IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24th DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.1383/2018 BETWEEN :
Sree Mahashakthi Roadways (Madras) Represented by Neeraj Aggarwal Proprietor Aged about 48 years S/o Mr. Pitamberalal Aggarwal No.15, RR Mill Street Kondithope, New Walltax Road Chennai-600 079.
… Petitioner (By Sri B.T. Prasanna Kumar, Advocate) AND :
The State of Karnataka by Kengeri Excise Police Station Mysore Road, Shirke Layout Bengaluru-560 060 Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
… Respondent (By Sri S.T.Naik, HCGP) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the order dated 03.12.2018 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bangalore in Crime No.19/2018 and CIS No.1229/2018 in dismissing the application filed by the petitioner under Sections 451, 457 of the Cr.P.C seeking for interim custody of the Crude Oil which was being transported in the truck bearing No.HR-37-D-3715 and to grant interim custody of the Crude Oil which is presently in the custody of the respondent police till the conclusion of the trial or until further orders.
This Criminal Revision Petition coming on for admission this day, the Court made the following:-
O R D E R This petition is filed by the claimant-transporter being aggrieved by the order passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, in Crime No.19/2018 and CIS No.1229/2018 dismissing the application filed under Sections 451 and 457 of Cr.P.C. for releasing SF crude oil for interim custody of the transporter.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State.
3. The gist of the prosecution case is that the petitioner-claimant hired the tanker bearing Regn.No.HR- 37-D.3715 for transporting SF crude oil from the consignor M/s.M.K.Agrotech Private Limited, Srirangapatna to consignee Shri Ganesh Edibles Private Limited, Khanna Amloha Road, Shahpur, Punjab and he loaded the said tanker on 2.10.2018 and dispatched the same from Srirangapatna to proceed towards Punjab. The said vehicle was stopped in transit and when it was checked by the authorities, they found two packets weighing 0.450 grams of opium behind the driver seat. They arrested the driver and seized the said vehicle including the opium and a case has been registered. Thereafter the other proceedings have been taken place. The claimant-petitioner herein filed an application under Sections 451 and 457 of Cr.P.C. before the trial Court to release SF crude oil stored in the vehicle which has been seized by the complainant. The said application came to be rejected. Being aggrieved by the same, the petitioner is before this Court.
4. It is the submission of the learned counsel for the petitioner that petitioner in no way connected to the alleged crime and the said vehicle was taken on hire only for the purpose of transportation of SF crude oil and crude oil is in no way connected to the alleged crime. He further submitted that if the said oil is kept in the custody of the police, it may deteriorate, will spoil its originality and it cannot be used further after expiry of date and the claimant will be put to greater financial loss. He further submitted that the petitioner is ready to give surety or security as ordered by this Court. He further submitted that the petitioner is having valid records to transport the said oil from Srirangapatna to Punjab. The said oil was not being transported illegally. He further submitted that the petitioner is ready to abide by any conditions to be imposed by this Court and ready to offer sureties. On these grounds, he prays to allow the petition.
5. Per contra, the learned HCGP has vehemently argued and submitted that there are no valid records for transportation of SF crude oil and even the permit also not been produced. He further submitted that as per the provisions of the NDPS Act, the said vehicle along with the items has to be seized. Hence, the oil along with the opium which was found behind the seat of the driver has also been seized. There is ample material that the driver has been involved in the crime and still investigation is pending. At this juncture, if the said oil is released, it is going to hamper the investigation. On these grounds, he prayed to dismiss the petition.
6. I have gone through the submissions made by the learned counsel for the parties and I have also perused the records.
7. It is not in dispute that the present petitioner hired the vehicle bearing Regn.No.HR-37-D.3715 for transporting SF crude oil from Srirangapatna to Punjab. It is also not in dispute that in the said transportation when the vehicle was checked by the authorities, they found two packets of opium weighing 0.450 grams behind the driver seat, which is a matter to be considered and appreciated only at the time of trial and not at this stage. What are the circumstances which are to be looked into while considering the application filed under Sections 451 and 457 Cr.P.C. have been elaborately discussed by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in (2002)10 SCC 283, wherein at paragraphs-7 and 8, it has been observed as under:-
“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 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 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.
8. The question of proper custody of the seized article is raised in 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: (SCC p.361, para 4) "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 control of the Court either directly or indirectly should 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."
8. On going through the said proposition of law, it clearly goes to show that whenever any articles which have been seized and if they are not required absolutely for the purpose of investigation, then under such circumstances, the same should be disposed of by the Court by taking proper security and the Court has to exercise the said power immediately after seizure of the said articles. The trial Court ignoring the aforesaid aspects, has rejected the application filed by the petitioner. It is not the case of the prosecution that the said SF crude oil is part and parcel of the crime and that it is required for further investigation and for interrogation and if at all the power which has been exercised under Section 60 of the NDPS Act for confiscation of the goods, it is the vehicle which has been used for the purpose of transportation and not the contents of the container as the said contents of the container are belonging to the claimant who hired the vehicle. If it is not released in his favour, definitely it is going to be spoiled and it cannot be used further and it is also going to cause financial loss to the claimant. Under the said facts and keeping in view the aforesaid proposition of law, I feel that by imposing some stringent conditions if the petition is allowed and SF crude oil stored in the said tanker is released in the favour of the petitioner, it would meet the ends of justice.
Accordingly, revision petition is allowed.
The order dated 3.12.2018 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bengaluru, in Crime No.19/2018 and CIS No.1229/2018, is set aside. The trial Court is directed to release the oil contained in the tanker in favour of the claimant-petitioner herein with the following conditions:-
i) The claimant-petitioner herein shall execute a personal bond for a sum of Rs.5,00,000/- (Rupees five lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) The trial Court is directed to take the photographs and other material with regard to delivery of the said oil to the claimant.
iii) The claimant is directed to give bank guarantee/security for the value of the said oil with two sureties for the like sum to the satisfaction of the trial Court.
iv) Trial Court is directed to evaluate the value of the oil then take bank guarantee/Security.
Sd/- JUDGE *ck/-