Allowed

Rayudu Naresh v. the State of Andhra Pradesh

Andhra Pradesh HC3 Dec 2021CRLRC/793/2021

Case brief

AI extract

What is this about?

The Special Court allowed a criminal revision, holding that an owner has a prima facie right to interim custody of a seized vehicle under the NDPS Act. The impugned order denying such custody was set aside, and the petitioner was granted custody subject to a performance bond.

What did the court decide?

The order dated 23.10.2021 denying custody was set aside and the petitioner was granted interim custody of the Activa 125 motorcycle conditioned on executing a bond.

Rayudu Naresh Vs the State of Andhra Pradesh — Narcotics (NDPS) | Andhra Pradesh HC (2021)

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THE HONOURABLE SRI JUSTICE D.RAMESH CRIMINAL REVISION CASE NO.793 OF 2021

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ORDER:-

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This criminal revision case is filed under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to set aside the order dated 23.10.2021 in Crl.M.P.No.409 of 2021 in Crime No.282 of 2021 of Anakapalli Town Police Station, Visakhapatnam passed by the learned Metropolitan Sessions Judge-cum-I Additional District and Sessions Judge, Special Judge for Trial of Offences under NDPS Act, Visakhapatnam and consequently release the vehicle i.e. Activa 125 Drum Alloy motorcycle bearing registration No.AP 39 GU 2466.

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The case of the petitioner in brief is: The subject vehicle was seized by the police in connection with crime No.282 of 2021 registered for the offence punishable under Section 8(c) r/w 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). Pursuant to the seizure of the vehicle, the petitioner approached the Court below seeking interim custody of the subject vehicle by filing a petition under Section 457 Cr.P.C, but the same was dismissed. Aggrieved by the same, the petitioner is before this Court.

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Heard learned counsel for the petitioner and learned Assistant Public Prosecutor for the respondent-State.

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Learned counsel for the petitioner submits that petitioner is owner of the subject vehicle and he is no way connected with the alleged crime. He also submits that the accused took the vehicle

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on hire basis and the involvement of said vehicle in transportation of ganja is not within the knowledge of petitioner. Further, if the vehicle is kept idle for long period, the same will become useless.

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The further submission of learned counsel for petitioner is that even if a vehicle is seized under NDPS Act for transporting narcotic goods, the owner is entitled for interim custody of the vehicle and this Court has granted interim custody of the vehicles in similar cases. Hence, this petition may be allowed.

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While passing the order impugned the Court below has observed that Section 60 of the NDPS Act also connotes that the Narcotic Drug and conveyance used for carrying the same shall be confiscated to the State, if the offence is proved.

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It was further observed by the Court below that the subject vehicle was used for transportation of ganja and the contraband was seized under a cover of mediators report as per the provisions of the NDPS Act and hence, the petitioner is not entitled for interim custody of the vehicle.

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It is appropriate to extract Section 457 of Cr.P.C which reads thus:

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457. Procedure by police upon seizure of property .

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(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

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(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto,

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to appear before him and establish his claim within six months from the date of such proclamation.

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As per Section 457 of Cr.P.C., if the person is known and when there is no dispute about the ownership of the vehicle, the Magistrate may order delivery of the property to him on such conditions as the Magistrate thinks fit.

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There is no dispute with regard to the petitioner’s ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus:

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“(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: 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, 1[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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From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only

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at the time of convicting, acquitting or discharging the accused. But there is no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is every likelihood of the vehicle getting destroyed.

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Taking into consideration the submissions made by learned counsel for the petitioner and in view of the settled law this Court feels it appropriate to grant interim custody of the vehicle to petitioner by imposing certain conditions.

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Accordingly the criminal revision case is allowed and the order dated 23.10.2021 in Crl.M.P.No.409 of 2021 in Crime No.282 of 2021 of Anakapalli Town Police Station, Visakhapatnam District, passed by the learned Metropolitan Sessions Judge-cum-I Additional District and Sessions Judge, Special Judge for Trial of Offences under NDPS Act, Visakhapatnam, is set aside. The vehicle i.e. Activa 125 Drum Alloy motorcycle bearing registration No.AP 39 GU 2466 is ordered to be given interim custody to the petitioner on condition of his executing a bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) with one surety for a likesum to the satisfaction of the Special Judge for Trial of Cases under NDPS Act –Cum- I Additional Sessions Judge, Visakhapatnam. It is further directed that the petitioner shall not alienate the vehicle, shall not change its physical features or create any encumbrance or change on the same.

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As a sequel, all the pending miscellaneous applications are

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closed.

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_____________________ JUSTICE D.RAMESH

Date :03.12.2021 KA

THE HONOURABLE SRI JUSTICE D.RAMESH

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CRIMINAL PETITION No.6829 of 2021

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03.12.2021

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IKN

Rayudu Naresh v. the State of Andhra Pradesh

Case brief

What is this about?

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Rayudu Naresh v. the State of Andhra Pradesh

Case brief

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