Allowed

Sarvesh Kumar v. State of Up and Another

Allahabad HC30 Jul 2024CRLR/2997/2024

Case brief

AI extract

What is this about?

The High Court allowed the revision and set aside the order dismissing the application for release of a vehicle seized in an NDPS case. The Court held that keeping the vehicle detained without confiscation proceedings causes deterioration in value and utility. It directed the release of the vehicle subject to conditions.

What did the court decide?

Revision allowed; impugned order set aside; vehicle directed to be released to the registered owner subject to surety bonds and conditions.

Sarvesh Kumar vs State of Up and Another — Narcotics (NDPS) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:189948

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Court No. - 86

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Case :- CRIMINAL REVISION No. - 2997 of 2024

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Revisionist :- Sarvesh Kumar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Abhishek Trivedi Counsel for Opposite Party :- G.A.

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Hon'ble Ram Manohar Narayan Mishra,J.

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Counter affidavit filed by learned AGA is taken on record.

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Heard learned counsel for the revisionist, learned A.G.A. for the State-respondent and perused the material available on record.

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3. The instant criminal revision has been preferred by the revisionist against the impugned order dated 16.5.2024, passed by learned Additional Sessions Judge, Court No.9, Shahjahanpur, in Misc. Criminal Case No.241 of 2024 (Sarvesh Kuamr vs. State of U.P.), arising out of Case Crime No.33 of 2024, under Section 8/18 of NDPS Act, Police Station Jalalabad, District Shahjahanpur, whereby the Sessions Judge has dismissed the second release application moved by the revisionist for release of the car bearing Registration No.U.P. 27 AU/0803, Engine No.G4LKM382433, Chasis No.MALB551CLKM010891.

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The prosecution case in brief is that on 11.1.2024, at around 22:30 hours, police team headed by Inspector Ravi Shanker Yadav of Police Station Jalalabad, District Shahjahanpur, laid an ambush near Kola Pull, on the basis of secret information and intercepted a car, in which two persons were travelling. On interrogation, they confessed that they were possessing opium. Two suspects were given option under Section 50 of NDPS Act to get themselves searched in presence of a Gazetted Officer or Magistrate and a consent paper was prepared in this regard. The suspects were searched in presence of Circle Police Officer and on personal search of Sarvesh Kumar, two bundles of opium carrying 1 kg opium each were recovered. Car was also registered in the name of Sarvesh Kumar, who was driving the car at the time of interception. On personal search of other suspect Makhan Paswan, 2 kgs illicit opium was recovered. The accused persons were arrested for charge under Section 8/18 of NDPS Act and the

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vehicle was seized by the police as it was found to be involved in commission of offence under Section 8/18 of NDPS Act. The revisionist/accused was enlarged on bail vide order dated 15.2.2024, passed by learned trial judge. The accused/revisionist filed an application for release of the vehicle seized in the offence on 4.4.2024, which was dismissed by learned Additional Session Judge. Another release application was filed by the revisionist, subsequently, which has been dismissed by the impugned order.

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Learned counsel for the revisionist submitted that this fact is not disputed that the revisionist is registered owner of the vehicle. Learned trial court has not followed the dictum of Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283, wherein proper guidelines were issued for release of the vehicle which are seized on charge of being involved in commission of an offence. Learned trial court has dismissed the application in cursory and cavalier manner without considering the judgement of Apex Court and issue involved in the matter. The utility, serviceability and value of the vehicle is deteriorating day by day on account of its being parked in unattended situation in campus of the police. No useful purpose of law will be served by detaining the vehicle till conclusion of the trial, inasmuch as no confiscation proceeding are reported to have commenced in respect of said vehicle. Learned trial court has not considered of these factual aspects while dismissing the application for release of the vehicle.

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Per contra, learned AGA submitted that the revisionist and coaccused were arrested by travelling in said car and from their personal search two kgs opium seized from each of them, which is an offence under Section 8/18 of NDPS Act. The said vehicle is liable to be confiscated under provisions of NDPS Act. Learned AGA also submitted that apart from this case, a case under Sections 498-A, 323 IPC and 3/4 of DP Act is also pending against the revisionist, which is shown in counter affidavit.

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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 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:

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Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance [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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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

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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 vehicle 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 which 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 revision is allowed accordingly and the impugned order is set-aside.

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Learned Session Judge is directed to release the vehicle in favour of the revisionist after taking adequate surety bonds to his/her satisfaction in favour of the registered owner of the vehicle, which he undertakes to produce before the court or competent authority for confiscation as the case may be, as and when required. The court below 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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Order Date :- 4.12.2024 Kamarjahan

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Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad

Sarvesh Kumar v. State of Up and Another

Case brief

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Sarvesh Kumar v. State of Up and Another

Case brief

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