Shivkumar Jhariya Vs State of Chhattisgarh

The instant petition has been filed under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 by the petitioner assailing the order dated 08/11/2024 passed by the Special Judge (Under NDPS Act) Raigarh in Case under NDPS Act No.03/2024 whereby the learned Special Judge has ordered for confiscation of the vehicle having registration No. MP 20 GB 6418.

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Brief facts of the case are that, the petitioner is the owner of a Goods Carrier Pickup Bolero vehicle having registration no. MP 20 GB 6418,

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Digitally signed ASHUTOSH by ASHUTOSHMISHRA MISHRA Date:2025.02.06 14:16:52 +0530

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which was duly purchased by the petitioner and the petitioner is having all the necessary documents of the vehicle, which the petitioner had given on rent to one Sheshadev Bishwal for the transportation work and in return Sheshadev Bishwal paid monthly rent.

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It is the case of the petitioner that while the vehicle was given on rent by the petitioner, said Sheshadev Bishwal without the knowledge of the petitioner started transporting Ganja. On 21/10/2023 at around 12:40, the Police of Police Station Baramkela caught the Vehicle while checking and upon searching the vehicle, the Police seized 25 packets containing 1 Kg of Ganja each thus seized a total 25 Kgs of Ganja from the vehicle and arrested Sheshadev Bishwal. After arresting Sheshadev Bishwal, the police started investigating the matter and filed charge-sheet against Sheshadev Bishwal and Manoj Kumar Mehra and thereafter vide Judgment dated 08/11/2024, the Special Judge (Under NDPS Act), Raigarh (C.G.) in Case Under NDPS Act No.03/2024, convicted Sheshadev Bishwal for commission of offence punishable under Section 20 (b) (II) (c) of the N.D.P.S. Act, 1985 with imprisonment for 10 years Rigorous Imprisonment. At the time of convicting Sheshadev Bishwal, the learned Special Judge also passed the order for confiscating the vehicle having registration no. MP 20 GB 6418 and by the impugned Judgment dated 08/11/2024, the order for confiscation has been passed.

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Learned counsel for the petitioner would submit that the impugned order of confiscation has been passed without affording opportunity of hearing to the petitioner and no reason for confiscation has been assigned. He would lastly contend that the impugned order may be set aside and the

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Goods Carrier Pickup Bolero vehicle having registration no. MP 20 GB 6418 of the petitioner may be released on Supurdnama.

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On the other hand, learned State Counsel would oppose the prayer made by the counsel for the applicant.

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I have heard learned counsel for the parties and perused the documents with utmost circumspection.

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The Supreme Court in the case of Sunderbhai Ambalal Desai Vs.State of Gujarat , reported in (2002) 10 SCC 283, in para 7 and 17 has laid down guiding principles for releasing the vehicle seized by police. For ready reference, the relevant portion is reproduced below:-

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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 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 proper panchnama before handing over possession of the article is prepare, 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 property in detail;

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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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17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police station 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.

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This can be done pending hearing of applications for return of such vehicles.”

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Similar stand has also been taken by the Supreme Court in the case of Multani Hanifbhai Kalubhai Vs. State of Gujarat & Another , reported in 2013 (3) SCC 240, wherein the Supreme Court has expressed that it is not advisable to keep the seized vehicle in the Police Station in open condition which is prone to natural decay on account of weather conditions for a long period.

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In the instant case, it is submitted by learned counsel for the petitioners that no useful purpose would be served if the vehicle is allowed to get exposed in the extreme weather conditions in the Police Station, rather the vehicles can be released to the petitioner, who is claiming himslef to be the owner of the vehicle. It is also pertinent to mention here that in this case it is found that the vehicle is left for natural decay for a long period of time and no substantive action has been taken and the vehicle is still left for irreparable damages.

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Therefore, considering the facts and circumstances of the case in light of the decisions rendered by the Hon’ble Supreme Court in the matters of Sunderbhai Ambalal Desai (supra) and Multani Hanifbhai Kalubhai

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(supra), the instant petition is allowed and the order dated 08/11/2024 passed by the Court below is hereby set-aside. It is directed that the Vehicle bearing registration No. MP 20 GB 6418, therefore, the vehicle be released in favour of the petitioner, as interim custody on the following conditio ns:-

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(i) Before release of the vehicle, the documents pertaining to ownership of the said vehicle be verified and proper Panchnama of the vehicles be made.

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(ii) Photographs of the vehicles should be taken and bond should also be produced that the vehicles would be produced as and when required.

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(iii) Proper security i.e. personal bond of Rs.10,00,000/- (Ten Lakhs) and equivalent surety be obtained before release of vehicle.

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With the aforesaid observations/directions, the petitioner is allowed.

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SD/-

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(Arvind Kumar Verma) JUDGE

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ashu

Shivkumar Jhariya v. State of Chhattisgarh

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Shivkumar Jhariya v. State of Chhattisgarh

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