Narinder Kumar Choprai vs State of U.P.

Virendra Singh, J.—This revision is preferred by the revisionist Narinder Kumar Chopra against the impugned order dated 9.1.2009 passed by learned Additional Sessions Judge, Fast Track, Court No. 2, Agra by which the learned Additional Sessions Judge had rejected the release application moved by the applicant/revisionist for release of vehicle Tata Indica Car seized by the police of police station Sadar Bazar, Agra in case Creim No. 561 of 2008, State v. Sutikshan Sarna and Ors., u/s 18/20 N.D.P.S. Act.

I have heard learned Counsel for the revisionist/applicant and leaned A.G.A and perused the record.

It is contended on behalf of revisionist that the impugned order is erroneous on the facts of the case as well as in the eyes of law because the name of the revisionist is neither mentioned in the F.I.R nor any involvement of vehicle concerned in the trade of narcotics has been mentioned, nor the revisionist/applicant is charge sheeted. The revisionist is owner of the alleged vehicle bearing Registration No. CH04A/7379. Sutikshan Sarna was the driver of the car and is cousin brother of the revisionist and this fact has never come either in the F.IR or in the charge sheet that there was involvement of the revisionist or his vehicle in the trade of narcotics. Hence reasons given by the learned Additional Session Judge in the impugned order are contrary to the record. The revisionist is law abiding citizen and retired account officer food, civil supplies and consumer affair department, State of Punjab. If there is any criminal case is found by the police, that is against the driver of the revisionist, hence the car of the revisionist may be released thereby allowing this revision and setting aside the impugned order dated 9.1.2009.

The learned A.G.A contended that there is no error in the impugned order, either on the facts of the case or in the eyes of law and the learned lower court has rightly rejected the release application of the vehicle, which was being used for carrying the narcotics which is liable to be confiscated.

In the light of the contentions of both the parties, I have gone through the facts and circumstances on record. It reveals that Sutikshan Sarna the driver of the vehicle was found carrying 73Kg Doda Powder punishable under the provisions of N.D.P.S. Act. The learned lower court has found that since the vehicle is involved in a case of serious nature, therefore, the vehicle is not liable to be released in view of law laid down in the case of Sundar Singh v. State of U.P. reported in 1991 Crl. LG 3016 Allahabad as the case punishable under the N.D.P.S. Act are of serious nature as is the law laid down by Hon''ble the Supreme Court in the case of Union of India v. Mahboob Alam reported in 2004(4) ACC 128. It is also held by the learned lower court that since the vehicle concerned is liable to be confiscated as pre the provisions u/s 60 of N.D.P.S. Act, therefore, the vehicle is not liable to be released.

Learned Counsel for revisionist relied on the law laid down by this Court in the case of Sabir Ali v. State of U.P and Anr. reported 2009(2) ADJ 172 in which brother Judge Hon''ble Mr. Justice Arvind Kumar Tripathi released the vehicle involved in a case of carrying 46 bags of rice pertaining to fair price shop, on this ground that the vehicle in question, if allowed to be kept at police station for long period, its condition would be deteriorated and utility of the vehicle would be affected and it will be destroyed. It is also contended that since the accused/applicant in this case has already been enlarged on bail in the alleged case punishable under the N.D.P.S. Ac, therefore, the gravity of the offence pertaining to the heinous crime is not established to refuse the release of the vehicle in the light of the law laid down by this Court in the case of Sundar Singh ( Supra).

The learned A.G.A referred Section 60 of the N.D.P.S. Act, in which it is provided that whenever any offence punishable under the N.D.P.S Act has been committed and the said narcotic drug or psychotropic substance was being carried in a conveyance, the conveyance used in carrying it, shall be liable to be confiscated unless the owner of conveyance proved that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person- in-charge of the conveyance and that each of them had taken all reasonable precautions against such use.

In the light of the contentions of both the parties, I have gone through the facts and circumstances on record. The law is very much clear pertaining to release of the case property as is laid down by Hon''ble Supreme Court in the case of Sunder Bhai Ambalal Desi v. State of Gujrat reported in 2003 (46) ACC 223, in which it is held that the powers u/s 457 of Cr.P.C. should be exercised expeditiously and judicially, as it would serve various purposes. Seized articles should be handed over to the person to whom the same belong and for this purpose the court may adopt the procedure of recording evidence required for, bond and security may be taken, photographs of such articles may be taken and the same should be attested and counter signed by the person concerned to whom the property is to be delivered and the accused of the case thereby imposing appropriate conditions because getting stationed the property at Police station for a long period is not useful. The Hon''ble Supreme Court has also laid down the law that whatever may be the situation, it is of no use to keep seized vehicle at the Police station for a long period and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guaranty, as well as security for return of the vehicle if required at any point of time. The Hon''ble Supreme Court has also emphasized that it is expected and trusted for the Magistrates concerned that they would take immediate action using powers provided for release of property in the Cr.P.C. properly and promptly and to ensure that the property shall not be kept for a long time at the police station, in any case for not more than 15 days to one month. The Hon''ble Supreme Court has also clarified that in case where the accused disputes that he is not involved in the alleged incident and no article was found from him, then such endorsement be taken on the photograph with regard to the vehicle and it is made clear that there can not be any necessity of producing the vehicle before the court and the seizure report may be sufficient.

In the light of the law laid down by Hon''ble the Supreme Court in this regard, I am of this view that whatever may be the situation, it is of no use to keep the seized vehicle at the police station for a long period. Certainly, the proceedings if taken for confiscation of the vehicle concerned, will take a long process apprehending the vehicle to be kept unattended at the police station and becoming it junk day by day, deteriorating the value of the vehicle and depriving the owner of the vehicle for its use unnecessarily, if at the time of trial the confiscation of the vehicle is not found legal. Since the proper Panchanama before handing over the vehicle to its registered owner, can be used in evidence instead of its production before the court during the trial and since the object of confiscation of the vehicle may be met out for the value of the vehicle by way of the surety bond, if the confiscation is found legal and the vehicle is not produced, therefore, there is no use to refuse the release of the vehicle in favour of revisionist/applicant. Hence I come to this conclusion that the impugned order dated 9.1.2009 is liable to be set aside and the learned lower court is liable to be directed to act upon for releasing of the vehicle in the light of law laid down by Hon''ble the Supreme Court in the case of Sundar Bhai Amba Lal Desai. ( Supra).

Therefore, this revision is allowed accordingly and the learned lower court is directed to decide the release application of the revisionist/application within a period of one month after appearance of the revisionist/applicant to press the release application before the concerned court.