Allowed

Akhilesh Sahani v. State of U.P. and Another

Allahabad HC12 Nov 2024CRLR/3498/2024

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a criminal revision against an order dismissing the revisionist's application for the release of a seized motorcycle. The court held the impugned order was unsustainable, directing the Special Judge to release the vehicle with conditions and an undertaking to produce it for confiscation proceedings.

What did the court decide?

The impugned order was set aside. The Special Judge was directed to release the motorcycle in favor of the revisionist subject to undertaking conditions and reporting to the competent authority for co

Akhilesh Sahani vs State of U.P. and Another — Narcotics (NDPS) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:185868

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Court No. - 86

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Case :- CRIMINAL REVISION No. - 3498 of 2024 Revisionist :- Akhilesh Sahani Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Akash Kumar Verma Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.

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Instant Criminal Revision has been preferred against the order dated 23.02.2024 passed by learned Additional Session Judge, Court No.1, Maharajganj in Special Session Case No.608 of 2023, arising out of Case Crime No.103 of 2023, under Section 8/21/23 of Narcotic Drugs and Psychotropic Substance Act, Police Station Koilhui, District Maharajganj.

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

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Learned Additional Session Judge has dismissed the application for release of vehicle (motor bike) bearing Registration No.UP55Y7596 in favour of the applicant/revisionist on the ground that same was used in transportation of prohibited drugs and the applicant could not establish that the vehicle was not used in transportation of prohibited drugs without his knowledge.

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Learned counsel for the revisionist submitted that applicant is the vehicle owner which has been wrongly seized by the police of District Maharajganj. The applicant has already been released on bail in Case Crime No.103 of 2023, under Section 8/21/23 of Narcotic Drugs and Psychotropic Substance Act, Police Station Koilhui, District Maharajganj by this Court on 27.09.2023 in Criminal Misc. Bail Application No.28982 of 2023. 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 under takes to maintain the character and colour of the vehicle if same is directed to be released in favour of the applicant by the order of this Court. He under takes to produce the vehicle on the direction of the Court on his own expenses. The applicant 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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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. The sample of the drugs recovered from the vehicle are sent to FSL for chemical analysis by government analyst. However in the district no other case is registered against the revisionist as per report of Incharge DCRB Maharajganj. 20 phial of prohibited PROXYCO.SPAS consists of 480 tablets were recovered from personal search of the applicant Akhilesh Sahani and 720 tablets of same were recovered from the possession of co-accused Arvind Jaiswal. The accused persons were riding a motorcycle for which release has been sought by the applicant.

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Complicity of another accused Rajesh Jaiswal could not be established during investigation. Therefore the applicant and coaccused Arvind Jaiswal who were arrested on the spot and the applicant has filed an application for the release of the vehicle in his favour. As per report of chemical analysis the sample referred for analysis is found to be of standard quality as defined in the Drugs and Cosmetics Act, 1940 thereunder which is PROXYXO.SPAS.

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Learned Trial Court has dismissed the application for release of the vehicle on the ground that from the said motorcycle 480 tablets of PROXYCO.SPAS drugs were recovered which were kept in a polythene bag which was handing on handle of the vehicle, the same was kept by accused-applicant Akhilesh Sahani and 720 tablets were recovered from plastic bag being carried by coaccused Arvind Jaiswal.

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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

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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 officer-in-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 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 subsection (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 sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."

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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,

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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 subsection (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 personin-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 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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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 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 impugned order is set-aside. Learned Special 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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The revision is allowed accordingly.

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Order Date :- 26.11.2024 Ashish/-

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Digitally signed by :- ASHISH KUMAR SINGH High Court of Judicature at Allahabad

Akhilesh Sahani v. State of U.P. and Another

Case brief

What is this about?

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Akhilesh Sahani v. State of U.P. and Another

Case brief

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