be done pending hearing of the 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."
14. The issue of release of vehicle involved in transportation of NDPS substance also cropped up before the Hon'ble Apex Court quite recently in Criminal Appeal No.87 of 2025, "Bishwajit Dey Vs. State of Assam"
decided on 07.01.2025, in which case the Hon'ble Apex Court has gone into the provisions of Section 60 of NDPS Act in great detail with the help of various case laws and came to this conclusion that in the absence of any specific power under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke general power under Sections 451 and 452 for release, pending decision in the criminal case; the trial court has discretion to release the vehicle in the interim. However this power would have to be exercised, in accordance with law, in the facts and circumstances of each case.6
Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521
15. For ready reference, para nos.22 and 23 of 'Bishwajit Dey' (supra) are quoted hereinbelow:-
"22. This Court is further of the opinion that there is no specific bar/restriction under the provisions of the NDPS Act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance in the interim pending disposal of the criminal case.
23. In the absence of any specific bar under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for return of the seized vehicle pending final decision of the criminal case. Consequently, the trial Court has the discretion to release the vehicle in the interim. However, this power would have to be exercised in accordance with law in the facts and circumstances of each case."
The Hon'ble Apex Court has allowed the appeal with a direction to the trial court to release the vehicle in question in the interim supurdagi.
16. Thus, the impugned judgment and order dated 10.03.2025 passed by learned Special Sessions Judge cannot sustain and deserves to be set aside and is accordingly set-aside.
17. Thus the C-528 Application is allowed. The vehicle in-question is directed to be released in favour of the Applicant after executing personal bond of `50,000/- and two local sureties, each of the like amount, to the satisfaction of the court concerned along with an 7 Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521 undertaking that ownership of the vehicle would not be altered, in any condition, whatsoever, and he shall produce the vehicle either before the court concerned or before such other Authority as the Court may direct.
(Ashish Naithani, J.) 27.06.2025 Akash 8 Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.