Smt. Lalnunmawii v. State of Mizoram R/B Secretary/Commissioner, Excise and Narcotics Department and Anr

ORDER Date : 20-04-2023 Heard Mr. J.H. Ramneihmawia, learned counsel for the petitioner, who submits that the petitioner has filed the instant petition under Section 482 of the Cr.P.C., praying for the release of her motor vehicle i.e., Maruti Suzuki Ciaz Smart Hybrid Delta bearing Registration No. MZ 01 T 5265, which was seized by the Excise & Narcotics Personnel on 29.12.2022 because of the alleged recovery of 1.885 kilograms of Methamphetamine from the possession of the accused persons using the vehicle at Tuikhurhlu, Seling, Aizawl District, Mizoram. Due to Page No.# 2/7 the recovery of the alleged drugs, Excise Case No. N-217/2022 dated

30.12.2022 was registered against the accused persons. Upon completion of the investigation, the Excise & Narcotics Department has filed the charge sheet No. Ex-(ANS) 15/2023 dated 30.01.2023 against 4 (four) accused persons. The accused No. 1 is the elder brother of the instant petitioner.

¶2The learned counsel submits that the petitioner is the registered owner of the vehicle and she has no involvement and no knowledge about the carrying of the alleged drugs in the said vehicle. He submits that since the seizure of the said vehicle on 29.12.2022, the vehicle is in the custody of the Excise & Narcotics Department and is being kept in the open. As such, the vehicle is being subjected to rust and decay and if the same is not released to the petitioner pending disposal of the trial, the petitioner is bound to suffer irreparable loss and hardship. He therefore submits that the same may be released to the petitioner and that the petitioner is ready to give any undertaking as may be required for release of the said vehicle.

¶3Ms. Mary L. Khiangte, learned Additional Public Prosecutor, on the other hand submits that the petitioner has only annexed some documents of the vehicle obtained through Vahan app. and therefore, it cannot be said for sure that the petitioner is the registered owner of the vehicle without seeing the original documents. She further submits that since the accused No. 1 is the elder brother of the petitioner, it is unbelievable that the petitioner was not aware about the use of the vehicle for carrying the alleged drugs. She submits that the vehicle otherwise is liable to be confiscated in terms of the relevant provisions of the ND&PS Act.

¶4I have heard the submissions made by the learned counsels for the rival Page No.# 3/7 parties and I have perused the materials available on record.

¶5The case of the prosecution is that the alleged drugs have been recovered from the accused persons, who were travelling in the said vehicle. As a result, while arresting the accused persons and seizing the alleged drugs, the vehicle has also been seized by the Excise & Narcotics Department and since December, 2022, the same appears to be left in the open as can be seen from the photograph annexed by the petitioner in the criminal petition as Annexure-10. Although the charge sheet has been filed and trial has commenced admittedly but it is not known as to when the same can be concluded. The prosecution has also cited as many as 8 (eight) prosecution witnesses and as submitted at the bar today, the evidence of the prosecution witness No. 1 is yet to be recorded.

¶6The petitioner before coming to this Court had filed Criminal Misc. Appln. No. 8/2023 before the learned Judge, Special Court, ND&PS Act, Aizawl praying for release of the said vehicle but however, the application was rejected by the learned Judge.

¶7The Apex Court in Sunderbhai Ambalal Desai (supra) appreciated the purpose and import of Section 451 Cr.PC. In doing so, the Apex Court had also referred to its earlier decision in Basavva Kom Dyamangouda Patil (supra). Paragraph Nos. 5, 7, 8, 15, 17 & 18 of Sunderbhai Ambalal Desai (supra) may be gainfully abstracted below:- "5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as:

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

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

(3) if the property is subject to speedy and natural decay, to dispose of the same. Page No.# 4/7

¶7In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely:

¶1owner of the article would not suffer because of its remaining unused or by its misappropriation;

¶2court or the police would not be required to keep the article in safe custody;

¶3if 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

¶4this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

¶8The question of proper custody of the seized article is raised in a number of matters. In Basavva Kom Dyamangouda Patil v. State of Mysore this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under: "4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the court or should be in its custody. The object of the Code seems to be that any property which is in the c control of the court either directly or indirectly should Page No.# 5/7 be disposed of by the court and a just and proper order should be passed by the court regarding its disposal. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."

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¶15Learned 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 owners or to the person from whom the said vehicles are seized by taking appropriate bond and guarantee for the return of the said vehicles if required by the court at any point of time.

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¶17Whatever 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.

¶18In 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 Page No.# 6/7 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."

¶8From the above abstract, it may be seen that according to the Apex Court, Section 451 Cr.PC empowers the Court to pass appropriate orders with regard to property including vehicles for the proper custody pending conclusion of the inquiry or trial. The Apex Court in the given facts of that case observed that whatever situation it may be, it would be of no use to keep a seized vehicles at the Police Station for a long period and it would be for the Magistrate concerned to pass appropriate orders immediately by taking appropriate bond, guarantee as well as security for return of the said vehicle, as and when required by the Court and at any point of time. In fact, before handing over the possession of such vehicles, appropriate photographs of the vehicle should be taken and detailed panchnama should be prepared.

¶9Thus, upon having considered the projection made by the petitioner as well as the State respondents and importantly the decision of the Apex Court, I am of the considered view that the learned Trial Court ought to have considered release of the said vehicle by following the safeguards as observed by the Apex Court in the aforesaid referred case. In view of above, pending conclusion of the trial, the vehicle is directed to be released to the petitioner, however, only after the safeguards as provided herein above has been secured. The petitioner shall appear before the learned Trial Court along with the certified copy of this order on 27.04.2023 and on her appearance, the learned Trial Court shall cause the preparation of all the safeguards as spelt out in the case of Sunderbhai Ambalal Page No.# 7/7 Desai (supra) and thereafter, release the vehicle to the petitioner.

¶10With the above observation and direction, the Criminal Petition stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/7 GAHC030001682023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./3/2023 Smt. Lalnunmawii Phunchawng Mel-6, Aizawl, Mizoram VERSUS State of Mizoram r/b Secretary/Commissioner, Excise and Narcotics Department and Anr. Aizawl2:The Officer-in-Charge Anti Narcotics Squad Commissionerate of Excise and Narcotic Advocate for the Petitioner : Mr. J H Ramneihmawia Advocate for the Respondent : P.P./Addl.PP, Mizoram BEFORE HONOURABLE MR. JUSTICE NELSON SAILO