Allowed

Azij Khan v. State of Chhattisgarh

Chhattisgarh HC12 Apr 2022CRR/69/2021

Case brief

AI extract

What is this about?

The Chhattisgarh High Court set aside an order denying interim custody of a seized motorcycle to its registered owner. Relying on Supreme Court principles, the court held that long-term police retention risks deterioration and validated the owner's claim under Section 451 CrPC.

What did the court decide?

Impugned order setting aside; matter remitted to Special Judge to pass order on interim custody within 10 days.

Azij Khan Vs State of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No.69 of 2021

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Azij Khan S/o Samad Khan Aged About 54 Years R/o Village Hariganwa, (Mangarharpara), P.S. Raghunathnagar, Distt.- Balrampur-Ramanujganj, Chhattisgarh, District : Balrampur, Chhattisgarh

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---- Applicant

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Versus

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State Of Chhattisgarh Through- Station House Officer, P.S. Raghunathnagar, Distt.- Balrampur-Ramanujganj, Chhattisgarh, District : Balrampur, Chhattisgarh

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---- Non-applicant

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Present:-

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Shri Arun Kumar Shukla, counsel for the applicant. Shri Raghvendra Verma, G.A. for the State.

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Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal Order On Board

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12/04/2022

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This petition under Section 397 read with Section 401 of the Cr.P.C. is directed against the order dated 08-12-2020 passed by the learned Special Judge (NDPS), Balrampur, Place-Ramanujganj, in Special Sessions (NDPS) Case No.09 of 2020, whereby the petitioner’s application filed under Section 451 of the Cr.P.C. for grant of interim custody of the vehicle seized in connection with commission of offence punishable under Section 20(B) of the Narcotics Drug and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”), has been rejected.

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In connection with Crime No.71/2020 registered at Police Station Raghunathnagar, District Balrampur-Ramanujganj, an offence punishable under Section 20(B) of the NDPS Act has been registered against the petitioner’s son namely Sahid and one Anup, as based upon the secret information, it was found that they were carrying contraband article “ganja” about 800 grams while using

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the vehicle in question, i.e. Motorcycle, Honda Dream Neo bearing Registration No.C.G.-15-CS-7570, which is owned by the present petitioner. Since the vehicle in question owned by the petitioner, was seized by the concerned police station, therefore, being the owner of it, he moved an application for its interim custody as per the provisions prescribed under Section 451 of the Cr.P.C. The said application has been rejected by the Court below vide order impugned dated 08-12-2020 by observing inter alia that since the proceeding for confiscation of the alleged vehicle is required to be made under Section 60 of the NDPS Act, therefore, the petitioner is not entitled to get the interim custody of it. In view of the said observation, the application has been rejected by the concerned Court below.

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Learned counsel appearing for the petitioner submits that though the vehicle in question is liable to be confiscated under Section 60 of the NDPS Act, but, merely on the ground that it was required to be confiscated under the said provision, the petitioner cannot be denied for interim custody of the same. It is contended further that if the vehicle in question is allowed to be remain in possession of the Police Station till the trial is completed, then in the said event, the condition of it would be deteriorated, and therefore, for its safety, it could be provided to the petitioner while imposing certain terms and conditions upon him 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 proceedings for confiscation of the vehicle in question is required to be made under Section 60 of the NDPS Act and therefore, the Court below, while taking note of the said provision, has not committed any illegality in rejecting the said application seeking grant of interim custody of the same.

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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 vehicle in question owned by the petitioner was found to be involved in carrying contraband article, which was recovered from his son namely Sahid and other co-accused namely Anup. Though, the vehicle in question was seized in connection with the alleged crime, registered as Crime No.71 of 2020 for the offence punishable under Section 20(B) of the NDPS Act against the petitioner’s son, but, merely on the ground that the vehicle in question is liable to be confiscated under Section 60 of the NDPS Act, it cannot be said that once the vehicle is seized for commission of offence under the NDPS Act, interim custody of it cannot be granted to the petitioner as procedure for its confiscation under Section 63 of the NDPS Act, will take considerable time. As such, the vehicle in question seized in connection with the alleged crime cannot be permitted to be remain in possession of the Police Station, as in the said event, its condition would be deteriorated. Therefore, the interim custody of the vehicle in question could be provided to the petitioner while imposing certain terms and conditions upon him in the light of the principles laid down

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by the Supreme Court in the matter of Sunderbhai Ambalal Desai (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

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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

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vehicles.”

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xxxx xxxx xxxx xxxx xxxx

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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 order impugned 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 order impugned passed by the Special Judge under the NDPS Act is accordingly set aside.

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Since, it is the case of the petitioner that he is the registered owner of the vehicle in question and it was being used in commission of offence under Section 20(B) of the NDPS Act and he is said to have given the said vehicle 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 the vehicle in question.

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In view of above, the matter is remitted to the learned Special Judge (NDPS) to pass order on the interim custody of the vehicle in question owned by the petitioner within 10 days from the date of production of the 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 conditions for the ultimate production of the vehicle in question during trial.

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

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SD/(Sanjay S. Agrawal) Judge

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Tumane

Azij Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Azij Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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