Allowed

Laxman Gain v. State of Chhattisgarh

Chhattisgarh HC12 Apr 2022CRR/364/2022

Case brief

AI extract

What is this about?

The High Court allowed the application seeking interim custody of seized vehicles and a mobile phone. The Court set aside the Special Court’s order rejecting the plea, holding that Section 60 NDPS Act does not preclude interim custody under Section 451 Cr.P.C. to prevent deterioration of seized articles pending seizure trials.

What did the court decide?

The Special Court order was set aside; the matter remitted to the Special Judge (NDPS) to decide on interim custody within 10 days.

Laxman Gain Vs State of Chhattisgarh — Narcotics (NDPS) | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No. 364 of 2022

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•Laxman Gain S/o Late Sudhansu Gain, Aged About 35 Years R/o GRP Chowk, Balod, District Balod (C.G.)

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---- Petitioner/Applicant

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Versus

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State Of Chhattisgarh Through Police Station City Kotwali, District Raipur (C.G.)

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---- Respondent

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For Petitioner :Shri Vivek Mishra, Advocate For Respondent/State :Smt. Usha Chandrakar, P.L.

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Hon'ble Shri Justice Sanjay S. Agrawal

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Order on Board

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12.04.2022

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By way of this petition, the petitioner is questioning the legality and propriety of the orders dated 31.07.2021 (Annexure A/1) and the order dated 16.03.2022 (Annexure A/2) whereby the learned Special Judge NDPS, Raipur (for short, the Special Court) has rejected the application filed by the petitioner under Section 451 of the Code of Criminal Procedure, 1973 (henceforth, the Cr.P.C.) for grant of interim custody of the vehicle, i.e., Hyundai Verna Car as well as one Mobile OPPO CPS Phone bearing its IMEI No. 86963704839572.

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The petitioner is the registered owner of the Hyundai Verna Car bearing registration No. CG-04-HQ-1011 as well as that of the Mobile Phone Model OPPO CPS bearing IMEI No.86963704839572, which were found to be seized by the Police of Police Station, City Kotwali, Raipur in connection with Crime No. 255/2020 for the commission of offence punishable under Sections 22 (c), 25, 27 and 29 of the Narcotic Drugs and Psychotropic

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Substances Act, 1985 (hereinafter referred to as the NDPS Act). Being the owner of those articles, the petitioner moved an application as per the provisions prescribed under Section 451 of Cr.P.C before the learned Special Judge under the NDPS Act, Raipur, District Raipur in Special Criminal Trial No. 98/2020 seeking interim custody of the same, The application so made was rejected by the concerned Court below by observing, inter alia, that since the proceedings of confiscation of those articles are required to be made under Section 60 (3) of NDPS Act, therefore, the petitioner is not entitled to get those articles on Supurdunama under the said provision.

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Learned counsel appearing for the petitioner submits that though the alleged articles seized under the said offence are liable to be confiscated under Section 60 of the NDPS Act, but merely on the ground that the confiscation proceedings of those articles are to be made, it cannot be held that the petitioner is not entitled to get those articles on interim custody. It is contended further that if the seized articles are not provided to him, then in the said event, the condition of those articles would be deteriorated in possession of the police custody and for its safety, the interim custody of it could be granted under certain terms and conditions in the light of the principles laid down by the Supreme Court in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283.

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On the other hand, learned counsel appearing for the State, while opposing the said application, submits that since the confiscation proceedings of those seized articles are to be made as per the provision prescribed under Section 60 of the NDPS Act, therefore, the application as made by the petitioner under Section 451 of Cr.P.C. has rightly been rejected by the Court below.

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I have heard learned counsel for the parties and perused the entire papers annexed with the petition carefully.

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From perusal of the record, it appears that the alleged articles were seized from the possession of the petitioner in connection with Crime No. 255/2020 for the offence punishable under Sections 22 (c), 25, 27 and 29 of the NDPS Act and the confiscation proceedings under Section 60 of the NDPS Act is, therefore, required to be made. However, a bare perusal of the said provision would show that it nowhere provides for its confiscation immediately upon its seizure. Confiscation procedure is altogether a separate procedure and is unconnected with the conviction, acquittal or discharge of the accused in view of the provision prescribed under Section 63 of the NDPS Act. In view of the procedure prescribed therein, the articles so seized cannot be permitted to remain in possession of police custody till the completion of it, else the condition of it would be deteriorated and, therefore, the interim custody of it could be provided to the petitioner while imposing certain terms and conditions upon him in the light of the parameters laid down by the Supreme Court in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat (supra) wherein it has been held at paragraphs 7, 17 and 21 as under :-

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“ 7. In our view, the powers under Section 451 CrPC 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

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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 panchnama before handing over possession of the 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 property 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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xxxx xxxx xxxx xxxx xxxx

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17. In our view, whatever be the situation, it is of no use to keep such seized 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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21. However, these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month...........”

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Applying the aforesaid principles to the case in hand, the orders impugned (Annexure A/1 and Annexure A/2) rejecting the application filed by the petitioner under Section 451 of the Cr.P.C. cannot be held to be sustainable in the eye of law. The impugned orders (Annexure A/1 and Annexure A/2) passed by the learned Special Court under NDPS Act are accordingly set aside. Since it is the case of the petitioner that he is the registered owner of the said vehicle as well as that of Mobile phone and they were being used in the commission of alleged offence punishable under Sections 22 (c), 25, 27 and 29 of NDPS Act and he is said to have given the same to the accused for its lawful purpose, but the accused has used it for the commission of alleged offence, therefore, the petitioner is entitled for interim custody of those articles seized from him by the Police of Police Station City Kotwali, Raipur.

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In view of above, the matter is remitted to the Special Judge (NDPS) to pass order on the interim custody of those articles owned by the petitioner within 10 days from the date of production of certified copy of this order as per the decision of the Supreme Court in the matter of Sunderbhai Ambalal Desai (supra). The Special Judge (NDPS) may impose certain reasonable

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conditions for the ultimate production of those articles during trial.

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Accordingly, the petition is allowed to the extent indicated herein above.

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Sd/-

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( Sanjay S. Agrawal) Judge

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Anjani

Laxman Gain v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Laxman Gain v. State of Chhattisgarh

Case brief

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