Kirta Ram Vs. State of Rajasthan - Court Judgment

Excerpt:
- labour & servicesappointment: [shiv kumar sharma, ashok parihar & k.s. rathore, jj] merit list rajasthan secondary education act (42 of 1957), section 28 & rajasthan board of secondary education rules, rule 20 - held, improved marks obtained by candidate after re-appearing in examination can be considered for drawing the merit list of candidate for appointment to post of teacher. circular issued by the director of primary & secondary education ousting such candidate from consideration in merit list is illegal and without jurisdiction. - on being asked to the petitioner, in whose favour, the registration stands, the petitioner clearly came with a case that he has sold the vehicle to dinesh kumar on 5-5-2005 by receiving a sum of rs. however, in order to get absolved from the liability and penal consequences of being arrayed as accused in the case, the petitioner clearly came with a case that the vehicle in question was sold to dinesh kumar, from whose possession it was seized by the police.orderh.r. panwar, j.1. this criminal misc. petition under section 482, cr. p.c. is directed against the order dt. 7-3-2006 passed by special judge, ndps cases, chittorgarh (for short the trial court') hereinafter, whereby an application filed by the petitioner under section 457, cr. p.c. seeking interim custody, of the vehicle bearing registration no. rj04/ t-0379, was dismissed.2. i have heard learned counsel for the petitioner and the public prosecutor for the state. carefully gone through the order impugned as also the material available on record.3. it is contended by learned counsel for the petitioner that the petitioner is a registered owner of the vehicle tata spacio bearing registration no. rj04/t-0379, which was seized by the police while it was used as conveyance by transporting 7 quintals and 28 kgs. of poppy straw in 18 bags on 15-7-2005. it is further contended by the learned counsel for the petitioner that no useful purpose will be served in allowing the vehicle to remain at police station during the pendency of the case. learned counsel for the petitioner has relied on a decision of hon'ble supreme court in sunderbhai ambalal desai v. state of gujarat : [2002]supp3scr39 and two decisions of this court in sant lal v. state of rajasthan 2006 (2) rlw 890 and in govind singh v. state of rajasthan 2007 wlc (raj) uc 255.4. learned public prosecutor vehemently opposes the release of the vehicle in question of 'superdaginama' during the pendency of the case and contends that undisputedly the vehicle in question was found using as conveyance in transporting 7 quintals and 28 kgs of poppy straw which is the commercial quantity and is liable to be confiscated under sub-section (3) of section 60 of the narcotic drugs and psycho-tropic substances act, 1985 (for short 'the ndps act' hereinafter). he has relied on a decision of hon'ble supreme court in ganga hire purchase pvt. ltd. v. state of punjab : 2000crilj587 and a decision of this court in prabhu ram v. state of rajasthan s.b. cr. misc. petition no. 739/ 2007 decided on 4-7-2007.5. i have given my thoughtful consideration to the submissions made by the learned counsel for the parties.6. facts giving rise to the instant case are that on 15-7-2005 at 8.30 a.m. s.h.o. police station, bhadsoda, distt. chittorgarh received a second information that a vehicle tata spacio bearing no. gj 12 p-5124, which is driven by bhera ram and dinesh kumar is occupant of the said vehicle is transporting the poppy straw. the police intercepted the said vehicle and found bhera ram, who was driving the said vehicle and dinesh kumar was the occupant. on the vehicle being checked, it was found carrying 7 quintals and 28 kgs. of poppy straw in 18 bags. on further checking, it revealed that a fake registration has been shown on the vehicle. in fact, the vehicle which was checked and seized by the police bears the registration no. rj04-t-0379, whereas in the vehicle;, it was displayed 'gj-12p-5124'. the police' registered a crime report for the offences under sections 6/15 of the ndps act and 420, 467, 468, 471 and 120-b, ipc.7. the occupant of the said vehicle dinesh kumar claimed himself to be the owner of the said vehicle on the strength of agreement for sale, which was entered into in his favour by its registered owner, who is petitioner herein and placed on record a document showing that he has paid a sum of rs. 1,00,000/- to its owner kita ram petitioner herein on 5-5-2005 and the remaining amount has been paid in monthly instalments and as such since 5-5-2005, he is in possession of the vehicle in question as owner under the agreement for sale. on being asked to the petitioner, in whose favour, the registration stands, the petitioner clearly came with a case that he has sold the vehicle to dinesh kumar on 5-5-2005 by receiving a sum of rs. 1,00,000/- and remaining amount has been received in instalments, however, some parts of instalments are yet to be received and did not claim himself to be the owner. had he claimed ownership of the vehicle, then he would have been accused in the case. however, in order to get absolved from the liability and penal consequences of being arrayed as accused in the case, the petitioner clearly came with a case that the vehicle in question was sold to dinesh kumar, from whose possession it was seized by the police. during the pendency of the case, may be in order to protect his interest with regard to remaining outstanding instalments or confiscation of said vehicle, the petitioner claimed to be the owner of the vehicle and filed an application seeking interim custody of the vehicle on 'supurdaginama'. thus, from the record, it is clear that the petitioner has shifted his stand from not being the owner of the vehicle initially when the matter was investigated by the police in order to get absolved from the penal consequences as provided in ndps act and later on, shifted the stand in claiming the ownership of the vehicle on the strength of the registration certificate stands in his favour and thus, once the petitioner claimed that he is not the owner of the vehicle on the relevant date of occurrence, now the petitioner cannot be permitted to seek the interim custody of the vehicle on the basis of registration certificate stands in his name. the vehicle, which was found using as a conveyance and transporting a huge quantity of poppy straw i.e. 7 quintals ad 28 kgs. is subject to confiscation under sub-section (3) of section 60 of the ndps act.8. sub-section (3) of section 60 of the ndps act provides that any animal or conveyance used in carrying any narcotic drugs or psychotropic substance, (or controlled substances) or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable, to confiscation, 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.9. in the instant case, even according to the petitioner himself, when the vehicle was seized by the police, the petitioner did not claim to be the owner of the vehicle in question, on the contrary, it was the petitioner, who filed the document agreement for sale dt. 5-5-2005 before the investigating agency taking the stand that he is not the owner of the vehicle seized by the police on the relevant date of occurrence as the vehicle has already been sold by him to accused dinesh kumar by an agreement for sale dt. 5-5-2005 by receiving a sum of rs. 1,00,000/- and the remaining amount has been received in instalments, however, some parts of the instalments are yet to be received. thus, in all practical purposes, according to the petitioner himself, dinesh kumar is the person, who is owner of the vehicle, may be by agreement for sale but for payment of valuable consideration and he was found transporting a huge quantity of poppy straw and as such dinesh kumar being the person in vehicle transporting such a huge quantity of poppy straw cannot say that the vehicle was used as conveyance and without knowledge or connivance of himself or his agent.10. in dharm pal v. state of haryana 2000 (2) efr 44 (p & h), the punjab and haryana court held that the petitioner himself was driving the vehicle at the time of the alleged occurrence. there is nothing to show at this stage, that the vehicle in question was used for carrying the narcotic drugs and psychotropic substance without his knowledge or connivance or that he had taken all reasonable precautions against the misuse. therefore, unless the petitioner is'' able to establish these factors, the vehicle in question is liable to be confiscated and cannot be returned on superdari, at this stage. in view of the specific provisions contained in section 60 of the ndps act, the vehicle cannot be ordered to be released on superdari to the petitioner therein at this stage.11. in ganga hire purchase pvt. ltd. v. state of punjab air 2000 sc 449 (supra), the hon'ble supreme court held that the very purpose for engrafting sub-section (3) of section 60 of the ndps act is to have it as a deterrent measure to check the offences under the ndps act, which have been found to be dangerous to the entire society. the expression 'owner' has been defined under section 2 of sub-section (30) of the motor vehicles act, 1988, which provides that 'owner' means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.12. in the instant case, undisputedly, it is dinesh kumar, who was in possession of the vehicle at the relevant time of offence under an agreement for sale executed by the petitioner after receiving the consideration of sale and he being the owner of the vehicle has not sought the custody of the vehicle but it is the petitioner, who claimed the interim custody of the vehicle. thus, the vehicle found in contravention of ndps act transporting commercial quantity of poppy straw is liable to be confiscated from its owner dinesh kumar and, therefore, in my view the petitioner is not entitled for interim custody of the vehicle in question. the decisions relied on by the learned counsel for the petitioner turn on their own facts and are of no help to the petitioner in view of the facts and circumstances of the case.13. for the reasons stated above, i do not find any merit in the instant criminal misc. petition. the petition is dismissed accordingly.

Judgment:
ORDER

H.R. Panwar, J.

1. This criminal misc. petition under Section 482, Cr. P.C. is directed against the order dt. 7-3-2006 passed by Special Judge, NDPS Cases, Chittorgarh (for short the trial Court') hereinafter, whereby an application filed by the petitioner under Section 457, Cr. P.C. seeking interim custody, of the vehicle bearing registration No. RJ04/ T-0379, was dismissed.

2. I have heard learned Counsel for the petitioner and the public prosecutor for the State. Carefully gone through the order impugned as also the material available on record.

3. It is contended by learned Counsel for the petitioner that the petitioner is a registered owner of the vehicle Tata Spacio bearing registration No. RJ04/T-0379, which was seized by the police while it was used as conveyance by transporting 7 quintals and 28 kgs. of poppy straw in 18 bags on 15-7-2005. It is further contended by the learned Counsel for the petitioner that no useful purpose will be served in allowing the vehicle to remain at police station during the pendency of the case. Learned Counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat : [2002]SUPP3SCR39 and two decisions of this Court in Sant Lal v. State of Rajasthan 2006 (2) RLW 890 and in Govind Singh v. State of Rajasthan 2007 WLC (Raj) UC 255.

4. Learned Public Prosecutor vehemently opposes the release of the vehicle in question of 'Superdaginama' during the pendency of the case and contends that undisputedly the vehicle in question was found using as conveyance in transporting 7 quintals and 28 kgs of poppy straw which is the commercial quantity and is liable to be confiscated under Sub-section (3) of Section 60 of the Narcotic Drugs and Psycho-tropic Substances Act, 1985 (for short 'the NDPS Act' hereinafter). He has relied on a decision of Hon'ble Supreme Court in Ganga Hire Purchase Pvt. Ltd. v. State of Punjab : 2000CriLJ587 and a decision of this Court in Prabhu Ram v. State of Rajasthan S.B. Cr. Misc. Petition No. 739/ 2007 decided on 4-7-2007.

5. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties.

6. Facts giving rise to the instant case are that on 15-7-2005 at 8.30 a.m. S.H.O. Police Station, Bhadsoda, Distt. Chittorgarh received a second information that a vehicle Tata Spacio bearing No. GJ 12 P-5124, which is driven by Bhera Ram and Dinesh Kumar is occupant of the said vehicle is transporting the poppy straw. The police intercepted the said vehicle and found Bhera Ram, who was driving the said vehicle and Dinesh Kumar was the occupant. On the vehicle being checked, it was found carrying 7 quintals and 28 kgs. of poppy straw in 18 bags. On further checking, it revealed that a fake registration has been shown on the vehicle. In fact, the vehicle which was checked and seized by the police bears the registration No. RJ04-T-0379, whereas in the vehicle;, it was displayed 'GJ-12P-5124'. The police' registered a crime report for the offences under Sections 6/15 of the NDPS Act and 420, 467, 468, 471 and 120-B, IPC.

7. The occupant of the said vehicle Dinesh Kumar claimed himself to be the owner of the said vehicle on the strength of agreement for sale, which was entered into in his favour by its registered owner, who is petitioner herein and placed on record a document showing that he has paid a sum of Rs. 1,00,000/- to its owner Kita Ram petitioner herein on 5-5-2005 and the remaining amount has been paid in monthly instalments and as such since 5-5-2005, he is in possession of the vehicle in question as owner under the agreement for sale. On being asked to the petitioner, in whose favour, the registration stands, the petitioner clearly came with a case that he has sold the vehicle to Dinesh Kumar on 5-5-2005 by receiving a sum of Rs. 1,00,000/- and remaining amount has been received in instalments, however, some parts of instalments are yet to be received and did not claim himself to be the owner. Had he claimed ownership of the vehicle, then he would have been accused in the case. However, in order to get absolved from the liability and penal consequences of being arrayed as accused in the case, the petitioner clearly came with a case that the vehicle in question was sold to Dinesh Kumar, from whose possession it was seized by the police. During the pendency of the case, may be in order to protect his interest with regard to remaining outstanding instalments or confiscation of said vehicle, the petitioner claimed to be the owner of the vehicle and filed an application seeking interim custody of the vehicle on 'Supurdaginama'. Thus, from the record, it is clear that the petitioner has shifted his stand from not being the owner of the vehicle initially when the matter was investigated by the police in order to get absolved from the penal consequences as provided in NDPS Act and later on, shifted the stand in claiming the ownership of the vehicle on the strength of the registration certificate stands in his favour and thus, once the petitioner claimed that he is not the owner of the Vehicle on the relevant date of occurrence, now the petitioner cannot be permitted to seek the interim custody of the vehicle on the basis of registration certificate stands in his name. The vehicle, which was found using as a conveyance and transporting a huge quantity of poppy straw i.e. 7 quintals ad 28 kgs. is subject to confiscation under Sub-section (3) of Section 60 of the NDPS Act.

8. Sub-section (3) of Section 60 of the NDPS Act provides that any animal or conveyance used in carrying any narcotic drugs or psychotropic substance, (or controlled substances) or any article liable to confiscation under Sub-section (1) or Sub-section (2) shall be liable, to confiscation, 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.

9. In the instant case, even according to the petitioner himself, when the vehicle was seized by the police, the petitioner did not claim to be the owner of the vehicle in question, on the contrary, it was the petitioner, who filed the document agreement for sale dt. 5-5-2005 before the investigating agency taking the stand that he is not the owner of the vehicle seized by the police on the relevant date of occurrence as the vehicle has already been sold by him to accused Dinesh Kumar by an agreement for sale dt. 5-5-2005 by receiving a sum of Rs. 1,00,000/- and the remaining amount has been received in instalments, however, some parts of the instalments are yet to be received. Thus, in all practical purposes, according to the petitioner himself, Dinesh Kumar is the person, who is owner of the vehicle, may be by agreement for sale but for payment of valuable consideration and he was found transporting a huge quantity of poppy straw and as such Dinesh Kumar being the person in vehicle transporting such a huge quantity of poppy straw cannot say that the vehicle was used as conveyance and without knowledge or connivance of himself or his agent.

10. In Dharm Pal v. State of Haryana 2000 (2) EFR 44 (P & H), the Punjab and Haryana Court held that the petitioner himself was driving the vehicle at the time of the alleged occurrence. There is nothing to show at this stage, that the vehicle in question was used for carrying the narcotic drugs and psychotropic substance without his knowledge or connivance or that he had taken all reasonable precautions against the misuse. Therefore, unless the petitioner is'' able to establish these factors, the vehicle in question is liable to be confiscated and cannot be returned on superdari, at this stage. In view of the specific provisions contained in Section 60 of the NDPS Act, the vehicle cannot be ordered to be released on superdari to the petitioner therein at this stage.

11. In Ganga Hire Purchase Pvt. Ltd. v. State of Punjab AIR 2000 SC 449 (supra), the Hon'ble Supreme Court held that the very purpose for engrafting Sub-section (3) of Section 60 of the NDPS Act is to have it as a deterrent measure to check the offences under the NDPS Act, which have been found to be dangerous to the entire society. The expression 'owner' has been defined under Section 2 of Sub-section (30) of the Motor Vehicles Act, 1988, which provides that 'owner' means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.

12. In the instant case, undisputedly, it is Dinesh Kumar, who was in possession of the vehicle at the relevant time of offence under an agreement for sale executed by the petitioner after receiving the consideration of sale and he being the owner of the vehicle has not sought the custody of the vehicle but it is the petitioner, who claimed the interim custody of the vehicle. Thus, the vehicle found in contravention of NDPS Act transporting commercial quantity of poppy straw is liable to be confiscated from its owner Dinesh Kumar and, therefore, in my view the petitioner is not entitled for interim custody of the vehicle in question. The decisions relied on by the learned Counsel for the petitioner turn on their own facts and are of no help to the petitioner in view of the facts and circumstances of the case.

13. For the reasons stated above, I do not find any merit in the instant Criminal Misc. Petition. The petition is dismissed accordingly.