IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44051 of 2009 BIKRAM SUR & ANR Versus THE UNION OF INDIA ----------- 02 05.04.2010 Heard learned counsel for the petitioners and learned counsel for the State. N.D.P.S. Case No. 98 of 2006 was registered on 10.10.2006 under Sections 20 (B) 1, 21 and 22 of the N.D.P.S. Act. The informant, a Police Officer stated that he received information from the Chowkidar that a truck had turned turtle on N.H.-28. The local people told the informant that the driver and khalasi had run away. There was an obnoxious smell coming from driver's cabin. Bundles were found on the ceiling of the driver’s cabin containing ganja of a total 60 K.gs. From documents found in the drivers cabin the by sanders told the informant that he was the driver mentioned as Md. Nasim, his address was of New Delhi and the truck owner named as petitioner no.1. The name of petitioner no.2 has figured during investigation. The police after investigation did not submit charge-sheet against petitioner no.1 to face trial which came to be accepted by the court below 2 on 27.8.2008. Petitioner no.1 then moved an application for release of the vehicle which has been rejected by the impugned order dated 21.6.2007. It is submitted that the petitioner holds a bona fide power of attorney from the original owner of the truck and, therefore, is entitled to release of the vehicle. No useful purpose is going to be served by keeping the truck in custody to deteriorate, the trial is likely to take time and the original owner of the truck has not been made an accused. Opposing the application, learned counsel for the State submits that the truck in question from which the Narcotics were seized is a valuable piece of evidence and was liable for forfeiture under the provisions of Narcotics Act. There may not be sufficient justification for release of the vehicle during the trial. Learned counsel for the petitioner has relied upon a judgment reported in 2003 (4) P.L.J.R. 244 (SC) (SUNDERBHAI AMBALAL DESAI VERSUS STATE OF GUJARAT). The Supreme Court adequately noticed the provisions of Sections 451 and 457 of the Cr.P.C. with regard to procedure for custody and disposal of property pending trial and also the role of the Police when it seized property. It 3 has been observed at paragraph-7 of the judgment as follows:- “7. In our view, the powers under Section 451, Cr. P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchnama before handing over possession of 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 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.” Directions have thereafter been given with regard to release of vehicles at paragraph-17 and 18 as follows:- “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 4 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 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 possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.” The order dated 21.6.2007 is accordingly set aside. Directions are given for release of the vehicle upon furnishing adequate security to the satisfaction of the court below and execution of a bond to produce the vehicle as and when directed during the course of the trial. The petitioner no.1 is further required to make full disclosure by documentary evidence of the nature of the security in addition to his own identity and proof of residence to facilitate the court below to take 5 appropriate measures to ensure production of the vehicle as and when so directed. The application stands allowed. P.K. (Navin Sinha, J.)