Gorilal vs State Of M.P

By this revision petition under Section 401/397 of the Cr.P.C., the petitioner has challenged the order dated 24.7.2020 passed by the Special Judge (NDPS Act), Rajgarh (Biaora) rejecting the petitioner's application filed under Section 451 of the Cr.P.C. for Supurdgi of the vehicle.

Learned counsel appearing for the petitioner submits that the petitioner is the owner of the motorcycle which was used for commission of offence under the NDPS Act and that the motorcycle is standing in the police station and getting decayed, therefore, on appropriate condition the same be released.

Learned counsel for the State has opposed the petition.

Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the motorcycle No. MP39MM4354 was used in the commission of offence under Section 8/20 of the NDPS Act as 1.2 kg of Ganja was seized and the case under the NDPS Act was registered. The petitioner had filed the application under Section 451 of the Cr.P.C. for Supurdgi of the motorcycle on the ground that the motorcycle is getting decayed by standing in open, therefore, the same be released. Trial court by the impugned order has rejected the said application.

This Court in the case of Dinesh Vs. State of M.P. in CRR No.1754/2020 vide order dated 6.8.2020 has considered the issue of release of vehicle which is used in the commission of offence under the NDPS Act on Supurdgi and it has been held that:-

"Shri Manish Vijaywargiya, learned counsel for the petitioner.

Shri Kanishka Gupta, learned counsel for the State.

Heard through video conferencing.

This revision petition under Section 397 of the Cr.P.C. is directed against the order dated 7.12.2019 passed by the Special Judge (NDPS Act), Rajgarh rejecting the petitioner's application for Supurdgi of the vehicle under Section 451 of the Cr.P.C.

The brief facts are that Bajaj Pulser motorcycle No.MP42MN5718, Engine No. DHYRJB57432, Chassis No.MD2A11CYOJRB34168 was seized in connection with the offence under Section 8/15 of the NDPS Act in Crime No.182/19 registered in Police Station Limachouhan, District Rajgarh. The petitioner had filed the application for giving the said motorcycle on Supurdgi on the ground that he is the registered owner of the vehicle. The trial Court had rejected the application for Supurdgi on the ground that the motorcycle was used for transportation of the contraband item and it is liable to be confiscated.

Learned counsel for the petitioner submits that at the time of seizure of the contraband item, the petitioner was standing near the motorcycle and the seizure was made from the bag and the motorcycle was not used for transporting the contraband item. He further submits that the motorcycle is standing in open and will decay and that there is no bar of interim custody of the vehicle in the NDPS case.

Learned counsel for the State has opposed the application and has supported the impugned order.

Having heard the learned counsel for parties and on perusal of the record, it is noticed that Sec.451 of the Cr.P.C empowers the court to pass appropriate orders for custody and disposal of property pending trial in certain cases. Hon'ble Supreme Court considering the scope of Sec.451 in the matter of Sunderbhai Ambalal Desai Vs. State of Gujarat with C.M. Mudaliar Vs. State of Gujarat (2002) 10 SCC 283 has held that:-

"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as-

(1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary;

(3) if the property is subject to speedy and natural decay, to dispose of the same.

It is submitted that despite wide powers, proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody.

In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It 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."

It has further been observed in para 10 of the judgment that to avoid the loss or destruction of the seized property, the power u/S.451 of the Cr.P.C should be exercised promptly and at the earliest.

Sec.60 of the NDPS Act 1985 deals with the liability of illicit drug, substance, plant, article and conveyance to confiscation. Sub-section (3) of Sec.60 provides for confiscation of the animal or conveyance used in transporting the contraband substance. Similarly Sec.61 deals with confiscation of goods used for concealing illicit drug or substances. No provision has been pointed out by learned counsel for respondents which bars release of the conveyance or other items seized along with the contraband substances pending the trial.

This Court in the matter of Manoj Kumar Pandey Vs. State of MP vide order dated 27th August, 2019 in Cr.R. No.2971/2019 (2019) SCC Online MP 2315 has duly considered the Scheme of the Act and the notification issued u/S.52-A of the Act and has reached to the conclusion that there is no provision in the NDPS Act to restrict the power of the trial court to release the vehicle in interim custody. While holding so the earlier judgments of this court in the case of Panduram Kadam Vs. State of MP 2005 (2) ANJ MP 351 has been relied upon. Interim custody of the vehicle invoking power u/S.451 of the Cr.P.C seized in connection with the NDPS Act has also been permitted by another order of this court dated 24th April, 2019 passed in M.Cr.C No.6245/2019 in the case of Liyakat Ali Vs. State of MP 2019 SCC Online MP 726. Same was the view taken in the case of Malu Khan and another Vs. State of MP 1999 (2) MPLJ 243.

Chhattisgarh High Court also has taken the same view in the order dated 26th June, 2015 in Cr.R No.421/2015 in the case of

Manoj Kumar Sharma Vs. State of Chhattisgarh (2015 SCC Online CHH 1132).

Having regard to the aforesaid legal position and considering the fact that the motorcycle which has been seized from the petitioner is subject to decay in course of time, I am of the opinion that the petitioner is entitled to release of the motorcycle subject to the following condition:-

The petitioner will submit personal bond of a sum of Rs.10 Lakhs with one surety of the like amount to the satisfaction of the trial Court for releasing the vehicle in question.

Before releasing the vehicle in interim custody to the applicant, the SHO of the concerned police station shall get photographs of the seized vehicle from all sides and also the photographs clearly showing Engine Number and Chassis Number. These photographs shall be kept in the file of the trial Court along with the record.

The petitioner will furnish an undertaking that he will produce the vehicle in question as and when required during the trial.

The petitioner will not alienate the vehicle or make use of the said vehicle for any unlawful purpose during the pendency of the case.

An undertaking shall also be given by the petitioner that the nature of the vehicle in question shall not be changed without the prior permission of the Court.

With the aforesaid directions, the revision petition is allowed."

In the present case also the motorcycle in question is said to be standing in the open in the police station and the submission of counsel for the petitioner is that during this rainy season the motorcycle will get decayed. It has not been disputed that petitioner is the owner of the motorcycle.

Learned counsel for the petitioner has also pointed out that the judgment of the Supreme Court in the matter of Union of India Vs. Dinesh Kumar Verma reported in 2005(9) SCC 330 does not come in the way of the present petitioner because the facts in the present case require release of the vehicle on Supurdgi.

Having regard to the aforesaid factual and legal position, the revision petition is allowed. The order dated 24.7.2020 passed by the trial Court is set aside and the trial Court is directed to release the Motorcycle No. MP39MM4354 used in the offence under the NDPS Act registered in Crime No.121/2020 subject to the following terms and conditions:-

The petitioner shall furnish Supurdginama to the sum of Rs.10 Lakhs and the security of the like amount to the satisfaction of the trial Court for releasing the motorcycle in question.

The petitioner will not change the original nature/colour of the vehicle.

The petitioner will not alienate or transfer the said motorcycle to any third party, nor he will create any third party interest therein.

In case in the opinion of the trial Court the petitioner does not produce the vehicle in the condition under which it was given in his possession, the petitioner shall pay the amount which will be determined by the trial court.

The petitioner will produce the vehicle before the trial Court as and when required.

Before releasing the vehicle in interim custody to the applicant, the SHO of the concerned police station will take colour photographs of the concerned vehicle of size 18"x12" from all sides and also photographs showing engine number and chassis number. Such photographs shall be filed in the trial court and will be kept in the record of the case.

With the aforesaid direction, the revision petition stands allowed.

C.C. as per rules.