Ashok Kumar Vs. State of Himachal Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/891038
SubjectCriminal
CourtHimachal Pradesh High Court
Decided OnAug-11-2008
Judge Rajiv Sharma, J.
Reported in2008(2)ShimLC452
AppellantAshok Kumar
RespondentState of Himachal Pradesh
DispositionPetition allowed
Cases ReferredRajendra Prasad v. State of Bihar and Anr.
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.rajiv sharma, j.1. this criminal revision has been filed against the order dated 17.6.2008 passed by the learned additional sessions judge (fast track court) solan, in application no. 12-ftc/4 of 2008.2. the brief facts necessary for the adjudication of this criminal revision are that the vehicle bearing registration no. hp-02-a-0289 (maxi cab/trax) owned by the petitioner was seized in a case registered under sections 20 and 61 of the narcotic drugs artd psychotropic substances act 1985 in f.i.r. no. 54 of 2008, dated 8.5.2008 lodged at police station, parwanoo, district solan. he was arrested on the allegations that 4.200 kgs. charas was recovered from the trax bearing no. hp-02-a-0289 alongwith another person shri ramesh chand. he moved an application for grant of bail under section 439 of the code of criminal procedure. this court enlarged him on bail vide order dated 25.7.2008. he moved an application for interim custody of the vehicle owned by him alongwith documents on sapurdari bond. he has specifically stated in his application that he has raised loan to purchase the vehicle as a private service vehicle and was carrying passengers. he has also undertaken in the application that he will not transfer the ownership of the vehicle in favour of any person during the trial and had undertaken to produce the same either before the court or anywhere where the court would direct him to do so. the learned additional sessions judge called for the reply from the respondent. he rejected the application on 17.6.2008. this criminal revision has been preferred against the said order dated 17.6.2008.3. mr. jia lal bhardwaj has strenuously argued that the order dated 17.6.2008 is not sustainable in the eyes of law. he has relied upon sunderbhai ambalal desai v. state of gujarat : [2002]supp3scr39 . the learned additional advocate general has supported the order dated 17.6.2008.4. i have heard the learned counsel for the parties and perused the record carefully.5. the petitioner was arrested on the basis of f.i.r. no. 54 of 2008 dated 8.5.2008 registered under sections 20 and 61 of the narcotic drugs and psychotropic substances act, 1985. the vehicle bearing registration no. hp-02-a-0289 maxi cab/trax owned by him was seized by the police. he was enlarged on bail by this court on 25.7.2008. his application for the release of the vehicle has been dismissed by the trial court as noticed above on 17.6.2008. the learned additional sessions judge has not taken into consideration the judgment rendered by their lordships of the hon'ble supreme in sunderbhai ambalal desai v. state of gujarat (2002) 10 scc 283 while considering the application preferred by the petitioner. their lordships of the hon'ble supreme court have laid down the following guidelines for the release of the vehicles:learned 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.however, the learned counsel appearing for the petitioners submitted that this question of handing over the vehicle to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the persons concerned.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 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 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 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 vehicles 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.for articles such as seized liquor also, prompt action should be taken in disposing of it after preparing necessary panchnama. if sample is required to be taken, sample may be kept properly after sending it to the chemical analyser, if required. but in no case, large quantity of liquor should be stored at the police station. no purpose is served by such storing.6. their lordships of the hon'ble supreme court have further clarified these directions in sunderbhai ambalal desai v. state of gujarat (2002) 10 scc 290 as under:in our view, no further directions are required to be given in these matters. however, it is made clear that in case where the accused disputes that he is not involved in the alleged incident and no article was found from him then such endorsement be taken on the photograph. further, with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the court and the seizure report may be sufficient. the special leave petitions are disposed of, accordingly.7. their lordships of the hon'ble supreme court have held in rajendra prasad v. state of bihar and anr. (2001) 10 scc 88 that subject to certain conditions, custody of vehicle could be entrusted temporarily to its registered owner during the pendency of the trial. their lordships have held as under:we are not deciding the question as to the title of the vehicle in dispute nor the correctness of the rival versions regarding the transactions relating to the vehicle. we do not want the vehicle to remain in the compound of the police station exposed to heat and cold because the automobile is likely to be lost to all in such situation. to avert this situation, we are inclined to entrust it temporarily to the appellant who is the ostensible name-holder in the registration certificate. the custody of the vehicle with the appellant will be on behalf of the court and this arrangement is only till the stage when the court passes the order regarding disposal of the property on conclusion of the trial.8. the learned trial judge has not decided the application in accordance with law. the learned trial court should have been taken into consideration that the petitioner had undertaken to produce the vehicle before the court as and when required. he had also undertaken not to transfer the ownership of the vehicle in favour of any person during the pendency of the trial.9. consequently, in view of the observations made above, this petition is allowed.10. the vehicle bearing no. hp-02-a-0289 is directed to be released in his favour.11. the applicant shall execute bond in the sum of rs. 5,00,000/- (rupees five lacs) with two sovereign sureties to the effect that he will produce the vehicle back in the court when ever required by the court. he will also furnish undertaking that he will not transfer the ownership of the vehicle in question to any person during the pendency of the trial.12. no cost.
Judgment:

Rajiv Sharma, J.

1. This criminal revision has been filed against the order dated 17.6.2008 passed by the learned Additional Sessions Judge (Fast Track Court) Solan, in application No. 12-FTC/4 of 2008.

2. The brief facts necessary for the adjudication of this criminal revision are that the vehicle bearing registration No. HP-02-A-0289 (Maxi Cab/Trax) owned by the petitioner was seized in a case registered under Sections 20 and 61 of the Narcotic Drugs artd Psychotropic Substances Act 1985 in F.I.R. No. 54 of 2008, dated 8.5.2008 lodged at Police Station, Parwanoo, District Solan. He was arrested on the allegations that 4.200 Kgs. Charas was recovered from the Trax bearing No. HP-02-A-0289 alongwith another person Shri Ramesh Chand. He moved an application for grant of bail under Section 439 of the Code of Criminal Procedure. This Court enlarged him on bail vide order dated 25.7.2008. He moved an application for interim custody of the vehicle owned by him alongwith documents on sapurdari bond. He has specifically stated in his application that he has raised loan to purchase the vehicle as a private service vehicle and was carrying passengers. He has also undertaken in the application that he will not transfer the ownership of the vehicle in favour of any person during the trial and had undertaken to produce the same either before the Court or anywhere where the Court would direct him to do so. The learned Additional Sessions Judge called for the reply from the respondent. He rejected the application on 17.6.2008. This criminal revision has been preferred against the said order dated 17.6.2008.

3. Mr. Jia Lal Bhardwaj has strenuously argued that the order dated 17.6.2008 is not sustainable in the eyes of law. He has relied upon Sunderbhai Ambalal Desai v. State of Gujarat : [2002]SUPP3SCR39 . The learned Additional Advocate General has supported the order dated 17.6.2008.

4. I have heard the learned Counsel for the parties and perused the record carefully.

5. The petitioner was arrested on the basis of F.I.R. No. 54 of 2008 dated 8.5.2008 registered under Sections 20 and 61 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The vehicle bearing registration No. HP-02-A-0289 Maxi Cab/Trax owned by him was seized by the police. He was enlarged on bail by this Court on 25.7.2008. His application for the release of the vehicle has been dismissed by the trial Court as noticed above on 17.6.2008. The learned Additional Sessions Judge has not taken into consideration the judgment rendered by their Lordships of the Hon'ble Supreme in Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283 while considering the application preferred by the petitioner. Their Lordships of the Hon'ble Supreme Court have laid down the following guidelines for the release of the vehicles:

Learned 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.

However, the learned Counsel appearing for the petitioners submitted that this question of handing over the vehicle to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the persons concerned.

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 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 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 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 vehicles 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.

For articles such as seized liquor also, prompt action should be taken in disposing of it after preparing necessary panchnama. If sample is required to be taken, sample may be kept properly after sending it to the Chemical Analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

6. Their Lordships of the Hon'ble Supreme Court have further clarified these directions in Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 290 as under:

In our view, no further directions are required to be given in these matters. However, it is made clear that in case where the accused disputes that he is not involved in the alleged incident and no article was found from him then such endorsement be taken on the photograph. Further, with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the Court and the seizure report may be sufficient. The special leave petitions are disposed of, accordingly.

7. Their Lordships of the Hon'ble Supreme Court have held in Rajendra Prasad v. State of Bihar and Anr. (2001) 10 SCC 88 that subject to certain conditions, custody of vehicle could be entrusted temporarily to its registered owner during the pendency of the trial. Their Lordships have held as under:

We are not deciding the question as to the title of the vehicle in dispute nor the correctness of the rival versions regarding the transactions relating to the vehicle. We do not want the vehicle to remain in the compound of the police station exposed to heat and cold because the automobile is likely to be lost to all in such situation. To avert this situation, we are inclined to entrust it temporarily to the appellant who is the ostensible name-holder in the registration certificate. The custody of the vehicle with the appellant will be on behalf of the Court and this arrangement is only till the stage when the Court passes the order regarding disposal of the property on conclusion of the trial.

8. The learned trial Judge has not decided the application in accordance with law. The learned trial Court should have been taken into consideration that the petitioner had undertaken to produce the vehicle before the Court as and when required. He had also undertaken not to transfer the ownership of the vehicle in favour of any person during the pendency of the trial.

9. Consequently, in view of the observations made above, this petition is allowed.

10. The vehicle bearing No. HP-02-A-0289 is directed to be released in his favour.

11. The applicant shall execute bond in the sum of Rs. 5,00,000/- (rupees five lacs) with two sovereign sureties to the effect that he will produce the vehicle back in the Court when ever required by the Court. He will also furnish undertaking that he will not transfer the ownership of the vehicle in question to any person during the pendency of the trial.

12. No cost.