Gyanendra Kumar Tiwari @ Pappu vs State Of U.P.

Heard the learned counsel for the revisionist and learned AGA for the State-respondent.

To assail correctness of the impugned judgment and order dated 31.10.2020 passed by Additional Sessions Judge (POCSO Act)/Special Judge, NDPS Act, Court No.9, Kaushambi in Misc. Application No.23 of 2020 (State of U.P. vs. Gyanendra Kumar Tiwari @ Pappu) bearing Case Crime No.332 of 2020, under Section 8/20 of Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as the "N.D.P.S. Act") at Police Station Saini, District Kaushambi, this revision has been preferred.

As per allegation made in the first information report is that on 04.08.2020 at about 00.12 hours in the mid night while Pradeep Kumar Singh, SHO Saini alongwith police personnel were on patrolling in vehicle No.UP-73 G-0119 and all of them were discussing at that time the intelligence incharge Sub Inspector Sarvesh Kumar alongwith his team reached there on government vehicle of Tata Sumo No. UP-32 BG-7529 and upon receiving secret information that on Maruti Bolero Car No. UP-70 EE-5371 is likely to go from the site of Manjhanpur towards Gulamipur via Siyara in connection with illegal supply of Ganja. Police intercepted the said vehicle in which four persons including driver were sitting in the said vehicle. Driver told his name as Gyanendra Kumar Tiwari @ Pappu Tiwari and from his possession, Rs.42000/- cash one Vivo Mobile bearing nos.6392962753 & 9559564486 has been recovered. From possession of Anuruddh Kumar Tripathi, Rs.40000/- cash one Vivo Mobile bearing no.9984885779 has been recovered. From the possession of Shubham Singh @ Lucky, Rs.37000/- cash, one Redmi Note mobile bearing nos.9839250739 & 6387145445 has been recovered. From the possession of Preetam Kumar Dwivedi, Rs.31000/- cash one Vivo mobile phone bearing nos.9793881259 & 9555728218 has been recovered. From the Diggi of the said vehicle, 30 bundles Ganga (total 1 quintal 35 kg. Ganja) has been recovered.

Learned counsel for the revisionist has submitted that the revisionist has been falsely implicated in the present case. The recovery that has been made from the possession of the revisionist is false and fabricated and there is no public and independent eye witness of the alleged recovery to support the false allegations. The revisionist is the valid owner of the vehicle No.UP-70 EE-5371 and the said vehicle has been falsely seized by the police. He has further submitted that after the seizure of the vehicle, the vehicle is lying in an unattended condition in the premises of concerned Police Station in open air being exposed to sun and rain and the condition of the vehicle is likely to be deteriorated and since there is no bar under the N.D.P.S. Act for interim release of the vehicle, therefore, unless the seized vehicle is released in favour of the petitioner, he will be seriously prejudiced and there is no useful purpose to keep the vehicle during pendency of trial, hence, the revisionist is ready to give the sureties for releasing the vehicle.

In support of his submission, learned counsel for the revisionist has relied upon judgment of Hon'ble Supreme Court in the case of Ashok Kumar vs. State of Bihar and others, 2000 (8) SCC 22, Uttarakhand (Nainital Bench) in the case of Abhijeet Kumar vs. State of Uttarakhand, 2019 LawSuit (Utt) 148 and the Bombay High Court in the case of B.S. Rawat vs. Shaikh Abdul Karim and another, 1989 Crl. L.J.1998.

Opposing the submissions advanced by learned counsel for the revisionist, on the other hand, learned AGA vehemently opposed the prayer for release of the vehicle and has submitted that huge quantity of contraband narcotics drugs has been recovered from the alleged vehicle. The said vehicle is liable to be confiscated under the provision of Section 60 read with Section 63 of N.D.P.S Act. There is no illegality in the said order. He has further submitted that in presence of several witnesses i.e. police personnel including joint team of S.O.G., recovery of one quintal thirty five kilogram ganga has been made from the possession of the revisionist including the other co-accused persons in their presence. He has further submitted that the investigating officer has concluded the investigation without any illegality or infirmities and found sufficient evidence against the revisionist and other co-accused regarding illegal recovery of Ganja, which is transported in the said vehicle, and submitted the charge-sheet under Section 8/20 N.D.P.S. Act against the revisionist and other co-accused, namely, Anirudh Kumar Tripathi, Shubham Singh @ Lucky and Preetam Kumar on 21.09.2020, thereafter, the learned court below has rightly taken the cognizance. He has further submitted that investigating officer has rightly filed the police report on 03.10.2020 before the learned court below for forfeit the alleged seized vehicle, which is allowed by the court below vide order dated 31.10.2020. The impugned order is just and proper and does not suffer from any illegality or infirmity.

I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.

Perusal of the impugned order discloses that it is not in consonance with the requirement of Section 457 Cr.P.C. which entails that the Court shall determine the question of entitlement of possession under that section. In this case, it is not in dispute that the revisionist was entitled to possession of the aforesaid vehicle. The ownership of the said vehicle was not in dispute at all. Consequently, once the prayer before the court below was made for release of the said vehicle, the Court should have considered only the question of entitlement of possession.

No provision in N.D.P.S. Act has been brought to the notice of the Court which bars interim release of the vehicle where the owner has been implicated in the offence as one of the accused. The Hon'ble Apex Court in the case of Sunder Bhai Amba Lal Desai vs. State of Gujurat, 2003 (46) ACC 223, the Hon'ble Supreme Court has stipulated guidelines for prompt interim release of the vehicle seized in connection with the commission of an offence. Paragraphs 14 & 15 of the aforesaid judgment is reproduced below:

"14. In our view, whatever be 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 bond and guarantee as well as security for returns of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

In case where the vehicle is not claimed by the accused, owner, or the insurance company or by 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 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 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 possessions of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

The aforesaid view certainly support the contention of the learned counsel for the revisionist that no useful purpose will be served in keeping the vehicle detained at the police station itself. In view of the aforesaid discussion, since the impugned order is against the mandate of law as enshrined under Section 457 Cr. P.C. as well as against the aforesaid judgment of Hon'ble Apex Court, the present revision is disposed of with the direction that the vehicle i.e. Maruti Bolero Car No.UP-70 EE-5371 shall be released in favour of the revisionist immediately subject to the following conditions:-

He shall produce the original registration certificate, insurance paper before the concerned Police Station which shall be verified properly and true attested copies thereof.

He shall execute a bond in a sum of Rs.1,00,000/- (one lakh) with two solvent sureties to the satisfaction of the Chief Judicial Magistrate, Kaushambi.

He shall keep the vehicle insured at all times till the conclusion of the trial and produce the Insurance Certificate before the Trial Court as and when required; He must satisfy the Court that he is the registered owner of the vehicle.

He shall not change the colour or any part of the engine and chasis number of the vehicle.

He shall produce the vehicle either before the Court or before such other authorities as the Court may direct.

He will not transfer the vehicle to anybody else nor possession of the same be parted with until disposal of the case.

He shall not allow the vehicle to be used in the commission of any offence.

With the aforesaid directions, the present revision stands disposed off finally.