TaxTMI 
TaxTMI 
2022 (3) TMI 1663
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....nsporting the same in a Swift Dezire Car bearing Registration No.OD-24-7214 and they are likely to pass through Majhipada road. Upon getting such information, the IIC, Phiringia P.S. formed a team and proceeded to the spot, i.e. village Majhipada to verify the veracity of the information received. After reaching the spot, they waited for the suspicious vehicle by concealing their presence. At about 8.40 A.M., they intercepted the Swift Dezire Car bearing No.OD-24-7214 along with two persons including the driver. On being asked, they disclosed their names as (1) Basudev Singh (present Petitioner), S/o. Manmohan Singh of village Purna, PS-Raghunathpur, Dist.-Jagatsinghpur and (2) Babuna Swain, S/o. Sadhu Charan Swain of village-Jagatpur Road, Dasapalla, PS-Dasapalla, Dist.-Nayagarh. After completion of formalities of search, the vehicle was searched and a jerry bag containing 30 kgs. 200 grams of Ganja was recovered from the dickey of the Car. Thereafter, the contraband Ganja and the vehicle was seized. Both the above named persons were arrested and were forwarded to the court on the allegation of commission of offences under Section 20(b)(ii)(C)/25/27 of the NDPS Act, 1985. Seizure ....
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....e same for committing crime. 7. Finally, on considering the submissions made by learned counsels for the parties it is found that the vehicle is involved in the offences under Section 20(b)(ii)(C)/25/29 of NDPS Act and that the vehicle was found transporting contraband Ganja without any authority. Accordingly, the court hold that the seized vehicle is liable for confiscation and that, if the vehicle is released to the Petitioner, he is likely to use the same for commission of similar type of offences. Accordingly, the application under Section 457 Cr.P.C. had been rejected by the Special Judge, Phulbani. 8. Challenging the aforesaid rejection order, the present revision application was filed by the Petitioner on the ground that the order passed by the learned court below is erroneous and illegal and that the Petitioner who is admittedly the owner of the vehicle has been falsely implicated in the case and that the Petitioner has been released on bail by this Court and the confiscation proceeding, if any, under Section 60 of the NDPS Act can only be done after conclusion of the trial and in the event the accused is found guilty of commission of the aforesaid offences. But durin....
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..... It is further submitted by learned State Counsel that the Petitioner was arrested and the vehicle was seized from the spot. Therefore, a prima facie case is well made out against the present Petitioner. Moreover, the investigation of the case has been concluded and charge-sheet has been filed. He further expresses his apprehension that in the event the vehicle will be released, the same may not be available for the Confiscation Proceeding at the conclusion of the trial and in the event the Petitioner is found guilty of the alleged offences and that the possibility of petitioner's transferring the vehicle during pendency of the trial by creating a third party interest over the vehicle cannot be ruled out. In such view of the matter, learned counsel for the State vehemently opposes the interim release of the vehicle in favour of the Petitioner. 13. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State. Perused the records and the relevant documents. 14. It is undisputable fact that the vehicle was intercepted on the basis of the information received from reliable sources by the IIC of the concerned police station and the contrab....
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.... connection with an offence registered against an accused person, namely, Bansi Lal. Whether the appellant himself will be a witness or an accused is not possible to state at the present moment according to the counsel for the State. Be that as it may, the situation is squarely covered by Section 457 CrPC. However, the fact that the court has power to dispose of property seized by the police but not yet produced before the Court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, especially when the stage of the case is in suspicion, the investigation is not over and chargesheet has not yet been laid. The court has to be circumspect in such a situation before releasing the property. While we reverse the decision of the courts below that the Special Judge had no power to release the seized property, we should not be taken to mean that whenever the claimant asks for the property back, he should be given back the said property. That has to be decided on its own merits in each case and the discretion of the court has to be exercised after due consideration of the interests of justice including the prospective n....
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.... point of time. This can be done pending hearing of applications for return of such vehicles. 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. 14. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only do they occupy substantial space in the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle ....
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.... The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer." 14. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only do they occupy substantial space in the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its roadworthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/Union Territories/Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police stations, especial....
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....e find as a routine course, the Courts impose condition of non-alienation and to keep the property intact without alteration in any manner. Many a time such conditions act harshly upon rightful owners of the property from exercising their lawful ownership rights. 6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the properly or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom int....
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....ver in the file and preferably also uploading it simultaneously on a server kept either in the concerned Court premises or in the server of the jurisdictional District Court (e) preparing a valuation report of the vehicle by an approved valuer; (f) obtaining a security bond. (II) the concerned court will record the statements of the complainant, the accused as well as the person to whom the custody of the vehicle is handed over affirming that the above steps have taken place in their presence. (III) Subject to compliance with (I) and (II) above, no party shall insist on the production of the vehicle at any subsequent stages of the case. The panchnama, the encrypted digital photograph and video clip along with the valuation report should suffice for the purposes of evidence. (IV) The Courts should invariably pass orders for return of vehicles and/or accord permission for sale thereof and if in a rare instance such request is refused, then reasons thereof to be recorded in writing should be the general norm rather than the exception. (V) In the event of the vehicle in question being insured, the concerned Court shall issue notice ....
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...., or any article liable to confiscation under sub-section (I) or sub-section(2) shall be liable to confiscations, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use." 25. With regard to the procedure to be followed while confiscating any seized articles/vehicles, the provision as enshrined under Section 63 of the NDPS Act is applicable. Section 63 of the NDPS Act reads as under: "Section 63 ~ Procedure in making confiscations- In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the Court shall decide whether any article or thing seized under this Act is liable to confiscation under Section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly." 26. In view of the aforesaid provisions, a vehicle seized under the NDPS Act for the alleged commission of crime of carrying contraband articles can only be confiscated after the accused is c....
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....eized under this Act within the local area of the Police Station and which may be delivered to him. There is no express provision in the act for release of the property like vehicle or conveyance in interim custody of a rightful owner. Provision contained in Section 51 of the Act does not expressly bar operation of the provision of the Cr.P.C. if they are not inconsistent with the provision of the Act. Taking into consideration the stage of the confiscation proceeding in the scheme of the trial as provided under Section 60(3) of the Act, safe custody of the articles seized and delivered to a police officer under Section 55 of the Act pending order of the Magistrate, absence of any specific provision in the Act for release of valuable articles like vehicle etc. in the interim custody of the registered owner and especially in view of the mandate for confiscation of a vehicle or conveyance after the trial is concluded and further fact that the commercial price of such an article is to be protected in the interest of justice, I have no hesitation to hold that operation of Sections 451 and 457 Cr.P.C. is not specifically excluded by Section 51 of the Act. In my view I am supported by th....
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....rtained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation." 30. A bare reading of Section 457 Cr.P.C. gives a clear impression that in a criminal enquiry or trial, the Magistrate has been vested with wide powers to pass such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property 31. Sub-Section 2 of Section 457 provides the Magistrate may order the property to be delivered to a person lawfully entitled to on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may ....
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.... is of the considered view that no fruitful purpose would be achieved by simply keeping the seized vehicles at the police stations without proper maintenance and by keeping the vehicles exposed to open sky, sun and rain under extreme weather conditions and keep on spending a huge sum of money for the safety and security of the seized vehicle. On the contrary, if the vehicle is given on interim release in favour of the person with the terms and conditions and following the guidelines laid down by this Court in the case of Ashis Ranjan Mohanty (supra), the deteriorating condition of the vehicles and the loss commercial value of the vehicle could be prevented to a large extent. Further the court below can always impose conditions to ensure that the vehicle is not misused/alienated and the same is produce before the court below as and when it is required by the court. In addition to the conditions laid down by this Court in Ashis Ranjan Mohanty (supra), the trial court can always intimate the fact of interim release of the vehicle in favour of the owner to the concerned RTO/RTA, who shall record the same in the registrar so that any attempt to alienate the same or create any third part....