Allowed

Mukesh v. State of U.P.

Allahabad HC13 Nov 2024CRLR/3511/2024

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision challenging the dismissal of an application for the release of a seized vehicle in an NDPS case. The Court held that keeping the vehicle at the police station without pending confiscation proceedings causes depreciation of value. Citing Sunderbhai Ambalal Desai, the Court set aside the impugned order and directed the release of the vehicle on surety bonds

What did the court decide?

Revision allowed; impugned order set aside; vehicle released to revisionist on surety bonds.

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

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Neutral Citation No. - 2024:AHC:178343

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Court No. - 86

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Case :- CRIMINAL REVISION No. - 3511 of 2024

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Revisionist :- Mukesh Opposite Party :- State of U.P. Counsel for Revisionist :- Ritesh Singh,Suresh Singh 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 judgment and order dated 21.10.2023 passed by Additional District and Session Judge, Shahjahanpur in Criminal Misc. Case No. 914 of 2023 arising out of Case Crime No. 386 of 2023 under sections 8/18 of N.D.P.S. Act, P.S. Katra, District Shahjahanpur whereby learned trial court has dismissed the application for release of vehicle no. UP 25CY 5042 of the revisionist.

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Heard learned counsel for the revisionist, learned AGA for the State and perused the material available on record.

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Learned counsel for the revisionist submitted that this is not disputed that the revisionist is registered owner of the alleged motorcycle which has been seized in the offence. The revisionist has also been granted bail by the Additional District and Session Judge, Shahjahanpur in First Bail Application No. 2728 of 2023, under section 8/18 NDPS Act on 19.9.2023. The copy of the said bail order has been filed as Annexure no. 2 of the revision. However, the application for release of vehicle was dismissed by learned trial court vide impugned order. It is next submitted that in fact the applicant and his friends, who were co-accused, were going for taking a bath at river Ganga at Ghatiya Ghat, Farrukhabad and during the checking some hot talk took place between applicant and the informant and he was arrested by police and implicated in this case. The applicant is no where connected with work of drugs supply. The vehicle is lying in unattended condition in premises of police station and its utility and value is being depreciated day by day. Learned trial court dismissed the application merely on the ground that vehicle is involved in the case under section 8/18 NDPS Act. There is provision of confiscation of vehicle under section 60/60(3) NDPS Act. Learned trial court has dismissed the prayer for release of the vehicle without considering relevant case law and material available on

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record. The applicant did not have any criminal antecedent apart from the present case.

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Learned AGA submitted that there is no illegality and perversity in the impugned order passed by the trial court as there is specific provision of confiscation of vehicle under section 60 /60(3) of NDPS Act and accused cannot take a ground that he was not aware with the fact that some contraband was kept in the vehicle as he himself made accused and arrested on the spot along with coaccused persons.

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5. 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 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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6. 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 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

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(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: 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.

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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 :- 13.11.2024/SY

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

Mukesh v. State of U.P.

Case brief

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Mukesh v. State of U.P.

Case brief

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