Allowed

Matloob Husain v. State of U.P.

Allahabad HC28 Nov 2024CRLR/2136/2024

Case brief

AI extract

What is this about?

This criminal revision allowed the release of a seized truck owned by the revisionist under the NDPS Act. The High Court set aside the impugned order dismissing the release application, directing the trial court to release the vehicle pending trial subject to a bond and sureties, citing Supreme Court precedent on vehicle custody.

What did the court decide?

Impugned order set aside; vehicle released to revisionist pending trial on personal bond and two sureties; trial court to incorporate Supreme Court conditions.

Matloob Husain vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2024)

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AFR

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Neutral Citation No. - 2024:AHC:190857

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Court No. - 86

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Case :- CRIMINAL REVISION No. - 2136 of 2024

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Revisionist :- Matloob Husain Opposite Party :- State of U.P. Counsel for Revisionist :- Janardan Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Ram Manohar Narayan Mishra,J.

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Instant Criminal Revision has been preferred against the order dated 10.4.2024 passed by Additional District and Session Judge, Court no. 6, Azamgarh in Criminal Misc. Case No. 01 of 2024 arising out of Case Crime No. 161 of 2023, under section 8/20 N.D.P.S. Act, P.S. Tarwan, District Azamgarh. By the impugned order trial court has dismissed the release application filed by the revisionist claiming himself as registered owner of truck bearing Registration No. U.P. 21-AN-5992. The said truck/ container has been seized by the police on 22.6.2023 under Section 8/20 N.D.P.S. Act on charges of carrying illicit Ganja of 20 Kg 500 gram quantity. The revisionist was arrested by police from the truck and said contraband and Rs. 3,52,000/- Cash were recovered from his possession. 2. Heard learned counsel for the revisionist, learned AGA for the State and perused the record.

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Learned counsel for the revisionist submitted that revisionist has been falsely implicated in the case. He is registered owner of the truck and which is only source of livelihood of the revisionist. The revisionist has already been released on bail in Case Crime No.161 of 2023, under Section 8/20 of Narcotic Drugs and Psychotropic Substance Act, Police Station Tarwa, District Azamgarh by this Court on 17.8.2023 in Criminal Misc. Bail Application No. 34627 of 2023 whereby revisionist has been released on bail in said offence on the ground that procedure prescribed in the Rule 10(1) of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 have been violated. The police has seized the truck of the revisionist and fraudulently framed case under Section 8/20 NDPS Act. There is no report regarding initiation or pendency of proceedings under sections 60 and 63 NDPS with regard to said contraband. The vehicle of the revisionist has been wrongly seized by the trial court without assigning any cogent

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reason and by cryptic manner impugned order has been passed which is not sustainable under law. The revisionist has no criminal history to his credit prior to alleged incident.

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It is further submitted that the vehicle was never used in transportation of illicit contraband under NDPS Act. The utility and serviceability of the vehicle is being rapidly deteriorated due to its parking at police station campus in unattended manner for such a long period and there is danger of its being rusted and inserviceable. He undertakes to maintain the character and colour of the vehicle if same is directed to be released in favour of the revisionist by the order of this Court. He undertakes to produce the vehicle on the direction of the Court on his own expenses. The revisionist has wrongly been made accused in the case and vehicle has been seized in violation of mandatory provisions of the act. The vehicle has not been confiscated as yet by the competent court in the NDPS, Act. Therefore, it is prayed that the vehicle may kindly be released in favour of the revisionist.

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Lastly, in support of his contention, learned counsel for the revisionist placed reliance on judgement of Hon'ble Supreme Court passed in Sunderbhai Ambalal Desai vs State of Gujarat reported in 2002 (10) SCC 283 and a judgement of this Court passed in Matter Under Article 227 No. 3077 of 2023 (Kanhaiya Yadav vs. State of U.P. and Another).

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Per contra learned A.G.A. opposed the prayer for release of the vehicle and submitted that no illegality or perversity in the impugned order passed by the trial court, by which release application filed by the applicant has been dismissed. It is further submitted that revisionist was arrested from the spot and from his possession 20 kg 500 gram Ganja which is above the commercial quantity, has been recovered. The revisionist is registered owner of the alleged vehicle.

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Section 20 NDPS Act provides punishment for contravention in relation to cannabis plant and cannabis which reads as under:-

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"20. Punishment for contravention in relation to cannabis plant and cannabis.-—

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Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--

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(a) cultivates any cannabis plant; or

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(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis,

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shall be punishable,--

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1[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

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(ii) where such contravention relates to sub-clause (b),--

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(A) and involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;

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(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

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(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

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Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

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8. Section 52A of NDPS Act , provides for Disposal of seized narcotic drugs and psychotropic substances, which may be reproduced as under:-

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"The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

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(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officerin-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such

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other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

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(a) certifying the correctness of the inventory so prepared; or

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(b) taking, in the presence of such magistrate, photographs of 4[such drugs, substances or conveyances and certifying such photographs as true; or

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(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.

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(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the innventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."

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9. Section 60 of the NDPS Act , provides for confiscation of the illicit drugs, substances, plants, articles and conveyances involved in an offence under the act, which reads as under:-

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" 60 Liability of illicit drugs, substances, plants, articles and conveyances to confiscation- [(1) Whenever any offence punishable under this Act has been committed, the narcotic drug, psychotropic substance, controlled substance, opium poppy, coca plant, cannabis plant, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation.]

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(2) Any narcotic drug or psychotropic substance or controlled substances] lawfully produced, imported inter-State, exported inter-State, imported into India, transported, manufactured, possessed, used, purchased or sold along with, or in addition to, any narcotic drug or psychotropic substance or controlled substances] which is liable to confiscation under sub-section (1) and the receptacles, packages and

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coverings in which any narcotic drug or psychotropic substance 2[or controlled substances], materials, apparatus or utensils liable to confiscation under sub-section (1) is found, and the other contents, if any, of such receptacles or packages shall likewise be liable to confiscation.

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(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance 2[or controlled substances], or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves 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 animal or conveyance and that each of them had taken all reasonable precautions against such use."

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Section 63 of the NDPS Act, provides for procedure and making confiscation, which reads as under:-

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"63. Procedure in making confiscations. —(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly.

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(2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly:

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Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance 5[controlled substance], the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale."

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Perusal of Section 63 provides that the question of confiscation of vehicle shall be decided by trial court, whether the accused is convicted or acquitted or discharge. In present case this is an admitted fact that trial is

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still pending and it is likely to take considerable time to come to its logical end. Hon'ble Ambika lal Desai considered section 451/457 Cr.P.C. which provides for disposal of case property seized by police and involved in an offence. Hon'ble Court held section 451 Cr.P.C. clearly empowers the court to pass appropriate orders with regard to such property:-

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for the proper custody pending conclusion inquiry or trial.

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

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if the property is subject to speedy and natural decay to dispose of the same.

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In paragraph nos. 7, 17 and 18, Hon'ble Court has observed as under:-

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"7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

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1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.

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2. Court or the police would not be required to keep the article in safe custody;

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3. 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

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4. 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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17. In our view, whatever be the situation, it is of no use to keep suchseized 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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18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles

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may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

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In the present case there is no report on record which could suggests that any proceeding for confiscation of said vehicle under Section 60 of the Act is pending before the competent authority, even there is no specific report that the competent authority has been moved by the police for confiscation of the vehicle. No useful purpose of law appears to be served by keeping the vehicle parked at police station in unattended position which is bound to cause deterioration in its value, utility and serviceability.

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Learned trial court has dismissed the application for release without considering all these issues mainly on the ground that vehicle has been seized under the provisions of NDPS Act. Learned trial court has not considered the judgment of the Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs State of Gujarat reported in 2002 (10) SCC 283 in which procedure for release of the vehicles which are seized by the police under some offence has been provided.

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The impugned order is not sustainable under law as it is vitiated by illegality. The vehicle is liable to be released in favour of the revisionist who is registered owner of the vehicle, subject to certain conditions.

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The impugned order is set-aside. The trial court is directed to release the vehicle in favour of the revisionist during pendency of trial after taking personal bond and two sureties each in the like amount to the satisfaction of the court concerned and take undertaking to produce the vehicle before the court or competent authority for confiscation as the case may be, as and when required. The trial court may also add certain other conditions for release of the vehicle as provided in judgment of Hon'ble Supreme Court Sunderbhai Ambalal Desai vs State of Gujarat (supra).

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The revision is allowed accordingly.

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Order Date :- 28.11.2024 SY

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Digitally signed by :- SUSHAMA YADAV High Court of Judicature at Allahabad

Matloob Husain v. State of U.P.

Case brief

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Matloob Husain v. State of U.P.

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