1. Rule. Rule made returnable forthwith. By consent of learned counsel for respective parties, the matter is taken up for final hearing, at the stage of admission.
2. By the present Petition filed under Article 226 and 227 of the Constitution of India, petitioner prayed that impugned order dated 20th March, 2010 passed by the learned Adoc Additional Sessions Judge-1, Aurangabad in Criminal Misc.Application No. 23/2010 be quashed and set aside and the Incharge of Pachod Police Station, Tq.Paithan, Dist.Aurangabad be directed to release the vehicle-Mahindra Max Jeep bearing No.MH-12-EF-5860 in C.R. no.III-57/2009 dated 13th December, 2009 and hand over the same to the petitioner.
FACTUAL MATRIX :-
3. The petitioner herein is original accused no.2 in N.D.P.S. (Special) Case No.2/2010 arising out of C.R. No.III-57/2009 registered with Pachod Police Station, Tq.Paithan, Dist.Aurangabad and copy of said F.I.R. is annexed at Exh.A (page 15). It is the contention of petitioner that he is owner of Mahindra Max Jeep bearing No.MH-12-EF-5860, which was purchased by him from one Abdul Hafiz Abdul Hamid. It is the contention of petitioner that he is doing the business of carrying goods through the said Jeep on the hire basis. On 13.12.2009, the accused no.1 Firoz approached to petitioner and engaged his Jeep for carrying cotton from Georai to Pachod. The petitioner did not have knowledge about the contents of gunny bags, which were loaded in said Jeep by said Firoz. While proceeding from Pachod to Rohilagad, the Police Personnel stopped said Jeep near Rohilagad phata and Police Personnel searched said Jeep, wherein gunny bags containing intoxicated articles i.e. Ganja were found on back side of the said Jeep. Accordingly, offence was registered against accused no.1 Firoz as well as against present petitioner and two other persons under Sections 8(C), 20(b)(1), 22, 29 of the N.D.P.S. Act on 13th December, 2009 and petitioner's Jeep was taken charge of under the said offences, which is registered with Pachod Police Station.
4. It is the contention of petitioner that he preferred application for bail, which was allowed by learned Adhoc Additional Sessions Judge-1, Aurangabad on 26.01.2010 and petitioner herein namely Anil Navnath Marathe was directed to be enlarged on bail on executing the P.R. bond and surety Bond each of Rs. 1,00,000/- under the aforesaid C.R. It is the contention of petitioner that the observations made by learned Judge in the said bail order are very material, wherein it has been observed that there is no whisper in the complaint that jeep owner was well aware about the substance which was likely to be transported in his Jeep being Ganja. Hence, ultimately learned Judge concluded that there is much substance in the submissions advanced on behalf of accused/applicant i.e. petitioner herein and there are reasonable grounds for believing that accused/applicant i.e. petitioner herein is not guilty of offence, and consequently, directed that applicant be enlarged on bail by the said order dated 26th January, 2010. The copy of Criminal Misc.Application No. 1860/2009 and the order passed thereon is annexed at Exh.B .
5. On the aforesaid background, it is the contention of the petitioner that after release on bail, petitioner herein preferred Criminal Misc. Application no.23/2010 before the same Court for interim custody of Mahindra Max Jeep bearing No.MH-12-EF-5860 under Section 156 of the Code of Criminal Procedure on 10th February, 2010 and copy thereof is annexed at Exh.C (page 28). However, learned Adhoc Additional Sessions Judge-1, Aurangabad i.e. the same Judge who granted bail to the petitioner rejected the said application by passing order on 20th March, 2010, wherein he observed that, " at present, there is absolutely nothing on record to show that vehicle was used without the knowledge of owner for transporting psychotropic substance or drugs and that owner had taken all reasonable precautions against such use. As such, at this stage, application cannot be allowed." Consequently, the learned Adhoc Additional Sessions Judge-1, Aurangabad rejected the said application for interim custody of Jeep as aforesaid by passing order dated 20th March, 2010. Being aggrieved and dissatisfied by the said order dated 20th March, 2010, passed by learned Adhoc Additional Sessions Judge-1, Aurangabad rejecting grant of interim custody of Jeep to petitioner herein, present petitioner preferred this Writ Petition for quashment of said impugned order and also for release of Mahindra Max Jeep bearing No.MH-12-EF-5860 of the petitioner by way of interim custody during pendency of trial of N.D.P.S. (Special) Case No.2/2010.
6. Heard Shri.V.M. Humbe, learned counsel for the petitioner and Shri.S.D. Kaldate, learned A.P.P. for the respondent. SUBMISSIONS :-
7. Learned counsel for petitioner argued that there are contradictory observations made by the same learned Judge in the order dated 26th January, 2010, while releasing petitioner herein on bail and while rejecting the application for interim custody of said Jeep by order dated 20th March, 2010. Learned counsel for petitioner also canvassed that keeping the said vehicle without use could cause damage to Engine, Battary, Tube, Tyre and interior decoration of the said Jeep. It is also contended that he has to repay loan installments and he would suffer from starvation, if the vehicle is not released and would suffer irreparable loss. Learned counsel for petitioner also submits that the said Jeep is lying with the Police Station, Pachod and same would lie idle till the disposal of the N.D.P.S. (Special) Case No.2/2010, and therefore, learned counsel for petitioner submits that the said Jeep is required to be released in favour of petitioner by way of interim custody, since he is owner thereof and since his livelihood is dependent upon it. It is also the contention of petitioner that he had no knowledge about the transportation of ganja or drug therein and liability of seizure of Ganja can not be fastened with petitioner herein.
8. As regards grant of interim custody of the vehicle to the owner during pendency of N.D.P.S. Case, learned counsel for petitioner relied upon the observations made in the case of "Ganesh Chandra Nayak V/s State of Orissa" reported in "2003 CRI.L.J. 3142 (Orissa High Court)", which are as follows : "4. Sub-section (3) of Section 60 of the N.D.P.S. (Amendment) Act specifically stipulates that any article or vehicle used for the purpose of commission of an offence under the said Act is liable for confiscation. In other words, the said article or vehicle must be before the Court at the time of trial and also at the end of the trial for the purpose of passing necessary orders. But, then vehicle in which the contraband articles were transported should be kept in safe custody, so that when the same is confiscated and put to auction, that would fetch maximum price. If the vehicle is, however, allowed to remain at the police station without any care and subjected to rain and sun, its condition will deteriorate and even if at the end of the trial an order of confiscation is passed, the same would not be beneficial to the State. Thus, according to me, what is required during the pendency of the trial is to make adequate arrangement for maintenance of the vehicle which would be kept in proper condition and ensure its production in course of trial as and when required and/or at the end of the trial if the Court so requires."
9. Learned counsel for petitioner also relied upon the ratio laid down in judicial pronouncement in the case of "Abhay Kumar Satpathy V/s State of Orissa" reported in "2002(22) OCR 362" and in the case of "Angrej Singh V/s State of Rajasthan reported in "(1992)3 CCR 2575" as well as decision of the Hon'ble Supreme Court in the case of "Ashok Kumar V/s State of Bihar" reported in "(2000) 8 JT (SC) 54" to substantiate his contentions.
10. Learned A.P.P. opposed present petition vehemently and submitted that learned Adhoc Additional Sessions Judge-1, Aurangabad has rightly observed in impugned order dated 20th March, 2010 that there is absolutely nothing on record to show that vehicle was used without the knowledge of owner for transporting psychotropic substance or drugs and that owner had taken all reasonable precautions against such use. Moreover, apprehension is posed by learned A.P.P. that if the vehicle in question is released to the owner as prayed for by way of interim custody, there is every possibility of transporting psychotropic substance and drugs therein again and such possibility can not be rulled out. Accordingly, learned A.P.P. supported impugned order dated 20th March, 2010 and submitted that petitioner is not entitled for interim custody of vehicle in question during pendency of trial, since the said vehicle may be misused for commission of further offences, and therefore, submitted that present petition be dismissed. CONSIDERATION :-
11. I have perused the order passed by learned Adhoc Additional Sessions Judge-1, Aurangabad dated 26th January, 2010, by which petitioner was released on bail in connection with offence under N.D.P.S. Act, 1985, as well as perused impugned order dated 20th March, 2010 passed by same Judge by whom application for interim custody of Mahindra Max Jeep bearing No.MH-12-EF-5860 was rejected, and I have also considered submissions advanced by learned counsel for the parties anxiously, as well as gave thoughtful consideration to the observations made in the above referred cases cited by learned counsel for petitioner and I am inclined to accept the submissions advanced by learned counsel for petitioner, since, sub-section 3 of Section 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 stipulates that any article or vehicle used for the purpose of commission of an offence under the said Act is liable for confiscation, meaning thereby that the said article or vehicle must be before the Court at the time of trial. Moreover, Section 61 of the said Act pertains to confiscation of goods used for concealing illicit drugs or substances. Section 62 pertains to confiscation of sale proceeds of illicit drugs or substance and further Section 63 pertains to procedure in making confiscations. However, learned A.P.P. could not point out any prohibitive provision under N.D.P.S. Act which prevents the grant of interim custody of vehicle to owner allegedly used for commission of offence, during pendency of trial. Admittedly, in the instance case, N.D.P.S. (Special) Case No. 2/2010 is pending and same is not likely to be taken up for hearing in near future, and therefore, since the petitioner who claims to be the owner of vehicle in question is entitled for interim custody of the said vehicle during pendency of the said trial but certainly on certain terms and conditions as mentioned herein below.
12. Besides that, it is also material to note that if the vehicle in question is allowed to remain at police station without any care and allowed to be subjected to rain and sun, its condition will deteriorate and there is every possibility of damage to Engine, Battary, Tube, Tyre and interior decoration of the said vehicle as well as it's parts, and therefore also, it is necessary to grant interim custody of the said vehicle in question i.e. Mahindra Max Jeep bearing No.MH-12-EF-5860 to petitioner to avoid the such eventualities. In the circumstances, the present petition deserves to be allowed subject to imposing certain conditions upon petitioner as mentioned herein below.
13. In the result, the present Petition is allowed and it is directed that trial Court shall examine the documents produced by petitioner and on its satisfaction that petitioner is the owner of Mahindra Max Jeep bearing No.MH-12-EF-5860, shall release the said Mahindra Max Jeep in question bearing registration No.MH-12-EF-5860 in favour of petitioner by way of interim custody, subject to condition that petitioner furnishes bond of Rs. 4,00,000/- as per usual terms and conditions towards security, to the satisfaction of trial Court, with specific condition that the said vehicle in question shall be produced by petitioner before trial Court at the time of trial and also as and when required and directed by the trial Court to do so, and also on the following conditions:-
(a) The petitioner shall not sale, transfer, mortgage or dispose of the aforesaid vehicle in any manner whatsoever and/or shall not make any change in its body, colour and chassis and engine number and chassis number be furnished before trial Court with an undertaking that no damage shall be caused or no part of the vehicle be substituted;
(b) The petitioner shall also file an undertaking before trial Court that the vehicle in question shall not be used for commission of any offence.
(c) Before giving interim custody of the vehicle in question to petitioner, coloured photographs of cabinet size from different angles clearly indicating registration number and other particulars of the vehicle shall be kept on file, and expenses for the photographs shall be borne by petitioner herein. (d) It is made clear that in case of any allegation regarding involvement of said vehicle in any criminal activity or in transportation of any objectionable articles, the order as to interim release of the said vehicle shall stand vacated automatically and the trial Court shall have due authority to take necessary steps for seizure of the said vehicle.
14. Rule is made absolute in the aforesaid terms accordingly.