Application under Section 482 Cr.P.C. challenged an order rejecting release of seized truck and betel nuts. Court quashed order, finding no exceptional circumstances warranting detention, and remanded for fresh decision. Relied on Sundarbhais judgment.
Impugned order quashed; respondent directed to decide release application afresh within one month.
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Court No. - 66
Case :- APPLICATION U/S 482 No. - 27073 of 2022
Applicant :- Om Prakash Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shiv Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. V.P. Srivastava, the learned Senior counsel assisted by Mr. Shiv Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.
Challenge in this application under Section 482 Cr. P. C. is to the order dated 29.6.2022 passed by Additional Sessions Judge, Court No. 5, Fatehpur, in Criminal Misc. Case No. 138 of 2022 (State Vs. Anil Shukla and others), Sessions Trial No. 69 of 2022, arising out of Case Crime No. 161 of 2021, under Sections 323, 504, 332, 353, 395, 120B, 419, 420, 468, 412, 471 IPC, P.S. Kalyanpur, District Fatehpur, whereby the release application filed by applicant Om Praksh has been rejected.
Record shows that in respect of an incident, which is alleged to have occurred on 23.8.2021, a prompt F.I.R. dated 23.8.2021 was lodged by first informant/opposite party 2 Sri Dhar Tripathi and was registered as Case Crime No. 161 of 2021, under Sections 323, 504, 332, 353, 395, 120B, 419, 420, 468, 412, 471 IPC, P.S. Kalyanpur, District Fatehpur. In the aforesaid F.I.R. five persons namely Anil Kumar Shukla, Ajay Kumar Dwivedi, D.K. Jain, Anil Jain and Praveen Kumar Jain have been nominated as named accused, whereas an unknown person has also been arraigned as an accused.
The gravamen of the allegations made in the F.I.R. that Truck No. MH 40AK 8021 was carrying betel nuts. Aforesaid truck was intercepted by Mobile Squad of the Commercial Taxes Department as there was apprehension that the goods were so transported after evading the G.S.T. duty payable on the goods being transported. The F.I.R. further records that when the disputed truck was being taken to Kanpur for further action, named accused intercepted the same and thereafter took away the papers and the mobile phone of the Driver in their custody.
Subsequent to above, the disputed vehicle was also seized. Applicant Om Prakash, who is the registered owner of the seized truck i.e. MH 40AK 8021 and also the owner of the goods (betel nuts) filed a release application dated 28.4.2022 before Court below seeking release of the same. The release application filed by the applicant was opposed and an objection was filed. Applicant filed a rejoinder to the same. The police of concerned police station also submitted its report.
Additional Sessions Judge Court No. 5, Fatehpur, ultimately by means of order dated 29.6.2022 rejected the release application filed by applicant. Thus feeling aggrieved by above order dated 29.6.2022, applicant has now approached this Court by means of present application under Section 482 Cr. P. C.
Mr. V.P, Srivastava, the learned Senior counsel for applicant submits that order impugned in present application is manifestly illegal and without jurisdiction. Court below has rejected the release application filed by applicant without considering the fact that the disputed goods (betel nuts) are a perishable commodity. Furthermore, the truck of the applicant in which the disputed goods were being transported is lying in open at the police station, resulting in loss of value of the same. The detention of the truck and the disputed goods that were being transported is not absolutely necessary during the pendency of trial. He has then invited the attention of Court to the judgement of Supreme Court in Sunderbhai Amba Lal Desai Vs. State of Gujarat, (2002) 9 SCC, 283 in support of the submission that even the Apex Court has directed that the case property should be released except where the circumstances are exceptional. There is no exceptional circumstance in the present case warranting the detention of seized goods. Court below, while passing the impugned order has not adverted to the observations made by the Supreme Court in the case of Sunderbhai Amba Lal Desai (supra) and this has vitiated the order impugned.
Per contra, the learned A.G.A. has opposed the present application. With reference to the impugned order he submits that the disputed commodity was being transported in an illegal manner. No document could be placed by applicant before Court below regarding his
ownership of the disputed product (betel nuts), which were being transported in the truck of applicant i.e. MH 40AK 8021. The disputed goods were being transported without paying the requisite tax upon the same. Moreover, the proceedings under the G.S.T. Act are still pending. As such, no illegality has been committed by Court below in rejecting the release application filed by applicant.
In rejoinder, the learned Senior counsel for applicant has reiterated his earlier submission and submits that for the facts and reasons already pointed out, the release application filed by applicant ought to have been allowed. Court below has illegally and in an arbitrary manner rejected the release application filed by applicant. The seized goods i.e. truck No. MH 40AK 8021 as well as the betel nuts that were being transported by aforementioned truck should have been released in the light of observation made by the Apex Court in Sunderbhai Amba Lal Desai (supra). As no finding has been recorded by Court below in the impugned order in the light of above, the impugned order passed by Court below is liable to be set aside by this Court.
Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record as well as the judgement of Apex Court as noted herein above, the Court finds that the issue regarding the procedure to be followed by the Courts while exercising jurisdiction under Section 451 Cr. P. C. is no longer res-integra. The Apex Court in Sunderbhai Amba Lal Desai (supra) has observed as under in paragraph 10, 11, 12, 13, 14, 15, 16, 17:-
"10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes
11. With regard to valuable articles, such as golden or sliver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.
12. For this purposes, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchanama of such articles:
(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.
13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.
14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SIIO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed. Vehicles
15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.
16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.
17. 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.
From the perusal of the observations made by Court in
aforementioned judgement, it is apparent that Apex Court has now itself provided that the case property should be released unless the circumstances are so exceptional warranting its retention.
In the present case, except for the fact that proceedings under the G.S.T. Act are pending, no other exceptional circumstance has been pointed out by Court below. Court below has further recorded a finding that the ownership documents submitted by applicant Om Prakash have been found to be false and consequently, criminal prosecution has been drawn.
In the opinion of the Court, both the reasonings assigned by Court below are irrelevant for rejecting the release application filed by applicant. So far as the disputed truck is concerned, applicant is the registered owner of the truck. Therefore, there is no difficulty in releasing the same. With regard to the disputed product that was being transported (betel nuts), the same could have been released after taking adequate security. Court below has not examined aforesaid aspect of the matter.
In view of above, present application succeeds and is liable to be allowed.
It is, accordingly, allowed.
The impugned order dated dated 29.6.2022 passed by Additional Sessions Judge, Court No. 5, Fatehpur, in Criminal Misc. Case No. 138 of 2022 (State Vs. Anil Shukla and others), Sessions Trial No. 69 of 2022, arising out of Case Crime No. 161 of 2021, under Sections 323, 504, 332, 353, 395, 120B, 419, 420, 468, 412, 471 IPC, P.S. Kalyanpur, District Fatehpur, is hereby quashed.
Court below is directed to decide the release application filed by applicant afresh in the light of observations made herein above within a period of one month from the date of presentation of a certified copy of this order.
Order Date :- 10.1.2023 HSM
Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad
3 issues framed by the court
Whether the impugned order rejecting the release application for seized truck and goods be quashed under Section 482 Cr.P.C.
Whether the appellant should be directed to decide the release application afresh in light of Supreme Court observations.
Whether the reasons assigned by the court below for rejecting release were relevant.
Colour shows how this judgement treated each authority
Sunderbhai Amba Lal Desai Vs. State of GujaratExplained¶15
(2002) 9 SCC 283 · Who else cites this
2 provisions across 1 enactments
Om Prakash
State of U.P.
HARI SHANKER MISHRA
RAJEEV MISRA
As recorded by the court registry
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