Pandurang Kadam vs State of M.P. and others

U.C. Maheshwari, J.

This revision petition is preferred u/s 397/401 of Criminal Procedure Code against the order dated 29-10-2004 passed by First Additional Sessions Judge, Chhindwara in Special Case No. 5/04, whereby the application filed by the applicant u/s 451 read with section 457 of Criminal Procedure Code has been dismissed.

The brief facts for disposal of this revision petition is that the police Sausar registered a crime No. 133/04 on dated 8-7-2004 against (1) Maruti s/o Babarao (2) Santosh s/o Babasaheb and (3) Mangalia s/o Laxman Kutti under sections 8 and 18 of Narcotic Drugs and Psychotropic Substances (In brief "NDPS) Act, 1985.

In the abovesaid registered offence the contraband substances (Ganja) was seized from the vehicle Qualice bearing registration No. M.H. 26-E 1755 by seizure memo dated 8-7-2004 at about 15.00 o''clock near village Rohana. The said vehicle was registered with R.T.O. in the name of the applicant and in support of it photocopy of registration was also submitted on the record.

Learned counsel of the applicant submitted that the present applicant is not an accused in the present case and driver of the applicant took and plied the vehicle without his knowledge and in such a circumstance vehicle was seized and still it is in possession of police station concerned, where the vehicle is going to deteriorated day by day in the lack of proper maintenance and if the vehicle is not given to the applicant on supradnama as in interim custody then he has to suffer irreparable loss.

In support of his contention he placed reliance in a reported case 1999 MPWN 2 217 page 351, Khalil Ahmad Ansari v. State of M.P., in which held as under:

Heard parties. It is true that the conveyance carrying contraband is liable to confiscation under the NDPS Act, but that does not mean that the vehicle can be allowed to remain at the police station for indefinite period during the trial. The trial may take a considerable time and it would be proper to release the vehicle on supradnama of the registered owner on suitable terms, and proper security.

The petition is therefore, allowed. The Trial Court is directed to release the truck on Supradnama to the registered owner with proper security and on suitable terms keeping in mind section 60/63 of the NDPS Act.

He also referred Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, , in held as under :

In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taken appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles." In view of the aforesaid submission he assailed the impugned order of the Special Court.

On the other hand the counsel of the respondent/State has supported the impugned order and prayed for dismissal of this revision petition in view of section 60 in respect of provisions of confiscation of the property.

Having heard the learned counsels of the parties, I am of the considered view that the impugned order was passed without considering all the aforesaid legal position, and therefore, it can be struck down by invoking the revisional jurisdiction.

In view of the admitted position that the present applicant Pandurang Kadam is not an accused in the alleged case and being a registered owner he is entitled for interim custody of the said vehicle and also in view of the settled legal position as held in the abovementioned dictums of the Courts.

So far as the submission of the Govt. Advocate is concerned the property seized during the investigation can be confiscated but till the final disposal of the case, the Court may pass the appropriate order for interim custody of the vehicle u/s 457 or 451 of Criminal Procedure Code and whenever order of confiscation is passed then the property may be recalled by the Court for appropriate proceedings.

In view of the aforesaid, the impugned order is having apparent perversity and as such it requires interference in the revision and by invoking the revisional jurisdiction the impugned order is set aside and application u/s 451/457 of Criminal Procedure Code for interim custody of said vehicle filed by the applicant is allowed and it is directed that after verifying where about the vehicle from the Regional Transport Authority and if it is registered in the name of the present applicant and if the applicant submits a Supradnama bond of rupees seven lacs and a solvent surety of like amount to the satisfaction of the trial Court with undertaking of the applicant that he will not transfer the abovesaid vehicle or create third party interest over the vehicle in any manner, and also that whenever it would be required by the Court, as per direction the same will be produced on his own expenses at the place as would be directed, then the said vehicle Qualis bearing registration No. M.H. 26-E. 1755 along with its paper be handed over to the applicant in interim custody till the disposal of the trial.

In view of the aforesaid premises, revision petition is allowed accordingly and the impugned order is set aside.