Quashed

Kanhai Yadav v. the State of Jharkhand

Jharkhand HC10 Aug 2021Cr.Rev./535/2020

Case brief

AI extract

What is this about?

In a criminal revision, the High Court quashed an order refusing to release a motor vehicle under Section 451 Cr.P.C. The Court directed the lower court to pass an appropriate order for release within two weeks, ensuring proper panchnama, bonds, and security.

What did the court decide?

Quashed impugned order dated 25.02.2020; remitted to concerned court to release vehicle under Section 451 Cr.P.C. within two weeks with proper bonds.

Kanhai Yadav Vs the State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No.535 of 2020

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Kanhai Yadav … … Petitioner Versus The State of Jharkhand … … Opposite Party

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CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR

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--- For the Petitioner : Mr. Abhay Shankar Dayal, Adv. For the State : Mr. Ravi Prakash, Spl.P.P.

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The matter was taken up through Video Conferencing. Learned counsel for the parties had no objections with it and submitted that the audio and video qualities are good.

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06/10.08.2021: Heard the learned counsel for the parties.

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2. The present revision application has been filed for setting aside the order dated 25.02.2020 passed by the learned Sessions Judge-cum-Special Judge (NDPS), Chatra in Miscellaneous Criminal Application No.989 of 2019 in connection with N.D.P.S Case No.114 of 2019 arising out of Chatra Sadar P.S. Case No.274 of 2019, whereby the Motor Cycle (CB 125 Shine SP) bearing registration No.JH-13F-4337, Chasis No. ME4JC73ADKG000892, Engine No. JC73EG0001734, has not been released in favour of the owner of the vehicle.

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3. It has been submitted by the learned counsel for the petitioner that the investigation is complete and the petitioner is the owner of the Motor Cycle which has been allegedly used in the commission of crime under N.D.P.S. Act. It has been further submitted that the court below has rejected the prayer for releasing the said vehicle only on the ground that the vehicle has been used in the commission of crime, and it cannot be the reason for rejection of the same. The petitioner is the owner of the vehicle and he is ready to abide by any condition imposed by the court.

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4. Counsel for the State has opposed the prayer and has relied upon the unreported judgment of Hon’ble Supreme Court in the case of Union of India Vs. Dinesh Kumar Verma in Criminal Appeal No.555 of 2005.

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5. Having heard the learned counsel for the parties and from perusal of the records, it appears that the vehicle in question, has been used in transportation of narcotics substance for which the present case has been lodged. It is settled principle of law that tools or any property used in the commission of crime are not punished rather the owner is punished by confiscating the tools or properties. Section 451 of the Cr.P.C. deals with the interim release of the mudammal articles or the property which has been used for the commission of

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any offence. The purpose of the section is interim in nature and it has to be applied only during pendency of the trial. Pendency of the trial cannot be a ground for the rejection of release of the vehicle. The judgment of the Hon’ble Apex Court relied upon by the learned Spl.P.P. is under Article 142 of the Constitution f India.

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Further, the Hon’ble Apex Court in judgment reported in 2002 (10) SCC 283 in the case of Sunderbhai Ambalal Desai v. State of Gujarat, has dealt with the mudammal and property, and specifically directed that the power under Section 451 of the Cr.P.C. should be exercised promptly by the concerned Magistrate. The relevant portion of the said judgment is quoted hereinbelow:-

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" 5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as:

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( 1 ) for the proper custody pending conclusion of the inquiry or trial;

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( 2 ) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary;

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( 3 ) if the property is subject to speedy and natural decay, to dispose of the same.

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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 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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12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:

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( 1 ) preparing detailed proper panchnama of such articles;

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( 2 ) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and

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( 3 ) after taking proper security.

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13. For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition.

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14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However, in no set of circumstances, the investigating

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officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes, similar procedure can be followed.

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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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18. In 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 order within a period of six months 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 detailed panchnama should be prepared."

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6. Thus, the mandate of the law is loud and clear that the concerned magistrate has to deal with the mudammal promptly so that no loss of national resources may occur, and the police station is not unnecessarily to be overcrowded by mudammal.

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7. In view of above declaration of law, the impugned order dated 25.02.2020 is, hereby, quashed and the case is remitted back to the concerned court and the concerned court is mandated to pass an appropriate order under Section 451 of the Cr.P.C. within two weeks from the date of receipt/production of a copy of this order. Further, the concerned court should verify the necessary documents and shall also prepare panchnama etc. and shall take proper indemnity bond etc. also before releasing the vehicle.

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8. With above observation and direction, the present criminal revision being Criminal Revision No.535 of 2020 stands disposed of.

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(Rajesh Kumar, J.)

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Amar/-

Kanhai Yadav v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Kanhai Yadav v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

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