Allowed

Nirmal Singh v. Ncb

Himachal Pradesh HC16 Sept 2024CRMMO/202/2024

Case brief

AI extract

What is this about?

Petitioner sought release of a seized vehicle involved in an NDPS case. The High Court held that vehicles should not remain in police custody pending trial, applying Section 451 CrPC precedence. Petitioner granted release subject to a bond.

What did the court decide?

Vehicle released to petitioner with key and documents subject to furnishing of sapurdari bond of Rs. 2,50,000/- and undertaking not to alter vehicle identity.

Nirmal Singh Vs Ncb — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8602 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No.202 of 2024 Reserved on: 13.08.2024 Date of Decision: 16.09.2024.

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Nirmal Singh ...Petitioner Versus Narcotics Control Bureau ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes

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For the Petitioner	:	Mr. Rakesh Kumar and Mr. Panku Chaudhary, Advocates.
For the Respondent	:	Mr. Ashwani Pathak, Sr. Advocate, with Mr. Dev Raj, Advocate.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for release of the vehicle bearing registration No. PB-13AD-2700 along with key and documents seized by the respondent in Crime Case No. 41/2021, dated 13.06.2021, registered for the commission of offences punishable under Sections 8, 20, 29 and 60 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’), at Mandi, District Mandi, H.P.

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Neutral Citation No. ( 2024:HHC:8602 )

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It has been asserted that the NCB official impounded

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the vehicle in Crime Case No.41/2021 from the possession of accused-Simranjeet Singh, who was driving the vehicle. The petitioner is the father of accused-Simranjeet Singh. The NCB has filed a charge sheet against accused-Simranjeet Singh and others, which is pending adjudication before learned Additional Sessions Judge-I, District Mandi, H.P. The accused persons have already been released on bail but the vehicle is still lying in the custody of NCB. The petitioner would abide by all the terms and conditions, which the Court may impose. The vehicle is losing its value due to rain, dust and other natural factors. The petitioner filed an application before learned Additional Sessions Judge, Sundernagar for releasing the vehicle but the application was dismissed vide order dated 20.07.2021. The petitioner again filed an application for release of the vehicle before the learned Trial Court but the same was withdrawn. Hence, the present petition.

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No reply was filed.

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I have heard Mr. Rakesh Kumar and Mr. Panku

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Chaudhary, learned counsel for the petitioner and Mr. Ashwani

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3 Neutral Citation No. ( 2024:HHC:8602 )

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Pathak, learned Senior counsel assisted by Mr. Dev Raj, learned counsel for the respondent.

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Mr. Rakesh Kumar, learned counsel for the petitioner submitted that the vehicle is losing its value in the custody of the respondent. The charge sheet has already been filed before the learned Trial Court and the vehicle is not required for investigation. No fruitful purpose would be served by detaining the vehicle in the custody of the NCB; hence, he prayed that the present petition be allowed and the vehicle be released in favour of the petitioner.

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Mr. Ashwani Pathak, learned Senior Counsel for the respondent submitted that the confiscation proceedings are contemplated against the vehicle. The main accused was found transporting the narcotics using the vehicle and the vehicle is liable to be confiscated to the State; hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Sunderbhai Ambalal Desai versus State of Gujarat (2002) 10 SCC

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4 Neutral Citation No. ( 2024:HHC:8602 )

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283 that the vehicles should not be kept in the police station as they are likely to lose their value. The courts should hand over the custody of the vehicle to a proper person. It was observed:

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“13. Learned senior counsel Mr Dholakia, appearing for the state of Gujarat further submitted that at present in the police station premises, a number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the magistrates who are dealing with such questions to hand over such vehicles to their owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the court at any point of time.

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However, the learned counsel appearing for the petitioners submitted that this question of handing over of vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

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In our view, whatever the situation, it is of no use to keep seized vehicles at the police stations for a long period. It is for the magistrate to pass appropriate orders immediately by taking appropriate bonds and guarantees as well as security for the return of the said vehicles if required at any point in time. This can be done pending a hearing of applications for the return of such vehicles.

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In the case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession the vehicles may be sold as per the direction of the court. The court would pass such an order within a period of six months

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5 Neutral Citation No. ( 2024:HHC:8602 )

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from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and a detailed panchnama should be prepared.”

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It was laid down by this Court in Narcotics Control

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Bureau vs. Sangeeta Bhardwaj 2021 Law Suit(HP) 701 that the vehicle used for the transportation of the narcotics is liable to be confiscated. However, until such proceedings are initiated, the vehicle should not be kept in police custody and an immediate order should be passed for the release of the vehicle. It was observed:

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“15. In para-20 of the aforesaid judgment, which is reproduced hereinabove, Hon'ble Apex Court has specifically held that for Narcotic drugs also procedure under Section 451 Cr. P.C. should be followed by recording evidence and disposal. It has been further held in the aforesaid judgment that no useful purpose would be served by keeping seized vehicles at the police station for a long period. It is for the Magistrate to pass the appropriate order immediately by taking personal bond and guarantee as well as security for the return of the said vehicle if required at any point in time.

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16 Co-Ordinate Bench of this Court in a case titled Ashok Kumar versus State of Himachal Pradesh, 2008 (2) ShimLC 452 while placing reliance upon the aforesaid judgment held that once the petitioner undertakes to produce the vehicle before the Court as and when required, prayer for the release of vehicle should be allowed. Hon'ble Apex Court in Rajendra Prasad vs. State of Bihar and another,

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6 Neutral Citation No. ( 2024:HHC:8602 )

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2001 (10) SCC 88 , has held that custody of the vehicle should be entrusted temporarily to its registered owner during the pendency of the trial. Their Lordships have held as under:-

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"We are not deciding the question as to the title of the vehicle in dispute nor the correctness of the rival versions regarding the transactions relating to the vehicle. We do not want the vehicle to remain in the compound of the police station exposed to heat and cold because the automobile is likely to be lost to all in such a situation. To avert this situation, we are inclined to entrust it temporarily to the appellant who is the ostensible nameholder in the registration certificate. The custody of the vehicle with the appellant will be on behalf of the court and this arrangement is only till the stage when the court passes the order regarding disposal of the property on conclusion of the trial".

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A similar view was taken by this Court in Narcotics

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Control Bureau vs. Munish Kumar Criminal Revision no.302/2021,

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decided on 29.12.2020 , wherein it was observed:

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“9. Careful perusal of judgment supra, which is based upon the various judgments passed by the Hon'ble Apex Court and other constitutional Courts, reveals that power under S. 451 CrPC while dealing with the issue of seized articles should be exercised expeditiously and judiciously since it would serve various purposes. It has been categorically held that no useful purpose would be served by keeping the seized vehicle at the Police Station for a long period and a vehicle can be ordered to be released by the magistrate by taking personal bond and security to return the vehicle if required at any point in time.”

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Thus, in view of the binding precedent of the Hon’ble

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Supreme Court and this Court, the release cannot be denied to

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Neutral Citation No. ( 2024:HHC:8602 )

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the applicant on the ground that the vehicle is liable to be confiscated; rather a duty has been cast upon the Court to immediately release the vehicle to the rightful owner until the question of confiscation of the vehicle is decided by the Competent Court.

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The learned Trial Court dismissed the application on the ground that NCB is contemplating the confiscation proceedings in respect of the vehicle. The matter was adjourned by this Court to enable the NCB to file the document showing that confiscation proceedings had been initiated, however, no such document was filed, even though more than three months were granted to the NCB to file such documents. Even otherwise, the pendency of the confiscation proceedings has nothing to do with the release of the vehicle as has been held by this Court and the vehicle can always be confiscated if an order of confiscation is passed by the Competent Court.

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Thus, the learned Trial Court erred in denying the release of the vehicle to the petitioner.

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Consequently, the present petition is allowed and the vehicle is ordered to be released to the petitioner along with

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8 Neutral Citation No. ( 2024:HHC:8602 )

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documents and keys subject to the furnishing of sapurdari bond in the sum of ₹2,50,000/- (Rupees Two Lacs Fifty Thousand only) undertaking to produce the vehicle as and when directed to do so, not to change the colour or identity of the vehicle to make it unrecognizable, not to use the vehicle for the commission of a similar offence, not to charge or encumber the vehicle during the trial. The sapurdari bond shall be furnished to the satisfaction of the learned Trial Court. The respondent shall take the photographs of the vehicle and shall retain the photocopies of the documents, which shall be counter-signed by the applicant, accused and the Investigating Officer.

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The observations made hereinabove are regarding the disposal of this petition and will have no bearings whatsoever with the merits of the case.

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( Rakesh Kainthla) Judge

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16^th September, 2024 (saurav pathania)

Nirmal Singh v. Ncb

Case brief

What is this about?

What did the court decide?

Nirmal Singh v. Ncb

Case brief

What is this about?

What did the court decide?

What the court decided

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