# Matloob Husain Revisionist v. State of U.P

- **Citation:** (2024) 12 ILRA 808
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-28
- **Case number:** Criminal Revision No. 2136 of 2024
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matloob-husain-revisionist-v-state-of-u-p-51356
- **Pages:** 7

## Headnote

Law-The
Code
of
Criminal
Procedure,1973
-
Section
397
-The
Narcotic
Drugs
and
Psychotropic
Substance Act,1985 - Sections 60 & 63-
Criminal Revision against the impugned order
dismissing the release application filed by the
owner of truck--- There is no report on record
which could suggests that any proceeding for
confiscation of said vehicle under Section 60 of
the Act is pending before the competent
authority, even there is no specific report that
the competent authority has been moved by the
police for confiscation of the vehicle. No useful
purpose of law appears to be served by keeping
the
vehicle
parked
at
police
station
in
unattended position which is bound to cause
deterioration
in
its
value,
utility
and
serviceability--- Learned trial court has not
considered
the judgment of the Hon'ble
Supreme Court in Sunderbhai Ambalal Desai v/s
12 All. Matloob Husain Vs. State of U.P.
809
St. of Gujarat reported in 2002 (10) SCC 283---
Impugned order is set-aside.

Revision allowed. (E-15)

List of Cases cited:

## Text

808 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused."

29. Once we analyse the evidence on
the touchstone laid down by the Supreme
Court in Sharad Birdhichand Sarda (supra)
we find that chain of circumstances is not
sufficiently connected such that it leads to
the
hypothesis
of
guilt
exclusively
attributed to the accused appellants and the
chain is left incomplete.

30. The alternate hypothesis consistent
with the innocence of accused appellants
cannot be ruled out otherwise. In such view
of the matter, the finding of conviction and
consequential sentence of the accused
appellants cannot be sustained.

31. We have also perused the
judgment of trial court and we find that
various arguments advanced on behalf of
accused appellants have not been dealt
with, in correct perspective. Evidence on
record of this case has not been carefully
examined by the trial Court nor the inherent
flaws in the evidence of PW-1 and
inadequacacies in the evidence of recovery
are noticed. Relevant aspects have not been
factored in while convicting the accused
persons. We, therefore, cannot approve of
the conclusions drawn by the trial Court
against the appellants.

32. In that view of the matter, this
appeal succeeds and is allowed. The
judgment of conviction and sentence dated
11.10.2022 and 28.10.2022, passed by
Special Judge SC/ST Act, IInd Additional
District & Sessions Judge, Farrukhabad in
Special Sessions Trial No.08 of 2005,
arising out of Case Crime No.598 of 2003,
Police Station Mohammadabad, District
Farrukhabad is set aside. The accused
appellants shall be released forthwith,
unless they are wanted in any other case,
subject to compliance of Section 437-A
Cr.P.C.
----------
(2024) 12 ILRA 808
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2024
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2136 of 2024

Matloob Husain ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Janardan Yadav

Counsel for the Opposite Party:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure,1973
-
Section
397
-The
Narcotic
Drugs
and
Psychotropic
Substance Act,1985 - Sections 60 & 63-
Criminal Revision against the impugned order
dismissing the release application filed by the
owner of truck--- There is no report on record
which could suggests that any proceeding for
confiscation of said vehicle under Section 60 of
the Act is pending before the competent
authority, even there is no specific report that
the competent authority has been moved by the
police for confiscation of the vehicle. No useful
purpose of law appears to be served by keeping
the
vehicle
parked
at
police
station
in
unattended position which is bound to cause
deterioration
in
its
value,
utility
and
serviceability--- Learned trial court has not
considered
the judgment of the Hon'ble
Supreme Court in Sunderbhai Ambalal Desai v/s
12 All. Matloob Husain Vs. State of U.P.
809
St. of Gujarat reported in 2002 (10) SCC 283---
Impugned order is set-aside.

Revision allowed. (E-15)

List of Cases cited:

1. Sunderbhai Ambalal Desai Vs St. of Guj.
reported in 2002 (10) SCC 283

2. Matter Under Article 227 No. 3077 of 2023
(Kanhaiya Yadav Vs St. of U.P. & anr.).

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Revision has been
preferred against the order dated 10.4.2024
passed by Additional District and Session
Judge, Court no. 6, Azamgarh in Criminal
Misc. Case No. 01 of 2024 arising out of
Case Crime No. 161 of 2023, under section
8/20 N.D.P.S. Act, P.S. Tarwan, District
Azamgarh. By the impugned order trial
court has dismissed the release application
filed by the revisionist claiming himself as
registered
owner
of
truck
bearing
Registration No. U.P. 21-AN-5992. The
said truck/container has been seized by the
police on 22.6.2023 under Section 8/20
N.D.P.S. Act on charges of carrying illicit
Ganja of 20 Kg 500 gram quantity. The
revisionist was arrested by police from the
truck
and
said
contraband
and
Rs.
3,52,000/- Cash were recovered from his
possession.

2. Heard learned counsel for the
revisionist, learned AGA for the State and
perused the record.

3. Learned counsel for the revisionist
submitted that revisionist has been falsely
implicated in the case. He is registered
owner of the truck and which is only source
of livelihood of the revisionist. The
revisionist has already been released on
bail in Case Crime No.161 of 2023, under
Section 8/20 of Narcotic Drugs and
Psychotropic Substance Act, Police Station
Tarwa, District Azamgarh by this Court on
17.8.2023
in
Criminal
Misc.
Bail
Application No. 34627 of 2023 whereby
revisionist has been released on bail in said
offence on the ground that procedure
prescribed in the Rule 10(1) of the Narcotic
Drugs
and
Psychotropic
Substances
(Seizure, Storage, Sampling and Disposal)
Rules, 2022 have been violated. The police
has seized the truck of the revisionist and
fraudulently framed case under Section
8/20 NDPS Act. There is no report
regarding
initiation
or
pendency
of
proceedings under sections 60 and 63
NDPS with regard to said contraband. The
vehicle of the revisionist has been wrongly
seized by the trial court without assigning
any cogent reason and by cryptic manner
impugned order has been passed which is
not sustainable under law. The revisionist
has no criminal history to his credit prior to
alleged incident.

4. It is further submitted that the
vehicle was never used in transportation of
illicit contraband under NDPS Act. The
utility and serviceability of the vehicle is
being rapidly deteriorated due to its parking
at police station campus in unattended
manner for such a long period and there is
danger
of
its
being
rusted
and
inserviceable. He undertakes to maintain
the character and colour of the vehicle if
same is directed to be released in favour of
the revisionist by the order of this Court.
He undertakes to produce the vehicle on the
direction of the Court on his own expenses.
The revisionist has wrongly been made
accused in the case and vehicle has been
seized in violation of mandatory provisions
of the act. The vehicle has not been
confiscated as yet by the competent court in
810 INDIAN LAW REPORTS ALLAHABAD SERIES
the NDPS, Act. Therefore, it is prayed that
the vehicle may kindly be released in
favour of the revisionist.

5. Lastly, in support of his contention,
learned counsel for the revisionist placed
reliance on judgement of Hon'ble Supreme
Court passed in Sunderbhai Ambalal
Desai vs State of Gujarat reported in 2002
(10) SCC 283 and a judgement of this
Court passed in Matter Under Article 227
No. 3077 of 2023 (Kanhaiya Yadav vs.
State of U.P. and Another).

6. Per contra learned A.G.A. opposed
the prayer for release of the vehicle and
submitted that no illegality or perversity in
the impugned order passed by the trial
court, by which release application filed by
the applicant has been dismissed. It is
further submitted that revisionist was
arrested from the spot and from his
possession 20 kg 500 gram Ganja which is
above the commercial quantity, has been
recovered. The revisionist is registered
owner of the alleged vehicle.

7. Section 20 NDPS Act provides
punishment for contravention in relation to
cannabis plant and cannabis which reads as
under:-

"20.
Punishment
for
contravention in relation to cannabis
plant and cannabis.-

Whoever, in contravention of any
provision of this Act or any rule or order
made or condition of licence granted
thereunder,--

(a) cultivates any cannabis plant;
or

(b)
produces,
manufactures,
possesses, sells, purchases, transports,
imports inter-State, exports inter-State or
uses cannabis,

shall be punishable,--

1[(i) where such contravention
relates
to
clause
(a)
with
rigorous
imprisonment for a term which may extend
to ten years, and shall also be liable to fine
which may extend to one lakh rupees; and

(ii) where such contravention
relates to sub-clause (b),--

(A) and involves small quantity,
with rigorous imprisonment for a term
which may extend to 2[one year], or with
fine which may extend to ten thousand
rupees, or with both;

(B) and involves quantity lesser
than commercial quantity but greater than
small quantity, with rigorous imprisonment
for a term which may extend to ten years,
and with fine which may extend to one lakh
rupees;

(C) and involves commercial
quantity, with rigorous imprisonment for a
term which shall not be less than ten years
but which may extend to twenty years and
shall also be liable to fine which shall not
be less than one lakh rupees but which may
extend to two lakh rupees:

Provided that the court may, for
reasons to be recorded in the judgment,
impose a fine exceeding two lakh rupees."

8. Section 52A of NDPS Act,
provides for Disposal of seized narcotic
drugs and psychotropic substances, which
may be reproduced as under:-

"The Central Government may,
having regard to the hazardous nature,
vulnerability
to
theft,
substitution,
constraint of proper storage space or any
other relevant consideration, in respect of
any
narcotic
drugs,
psychotropic
substances,
controlled
substances
or
conveyances, by notification in the Official
Gazette, specify such narcotic drugs,
psychotropic
substances,
controlled
12 All. Matloob Husain Vs. State of U.P.
811
substances or conveyance or class of
narcotic drugs, class of psychotropic
substances, class of controlled substances
or conveyances, which shall, as soon as
may be after their seizure, be disposed of
by such officer and in such manner as that
Government may, from time to time,
determine after following the procedure
hereinafter specified.

(2) Where any narcotic drugs,
psychotropic
substances,
controlled
substances or conveyances] has been
seized and forwarded to the officer-incharge of the nearest police station or to
the officer empowered under section 53, the
officer referred to in sub-section (1) shall
prepare an inventory of such narcotic
drugs, psychotropic substances, controlled
substances or conveyances containing such
details relating to their description, quality,
quantity, mode of packing, marks, numbers
or such other identifying particulars of the
narcotic drugs, psychotropic substances,
controlled substances or conveyances or
the packing in which they are packed,
country of origin and other particulars as
the officer referred to in sub-section (1)
may consider relevant to the identity of the
narcotic drugs, psychotropic substances,
controlled substances or conveyances in
any proceedings under this Act and make
an application, to any Magistrate for the
purpose of-

(a) certifying the correctness of
the inventory so prepared; or

(b) taking, in the presence of such
magistrate, photographs of 4[such drugs,
substances or conveyances and certifying
such photographs as true; or

(c)
allowing
to
draw
representative samples of such drugs or
substances, in the presence of such
magistrate and certifying the correctness of
any list of samples so drawn.

(3) Where an application is made
under sub-section (2), the Magistrate shall,
as soon as may be, allow the application.

(4)
Notwithstanding
anything
contained in the Indian Evidence Act, 1872
(1 of 1972) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat
the innventory, the photographs of narcotic
drugs, psychotropic substances, controlled
substances or conveyances] and any list of
samples drawn under sub-section (2) and
certified by the Magistrate, as primary
evidence in respect of such offence."

9. Section 60 of the NDPS Act,
provides for confiscation of the illicit
drugs, substances, plants, articles and
conveyances involved in an offence under
the act, which reads as under:-

" 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
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
or
controlled
substances] which is liable to confiscation
under sub-section (1) and the receptacles,
packages and coverings in which any
narcotic drug or psychotropic substance
2[or controlled substances], materials,
812 INDIAN LAW REPORTS ALLAHABAD SERIES
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
substances], 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. Section 63 of the NDPS Act,
provides
for
procedure
and
making
confiscation, which reads as under:-

"63.
Procedure
in
making
confiscations.-(1) In the trial of offences
under this Act, whether the accused is
convicted or acquitted or discharged, the
court shall decide whether any article or
thing seized under this Act is liable to
confiscation under section 60 or section 61
or section 62 and, if it decides that the
article
is
so
liable,
it
may
order
confiscation accordingly.

(2) Where any article or thing
seized under this Act appears to be liable to
confiscation under section 60 or section 61
or section 62, but the person who
committed the offence in connection
therewith is not known or cannot be found,
the court may inquire into and decide such
liability, and may order confiscation
accordingly:

Provided
that
no
order
of
confiscation of an article or thing shall be
made until the expiry of one month from the
date of seizure, or without hearing any
person who may claim any right thereto
and the evidence, if any, which he produces
in respect of his claim:

Provided further that if any such
article or thing, other than a narcotic drug,
psychotropic
substance
5[controlled
substance], the opium poppy, coca plant or
cannabis plant is liable to speedy and
natural decay, or if the court is of opinion
that its sale would be for the benefit of its
owner, it may at any time direct it to be
sold; and the provisions of this sub-section
shall, as nearly as may be practicable,
apply to the net proceeds of the sale."

11. Perusal of Section 63 provides that
the question of confiscation of vehicle shall
be decided by trial court, whether the
accused is convicted or acquitted or
discharge. In present case this is an
admitted fact that trial is still pending and it
is likely to take considerable time to come
to its logical end. Hon'ble Ambika lal Desai
considered section 451/457 Cr.P.C. which
provides for disposal of case property
seized by police and involved in an
offence. Hon'ble Court held section 451
Cr.P.C. clearly empowers the court to pass
appropriate orders with regard to such
property:-

1. for the proper custody pending
conclusion inquiry or trial.

2. to order it to be sold or
otherwise disposed of after recording such
evidence as it think necessary;

3. if the property is subject to
speedy and natural decay to dispose of the
same.
12 All. Matloob Husain Vs. State of U.P.
813

12. In paragraph nos. 7, 17 and 18,
Hon'ble Court has 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 panchanama
before handing over possession of 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 properly 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.

17. 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.

18. In case where the vehicle is
not claimed by the accused, owner, or the
insurance company or by 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
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 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 vehicle 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."

13. In the present case there is no
report on record which could suggests that
any proceeding for confiscation of said
vehicle under Section 60 of the Act is
pending before the competent authority,
even there is no specific report that the
competent authority has been moved by the
police for confiscation of the vehicle. No
useful purpose of law appears to be served
by keeping the vehicle parked at police
station in unattended position which is
bound to cause deterioration in its value,
utility and serviceability.

14. Learned trial court has dismissed
the
application
for
release
without
considering all these issues mainly on the
ground that vehicle has been seized under
the provisions of NDPS Act. Learned trial
court has not considered the judgment of
the Hon'ble Supreme Court in Sunderbhai
Ambalal Desai vs State of Gujarat
reported in 2002 (10) SCC 283 in which
procedure for release of the vehicles which
are seized by the police under some offence
has been provided.

15. The impugned order is not
sustainable under law as it is vitiated by
illegality. The vehicle is liable to be
released in favour of the revisionist who is
registered owner of the vehicle, subject to
certain conditions.

16. The impugned order is set-aside.
The trial court is directed to release the
814 INDIAN LAW REPORTS ALLAHABAD SERIES
vehicle in favour of the revisionist during
pendency of trial after taking personal bond
and two sureties each in the like amount to
the satisfaction of the court concerned and
take undertaking to produce the vehicle
before the court or competent authority for
confiscation as the case may be, as and
when required. The trial court may also add
certain other conditions for release of the
vehicle as provided in judgment of Hon'ble
Supreme Court Sunderbhai Ambalal Desai
vs State of Gujarat (supra).

17.
The
revision
is
allowed
accordingly.
----------
(2024) 12 ILRA 814
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2024
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 5550 of 2023

Kailash Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Amarnath Tripathi

Counsel for the Opposite Parties:
G.A., Rajesh Kumar

A. Criminal Law - Criminal Procedure
Code,1973 - Section 319 - Evidence Act,
1872 - Section 10 - Summon of the
proposed accused as additional accused
was sought for - Allegation of attributing
the role of chief conspirator - There is
nothing in the evidence of any witness to
show that there was meeting of minds
amongst proposed accused (respondent
nos. 2 and 3) and other accused persons
facing trial - Effect - There is only
allegation against respondent nos. 2 and 3
that they were inimical to the deceased -
Relevancy
-
Held,
the
allegations/
acquisitions made in the FIR or evidence
of witness cannot form an evidence of
conspiracy unless there is some evidence
of conspiracy which comes under purview
of Section 10 of Evidence Act to connect
the proposed accused with the other
accused persons who are projected as
perpetuates
of
crime
in
the
case.
Allegation cannot form basis of prove and
learned trial court has rightly declined to
issue process against respondent nos. 2
and 3 in this case. (Para 18 and 19)

Criminal Revision dismissed. (E-1)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun.; 2014 (3) SCC
92

2. Bhagwan Swaroop Vs St. of Mah.; AIR 1965
SC 682

3. Criminal Appeal No. 1049 of 2006; Siva @
Jeeva @ Mottai Khadar @...Vs St. by Inspector
of Police decided on 16.4.2019

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Instant criminal revision has been
preferred against the impugned order dated
4.8.2023 passed by learned Additional
District and Sessions Judge, Court No.
14/Special Judge (Gangster Act), Varanansi
in S.T. No. 450 of 2021 arising out of Case
Crime No. 145 of 2020, P.S. Jaitpura,
District Varanasi. By the impugned order
learned trial court has dismissed the
application 34-kha under section 319
Cr.P.C. filed by the revisionist wherein
prayer
has
been
made
to
summon
respondent nos. 2 and 3, who were named
in the F.I.R. as conspirator, as additional