Vimal Kumar Gupta @ Chhagan vs State Of Chhattisgarh

Heard on IA No.02/2022, an application for condonation of delay in filing the Revision.

On due consideration of the reasons mentioned therein, the same is allowed and delay in filing the Revision is condoned.

By way of this Petition, the Petitioner is questioning the legality and propriety of the order dated 27.07.2022 passed by the Special Judge, NDPS Act, Surajpur, District Surajpur in Misc. Criminal Case No.37/2022 whereby, the application filed by the Petitioner under Section 457 Cr.P.C seeking custody of Honda motorcycle No.CG 29-A 3005 as also mobile, has been rejected.

Shri Shukla, learned Counsel for the Applicant submits that the vehicle is registered in the name of the Applicant and the copy of registration certificate and the insurance policy of the vehicle have also been filed as the Petitioner is the registered owner of the said vehicle and a cash memo of the mobile phone is also annexed herewith. He further submits that the trial Court has rejected the application in an arbitrary manner contrary to the principles laid down in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283, therefore, the order impugned may be set aside and the application for custody of the said articles may be allowed.

On the other hand, Shri Jangde, learned Counsel appearing for the State while opposing the said application submits that since the consequential proceedings of those seized articles are to be made as per the provision prescribed under Section 60 of the NDPS Act, therefore, the application for interim custody of the vehicle and the mobile has rightly been rejected by the Court below.

Heard learned Counsel for the parties and perused the documents annexed with the Revision carefully.

Section 451 Cr.P.C provides procedure for order of custody which reads as under:-

“451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.”

In Sunderbhai Ambalal Desai vs. State of Gujarat (supra), it has been held at paras-7, 17 & 21 as under:-

“7. 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 the 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.

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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 taking 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.

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However, these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision  by  the  Registry  of  the  High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly.”

Applying the aforesaid principles to the case in hand, the order impugned rejecting the application filed by the Petitioner for interim custody of the vehicle and the mobile cannot be held to be sustainable in the eye of law, therefore, the same is accordingly set aside since it is the case of the Petitioner, who is the registered owner of the said articles and they were being used in the commission of alleged offence and the owner of the articles would not suffer because of its remaining unused for a long period.

Accordingly, the matter is remitted to the Special Judge (NDPS Act) to pass order on the interim custody of those articles owned by the Petitioner within 10 days from the date of production of certified copy of this order as per the decision rendered in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat (supra). The Special Judge (NDPS Act) may impose reasonable conditions for the ultimate production of the said articles during trial.

Resultantly, the Revision is allowed to the extent indicated above.