# Azeem Husain v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 428
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-18
- **Case number:** Application u/s 482 No. 37387 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azeem-husain-v-state-of-u-p-anr-opp-parties-49967
- **Pages:** 4

## Headnote

Law-Code
of
Criminal
Procedure, 1973- Section 482 - Narcotics
Drugs & Substance Act,1985 -Sections 8C/20-b - 8-A/28-Quashing of-rejection
order passed by Trial Court to release the
truck-3
quintal
96
kg.
Ganja
was
recovered from the truck-a report for
confiscation had been forwarded by the
S.H.O. to D.M. but till date DM has not
started the proceedings of confiscation,
even after a lapse of one year- In absence
of initiation of any confiscation proceeding
or order, it is open to the concerned Court
to exercise its jurisdiction under Chapter
XXXIV
of
the
Code
of
Criminal
Procedure,1973-Thus, the impugned order
is liable to be quashed.(Para 1 to 16)

The application is allowed. (E-6)

List of Cases cited:

Manak Lal Vs Central Bureau of Narcotics (2019)
JCC Online M.P. 2031

## Text

428 INDIAN LAW REPORTS ALLAHABAD SERIES

19. It is noteworthy that in this case
the applicant having full knowledge that he
was wanted in this case as accused, neither
made him available for interrogation to the
I.O nor moved any form of bail application.
In
another
similar
matter
he
had
approached this Court taking shelter of the
verdict State through C.B.I. (supra) and
has been granted some relief.

20. In this case, it does not appear that
the application was moved by the I.O or the
the impugned order was passed by the
concerned Magistrate / Judge to provide the
accused in the custody of the I.O for the aid
in investigation. The Magistrate has issued
the non-bailable warrant for presentation of
the accused in the Court for 03.10.2022,
therefore the order passed by the concerned
Magistrate being in accordance with law is
not liable to be set aside. According to this
Court, the impugned order is correct in the
eye of law and the application is liable to
be rejected.

O R D E R

21. The Application U/s 482 is
dismissed accordingly.

22. A copy of this order be sent to
learned Special Chief Judicial Magistrate,
Meerut for information and necessary
action.
----------
(2023) 4 ILRA 428
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 37387 of 2022

Azeem Husain ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Manoj Kumar Gupta

Counsel for the Opp. Parties:
G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 482 - Narcotics
Drugs & Substance Act,1985 -Sections 8C/20-b - 8-A/28-Quashing of-rejection
order passed by Trial Court to release the
truck-3
quintal
96
kg.
Ganja
was
recovered from the truck-a report for
confiscation had been forwarded by the
S.H.O. to D.M. but till date DM has not
started the proceedings of confiscation,
even after a lapse of one year- In absence
of initiation of any confiscation proceeding
or order, it is open to the concerned Court
to exercise its jurisdiction under Chapter
XXXIV
of
the
Code
of
Criminal
Procedure,1973-Thus, the impugned order
is liable to be quashed.(Para 1 to 16)

The application is allowed. (E-6)

List of Cases cited:

Manak Lal Vs Central Bureau of Narcotics (2019)
JCC Online M.P. 2031
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Manoj Kumar Gupta,
learned counsel for the applicant, Sri
Pankaj Kumar Tripathi, learned A.G.A for
the State and perused the material available
on record.

2. This application under Section 482
Cr.P.C has been moved on behalf of the
applicant
to
quash
the
order
dated
08.09.2022 passed by Special Judge
(N.D.P.S Act) / A.S.J. F.T.C (Crime Against
Women) in Case Crime No. 163 of 2022 -
State Vs. Zubair and Others, under Section
4 All. Azeem Husain Vs. State of U.P. & Anr.
429
8-C/20-b (ii) (e) and 8-A/28 of N.D.P.S.
Act,
Police
Station
Ujhani,
District
Budaun, by which the release application of
Truck No. U.P.22-T-3585 has been rejected
and also for prayer to direct the Trial Court
to release the aforesaid truck.

3. In brief, facts of the case are that
the applicant is the recorded owner of the
impugned vehicle insured by the O.I.C,
which was searched and captured by the
Police on 26.03.2022 and three quintal 96
K.G. Ganja was recovered in 198 packets
and hence the vehicle was ceased under
Section 207 M.V. Act and was also taken to
the Police Station. The applicant moved an
application for release of the impugned
vehicle, which was rejected by the learned
Trial Judge, on the ground that a report has
been forwarded by the concerned Police
Station for confiscation of the impugned
vehicle in favour of the State.

4. Being aggrieved, this application
under Section 482 Cr.P.C has been filed by
the applicant.

5. On behalf of the State, S.I. Harpal
Singh has filed counter affidavit that the
aforesaid Truck was used in illegal
trafficking
of
contraband
narcotic
substances and for confiscation of the
same, a report dated 20.04.2022 has been
sent to the District Magistrate, Budaun. The
learned Trial Court has rightly rejected the
release application. The application is not
maintainable, hence the same be rejected.

6. A rejoinder affidavit has been
filed by the applicant, denying the
contends of the counter affidavit with
contention that applicant is the owner of
the vehicle and if any contraband is
received/recovered from the vehicle, the
truck driver will be responsible as it is
not possible for the applicant to monitor
the transportation of his vehicle all the
time.

7. The condition of the vehicle is
deteriorating day-by-day. The applicant
is ready to give undertaking that he will
produce the vehicle as and when it
would be required or ordered by the
court. Though, a report has been sent
for confiscation of the vehicle on
22.04.2022, but till date no notice with
regard to the proceeding of confiscation
of the vehicle has been received. Even
an application under the Right to
Information Act was moved by the
applicant on 14.10.2022, but there is no
reply to that as to whether any
proceeding was initiated in pursuant to
the report dated 20.4.2022 or not. The
applicant was neither present when the
vehicle was taken into possession by
the police nor he was accused as per
F.I.R and it is the driver, who is
responsible and who has been released
on bail. The applicant is not a person of
criminal in nature, he is a businessman
and does business very fairly. It is the
first time when his vehicle has been
ceased by the Police with contraband
substances. Hence the application be
allowed and the impugned truck be
released in favour of the applicant
during the pendency of the trial.

8. Learned counsel of either of the
parties has relied on Manak Lal Vs.
Central Bureau of Narcotics, 2019
JCC
Online
M.P.
2031,
without
showing name of the party which has no
relevancy in the matter.

9. It would be proper to reproduce
Section 60 of the N.D.P.S Act, which is as
under : -
430 INDIAN LAW REPORTS ALLAHABAD SERIES

"60.
Liability
of
illicit
drugs,
substances,
plants,
articles
and
conveyances to confiscation.

(1).
Whenever
any
offence
punishable under this Act has been
committed,
the
narcotic
drug,
psychotropic
substance,
controlled
substance, opium poppy, coca plant,
cannabis plant, materials, apparatus and
utensils in respect of which or by means of
which such offence has been committed,
shall be liable to confiscation.

(2).
Any
narcotic
drug
or
psychotropic substance 2[or controlled
substances] lawfully produced, imported
inter-State, exported inter-State, imported
into India, transported, manufactured,
possessed, used, purchased or sold along
with, or in addition to, any narcotic drug
or psychotropic substance 2[or controlled
substances] which is liable to confiscation
under
sub-section
(1)
and
there
receptacles, packages and coverings in
which any narcotic drug or psychotropic
substance 2[or controlled substances],
materials, apparatus or utensils liable to
confiscation under sub-section (1) is
found, and the other contents, if any, of
such
receptacles
or
packages
shall
likewise be liable to confiscation.

(3). Any animal or conveyance used
in
carrying
any
narcotic
drug
or
psychotropic substance 2[or controlled
substance], or any article liable to
confiscation under sub-section (1) or subsection (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."

10. According to the Sub Section (1),
if any offence has been committed under
the N.D.P.S Act, the Plants Articles and
Conveyances
shall
be
liable
for
confiscation. As per Sub Section (3), any
animal or conveyance used in carrying any
narcotic
and
drug
or
psychotropic
substance or controlled substance or any
article liable to be confiscated under SubSection (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 of the
owner himself, his agent, if any, and the
person in-charge of animal or conveyance
and the each of them had taken all
reasonable precaution against such use.

11. In this case, it is the case of the
applicant that he was a businessman and he
cannot supervise all time his vehicle. No
F.I.R. has been lodged against him. He was
not present on the spot or with the vehicle.
It was not in his knowledge that the driver
is
carrying
the
contraband
narcotics
substances. Therefore, an opportunity is
available to the applicant to prove that this
case is covered under the later part of Sub
Section (3).

12. So far as the confiscation
proceeding is concerned, it is very much
clear from the evidence on record that
though a report for confiscation had been
forwarded by the S.H.O. to D.M. Budaun,
on 20.04.2022, but till date the District
Magistrate, Budaun has not started the
proceedings of confiscation with regard to
the impugned vehicle. If the vehicle has not
been confiscated and no proceeding of
confiscation could be started, even after a
laps of one year, it is open to the concerned
Court to exercise its jurisdiction under
Chapter XXXIV of the Code of Criminal
Procedure.
4 All. Sanjeev Kumar & Ors. Vs. State of U.P. & Anr.
431

13. This Court is of the considered
view that in such a situation the concerned
court has right to dispose of the aforesaid
release application considering all the facts
and circumstances of the case and also as to
whether the applicant has been able to
establish the circumstances and grounds
enumerated in the later part of the Sub
Section (3) of Section 60 of the N.D.P.S
Act or not.

14. There is also a reference of
Section 207 of the M.V. Act that the vehicle
has been ceased under Section 207 of the
M.V. Act, for which the reports may be
obtained and a release application may be
moved before the concerned court or before
the concerned R.T.O and the fine amount
imposed (if any) under Section 207 of the
M.V. Act, may be deposited. So far as the
release of this vehicle as case property of
the related criminal case is concerned, in
absence of initiation of any confiscation
proceeding or order, the release application
can be dealt with under Chapter XXXIV of
the Code of Criminal Procedure.

15. On the basis of the above
discussion, this court is of the considered
view that the impugned order is liable to be
quashed.

O R D E R

16. This application under Section
482 Cr.P.C is allowed and the impugned
order dated 08.08.2022 is hereby quashed.
The learned Special Judge / A.S.J. (F.T.C) /
Special Judge (N.D.P.S Act) (Crime against
women), Budaun, is directed to decide the
release application moved by the applicant
earlier, afresh.

17. In view of this judgment, the
learned trial Court shall receive a recent
report as to whether any confiscation
proceeding has been started by the District
Magistrate, Budaun, or not or any order in
this regard has been passed or not. In case,
a report is submitted to the learned trial
court that a confiscation proceeding has
been started or any order with regard to
confiscation has been passed by the District
Magistrate, Budaun, this order for deciding
the release application afresh would not be
effective, otherwise the learned trial Court
shall
decide
the
release
application
exercising its power under Chapter XXXIV
of the Code of Criminal Procedure.
----------
(2023) 4 ILRA 431
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 39616 of 2022

Sanjeev Kumar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Atharva Dixit, Sri Pranav Tiwary

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Indian Penal Code,
1860-Sections 498A, 304B, & 302 - Dowry
Prohibition
Act,
1961-Section
3⁄4homicidal death-applicant no. 3 is in
hospital and due to this reason the
applicants were unable to lead defence
evidence-application moved to provide an
opportunity to lead the evidence was
rejected-the burden lies on the accusedapplicants to discharge their duty that
they have not committed dowry death,
therefore, the
production
of
defence
evidence is must and essential-Therefore,
only on this ground that the defence has