Ezajul Ahmed vs State Of Assam And Anr

Heard Mr. N Uddin, learned counsel for the petitioner and Ms. S Jahan, learned counsel for the State.

The petitioner was apprehended along with his bicycle bearing No.AS 01 BB-9306 (Bajaj Avenger) as some alprazolam tablet was recovered from

his possession and the tablets as well as the vehicle was seized from the accused person. Bihata Chariali PS Case No. 427/2020 under Section

8(C)/21(b) of NDPS Act was registered in this regard and the case is at the verge of conclusion of investigation and charge-sheet is yet to be laid.

After release on bail, the petitioner sought for zimma of vehicle from the concerned court but same was rejected by the learned Special Judge,

Kamrup vide order dated 25.01.2021 alleging that as the vehicle was used at the time of commission of offence and the vehicle is liable to be

confiscation so the prayer of zimma cannot be considered.

Challenging the aforesaid order, present revision petition has been preferred on the ground that keeping of vehicle insider the police premise for

indefinite period will not only damage the vehicle but will also prejudice the petitioner as he deprive of using said vehicle.

I have considered the submission of learned counsel for both the parties. It is to be noted that the learned trial court has not obtained any report from

the IO while passing the order and has mechanically rejected the prayer.

Learned Additional Public Prosecutor on instruction from the IO has submitted that no confiscation proceeding has been initiated as regard the vehicle

and the vehicle is not required for the purpose of investigation. The charge-sheet is going to be laid at the earliest.

Obviously, the petitioner will face the trial for the offence alleged and keeping of such vehicle without initiating any confiscation proceeding for a

longer period and without any ground will result miscarriage of justice and will prejudice to the petitioner. The subject matter of the case is obviously

using of drugs not the motor cycle which is kept in the police station since 02.11.2020.

The Hon’ble Apex Court has observed in Sunderbhai Ambala Desai V. State of Gujarat, reported in AIR 2003 SC 638 that the matter of custody

and disposal of seized property, pending trial can be dealt under Section 451 of the CrPC. The Hon’ble Supreme Court is of the view that the

power under Section 451 of the CrPC should be exercised expeditiously and judiciously, which would serve various purposes, namely:

Owner of the article would not suffer because of its remaining unused or by its misappropriation.

Court or the police would not be required to keep the article in safe custody;

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

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.

In view of the materials on record and the submission from the prosecution side and the facts and circumstances of the case it will be appropriate to

release the vehicle in favour of the petitioner with execution of appropriate bond.

Accordingly, the interim order dated 25.01.2021 is hereby quashed and set aside with a direction to the IO to release the vehicle in favour of the

petitioner, on executing of a bong of Rs.1,00,000/-.

In view of above, this petition stands disposed of.