# Shivam Singh v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Criminal Misc. Application U/S 482 No. 19621 of 2021
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-singh-v-state-of-u-p-anr-48754
- **Pages:** 4

## Headnote

G.A., Sri Ashish Pandey

A.
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Sections 52 (1) &
63 - Vehicle seized during commission of
crime - Release of vehicle sought for -
Remedy - Held, proper remedy available is
to move application u/s 63 of N.D.P.S. Act
before the trial court - The applicant
256 INDIAN LAW REPORTS ALLAHABAD SERIES
wrongly moved before the Magistrate -
High Court found no infirmity in the
impugned
order,
though
accepted
necessity of release of vehicle to avoid its
damage. (Para 5 and 6)
Application disposed off. (E-1)
List of Cases cited:-

## Text

8 All. Shivam Singh Vs. State of U.P. & Anr.
255
are (1) where the allegations made in the
FIR or complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute any
offence or make out a case against the
accused (2) where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against the
accused, (3) where there is an express legal
bar engrafted in any of the provisions of
Code of Criminal Procedure or the
concerned Act to the institution and
continuance of the proceedings. But this
power has to be exercised in a rare case and
with great circumspection".

7. On perusal of material brought on
record, it transpires that charge sheet
submitted by the IO under Sections 323 &
504 IPC only with regard to noncognizable case. Instead of treating as
complaint, cognizance has been taken by
the Magistrate as State case, which is not
permissible
under
law.
Although,
Magistrate has not specifically mentioned
in the impugned order that the case should
be proceeded under which manner State or
complaint, but in absence of such specific
mention on the charge sheet, it may be
presumed that the case shall be proceeded
as State case, which is not permissible
under law.

8. In view of above discussion,
application has substance and is liable to be
allowed in part. This is a fit case in which
inherent power should be exercised and
there appears abuse of process of law.
Application under Section 482 Cr.P.C. is
allowed in part and impugned order dated
07.11.2019 by which, the cognizance was
taken is hereby quashed with a direction to
proceed with the matter as complaint case.
The Magistrate shall proceed with the
matter as complaint case as laid down in
Explanation of Section-2(d) Cr.P.C. Rest
prayer is refused.

9. It is made clear that in such
situation, statement of the complainant
under Section 200 and 202 Cr.P.C. is not
required. No need to pass separate
cognizance/summoning order but learned
Magistrate should specify that said charge
sheet shall be proceeded like a complaint
case. Such principle is applicable in all
cases relating to non-cognizance cases.

10. The Registrar General is directed
to circulate this order throughout the State
for effective compliance by all concerned.
----------
(2022) 8 ILRA 255
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Misc. Application U/S 482 No. 19621 of
2021

Shivam Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Jata Shankar Pandey

Counsel for the Opposite Parties:
G.A., Sri Ashish Pandey

A.
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Sections 52 (1) &
63 - Vehicle seized during commission of
crime - Release of vehicle sought for -
Remedy - Held, proper remedy available is
to move application u/s 63 of N.D.P.S. Act
before the trial court - The applicant
256 INDIAN LAW REPORTS ALLAHABAD SERIES
wrongly moved before the Magistrate -
High Court found no infirmity in the
impugned
order,
though
accepted
necessity of release of vehicle to avoid its
damage. (Para 5 and 6)
Application disposed off. (E-1)
List of Cases cited:-
1. Sunder Bhai Ambalal Desai Vs St. of Guj. ;
2003 (46) A.C.C. 223
2. Crl. Rev. Pet No. 1449 of 2018; Revision Vs
Shajahan decided by the Kerala High Court on
28.10.2019
(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Heard Sri Jata Shankar Pandey,
learned counsel for the applicant, Sri
Ashish Pandey appearing for NCB as well
as Sri Rajeshwar Singh, Rakesh Chand
Srivastava, Sri Amit Sinha, learned A.G.A.
assisted by Rajnish Pandey and Sri
Madnesh Prasad Singh, learned State Law
Officer for the State and perused the
record.

2. The present application has been
filed for quashing the order dated 4.9.2021
passed by Additional Sessions Judge, Court
No. 10, Allahabad in N.C.R. No. UPAD01007233/2021 (State/NCB Vs. Vinod
Yadav), under sections 8/20 N.D.P.S. Act,
arsing out of Case Crime no. 188 of 2021,
Police
Station
Shankargarh,
District
Prayagraj.

3. Learned counsel for the applicant
contends
that
the
vehicle
bearing
registration No. UP62 AT8908 belongs to
the applicant and no useful purpose would
be served in keeping the vehicle at police
station which would result in the vehicle
becoming junk. Learned counsel for the
applicant has relied upon a decision of
Hon'ble Apex Court in the matter of
Sunder Bhai Ambalal Desai Vs. State of
Gujarat 2003 (46) A.C.C. 223 wherein it
been held:-

"that any vehicle can not be
permitted to be kept for a long time in the
premise of police station and allowed to be
destroyed. The fact and circumstance of
this case is different from the fact and
circumstance of SunderBhai Ambalal
Desi's case (Supra), hence the impugned
order passed by learned Judge can not be
said illegal or improper. However, it is
made clear that if the application for
confiscation has not been filed or is not
pending or the vehicle has still not been
confiscated the revisionist may file fresh
application for release of his vehicle in
order to avoid the damage before he court
below and the learned Judge may consider
the application according to provision of
law".

4. In support of his contention,
learned counsel for N.C.B. as well as
learned A.G.A. for the State has also placed
the reliance of Revision Vs. Shajahan
decided on 28.10.2019 in Crl. Rev. Pet No.
1449 of 2018 decided by the Kerala High
Court, whereof the paragraph No. 4 and 5
of the judgement is quoted below:

4. The main contention urged by
the learned counsel for petitioners is that
the conveyances involved in transportation
of
narcotic
drugs
or
psychotropic
substances may not belong to the actual
transporter, in which event, confiscation
and destruction by the competent officer
without any enquiry in that regard may
affect the rights of the owner of such
vehicle. In fact, S.63 of the Act had
provided for a procedure in making
confiscations. S.63 gives the power to the
Court to decide whether any article or
8 All. Shivam Singh Vs. State of U.P. & Anr.
257
thing seized under the Act is liable to be
confiscated in terms of Sections 60, 61 or
62 of the Act. Before the amendment to
Section 52A, conveyance was not included
as an item which should be seized and
disposed. The very fact that conveyance
had been incorporated in the amendment
itself
indicates
that
the
Government
intended to provide a special procedure to
deal with such conveyance, while taking
into account the fact that most of the
transportation are done in conveyances
which
itself
is
defined
Crl.R.P.No.1440/2018 & conn.cases u/s
2(viii) as meaning "a conveyance of any
description
whatsoever
including
any
aircraft, vehicle or vessel." Therefore, if
any vehicle is involved in transportation of
narcotic drug, psychotropic substance or
controlled substance, such vehicles also
could be seized and disposed of in terms of
S.52A(1) of the Act. S.63 was a special
procedure available at the inception of the
Act and when the statute had been amended
giving the power of disposal of narcotic
drugs, psychotropic substances, controlled
substances or conveyances to a special
officer, he will have to act in accordance
with the procedure prescribed under the
Act or the Rules framed thereunder.

5. When a Special Act prescribes
the procedure for dealing in specified goods
and the NDPS Act being a special statute and
latter in time, the provisions of the special
statute has to be followed by the Magistrate.
In other words, the Magistrate may not have
jurisdiction to entertain a petition u/s 451 of
Cr.P.C. in the light of the special provision
made u/s 52A of the NDPS Act. In fact, in
Mohanlal (supra), the Apex Court had issued
certain directions which are extracted
hereunder:-

"31. To sum up we direct as under:

Crl.R.P.No.1440/2018
&
conn.cases 31.1. No sooner the seizure of
any narcotic drugs and psychotropic and
controlled substances and conveyances is
effected, the same shall be forwarded to the
officer in charge of the nearest police
station or to the officer empowered under
Section 53 of the Act. The officer concerned
shall then approach the Magistrate with an
application under Section 52-A(2) of the
Act, which shall be allowed by the
Magistrate as soon as may be required
under sub-section (3) of Section 52-A, as
discussed by us in the body of this judgment
under the heading "seizure and sampling".
The sampling shall be done under the
supervision of the Magistrate as discussed
in Paras 15 to 19 of this order.

31.2. The Central Government
and its agencies and so also the State
Governments shall within six months from
today take appropriate steps to set up
storage facilities for the exclusive storage
of seized narcotic drugs and psychotropic
and controlled substances and conveyances
duly equipped with vaults and doublelocking system to prevent theft, pilferage or
replacement of the seized drugs. The
Central
Government
and
the
State
Governments shall also designate an
officer each for their respective storage
facility and provide for other steps,
measures as stipulated in Standing Order
No. 1 of 1989 to ensure proper security
against theft, pilferage or replacement of
the seized drugs. 31.3. The Central
Government and the State Governments
shall be free to set up a storage facility for
each district in the States and depending
upon the extent of seizure and store
required, one storage facility for more than
one districts.

31.4. Disposal of the seized drugs
currently
lying
in
the
Crl.R.P.No.1440/2018 & conn.cases Police
Malkhanas and other places used for
storage shall be carried out by the DDCs
258 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned in terms of the directions issued
by us in the body of this judgment under the
heading "disposal of drugs".

5. After hearing the learned counsel
for the applicant, learned counsel for N.C.B
as well as A.G.As., and after perusing the
order impugned as well as averments made
in the present application, this Court is of
the opinion, that the arguments as raised by
learned counsel for the applicant has
substance that the vehicle shall be released
in order to avoid damage but the applicant
has been wrongly moved before the learned
Magistrate. Such vehicle also could be
seized and disposed of in terms of Section
52A (1) of the Act. However, the proper
remedy available to the applicant to move
application under section 63 of N.D.P.S.
Act before the trial court, which is quoted
below:-

" 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,
1[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.

6. Accordingly, there is no infirmity in
the
impugned
order.
However,
the
contention advanced by learned counsel for
the applicant is acceptable up to the extent
that to avoid damage of the vehicle, the
release of vehicle is necessary.

7. Considering the aforesaid judgments
and discussions section 52A(1) and Section
63 of the N.D.P.S. Act are attracted.
Therefore, the application is disposed off
with liberty to the applicant to move an
appropriate application under section 52A(1)
and section 63 of the N.D.P.S. Act before
the trial court, the same shall be entertained
by the court below in accordance with law,
as expeditiously as possible.
----------
(2022) 8 ILRA 258
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Misc. Application U/S 482 No. 26024 of
2021

Miss Priti Pandya ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties