# Sonu Kumar Gupta v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 2 ILRA 1137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Application u/s 482 No. 9911 of 2022
- **Bench:** Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-kumar-gupta-v-state-of-u-p-anr-opp-parties-49706
- **Pages:** 5

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic Substances Act , 1985Sections 52-A, 53, 60 & 63- Code of Criminal
Procedure, 1973-Sections 451 & 457-Release
Application of the vehicle impugned-FIR against 6
named accused-four accused persons caught in
the three wheeler vehicle of the Applicant with
certain bottles of cough syrup without any bill and
voucher-Applicant not apprehended on the spot -
he is the owner of the vehicle with all valid
documents-falsely
implicated-vehicles
to
be
confiscated only after the accused is convicted or
acquitted or discharged-after trial has been
completed-Provisions of Cr.P.C. shall apply -no
provision debarring the release of vehicle seized
during trial-temporary release of the vehicle seized
provided
u/s
451
Cr.P.C.-vehicle
is
parked
unattended
-it
will
deteriorate
as
parked
unattended since last more than 1 year and 10
months-if not given interim custody- the sun and
rain would damage it-Applicant not charge sheeted
yet-Vehicle to be released in favour of the
Applicant.
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Application allowed. (E-9)

List of Cases cited:

Sunderbhai Ambalal Desai Vs St. of Gujrat
2003(1) RCR (crl) 380

## Text

2 All. Sonu Kumar Gupta Vs. State of U.P. & Anr.
1137

18. Therefore, from the discussion
made above, it is evident that right to
speedy trial of an accused is a fundamental
right enshrined under Article 21 of the
Constitution of India and if Court finds that
it has been violated then proceeding
pending against the applicant should be
quashed
but
only
after
considering
following factors:-

(i) whether delay can be attributed to
the accused himself

(ii) nature of offence

(iii) whether quashing is in the interest
of justice.

(iv) whether inordinate delay can be
termed as oppressive and unwarranted.

19. In case at hand, from the perusal
of the record it appears that the inordinate
delay in completion of the trial cannot be
attributed to the accused applicant as ordersheet suggests that he is regularly attending
the court either in person or through his
counsel and trial of the case relates to
Section 39/49B of Electricity Act, which
cannot be said to be a heinous crime and
trial of the same is pending since the year
2004 i.e. for last about 18 years and
prosecution
failed
to
provide
any
exceptional circumstance to condone such
inordinate delay. Therefore, unexplained
inordinate delay of 18 years should be
termed as oppressive and unwarranted.
Therefore,
under
the
facts
and
circumstances of the case, I am of the view
that fundamental right to speedy trial of
applicant has been violated.

20. From the discussion made above,
this Court is of the view that further
continuance of the criminal proceedings
pending
against
the
applicant
is
unwarranted, therefore, to secure the ends
of justice proceeding pending against the
applicant in the present matter is hereby
quashed.

21. The instant application stands
allowed.
----------
(2023) 2 ILRA 1137
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J

Application u/s 482 No. 9911 of 2022

Sonu Kumar Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Alok Kumar

Counsel for the Opp. Parties:
G.A.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic Substances Act , 1985Sections 52-A, 53, 60 & 63- Code of Criminal
Procedure, 1973-Sections 451 & 457-Release
Application of the vehicle impugned-FIR against 6
named accused-four accused persons caught in
the three wheeler vehicle of the Applicant with
certain bottles of cough syrup without any bill and
voucher-Applicant not apprehended on the spot -
he is the owner of the vehicle with all valid
documents-falsely
implicated-vehicles
to
be
confiscated only after the accused is convicted or
acquitted or discharged-after trial has been
completed-Provisions of Cr.P.C. shall apply -no
provision debarring the release of vehicle seized
during trial-temporary release of the vehicle seized
provided
u/s
451
Cr.P.C.-vehicle
is
parked
unattended
-it
will
deteriorate
as
parked
unattended since last more than 1 year and 10
months-if not given interim custody- the sun and
rain would damage it-Applicant not charge sheeted
yet-Vehicle to be released in favour of the
Applicant.
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Application allowed. (E-9)

List of Cases cited:

Sunderbhai Ambalal Desai Vs St. of Gujrat
2003(1) RCR (crl) 380

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. By moving this application under
section 482 Cr.P.C. the applicants seek to
invoke the inherent jurisdiction of this
court to quash the order dated 24.3.2022 in
criminal misc. case no. 44 of 2022, State
Vs.Pawan Kumar and others, arising out of
case crime no. 91 of 2021 under section
8/21 NDPS Act, police station Ghoorpur
District Allahabad. A further prayer is made
to release three wheeler vehicle no. UP-65TD-9967 in favour of the applicant relating
to the above mentioned case.

2. Heard learned counsel for the
applicant, learned A.G.A. and perused the
record.

3. Learned counsel for the applicant
submits that the FIR was lodged against six
named accused persons under section 8/21
NDPS Act on 11.3.2021 with the allegation
that in three wheeler vehicle no. U.P.-65TD-9967 four accused persons Pawan,
Kuldeep Kumar, Mohd. Nasir and Sonu @
Mohd. Hasim were apprehended by the
police with 49 boxes, total 5807 bottles of
onerex cc cough syrup, without any bill and
voucher, being transported from New
Vridhi Farma Saptnagar Madagin, Varanasi
to M/s Shyam medical store Gauhaniya
Riva Road Jasra Prayagraj.

4. It is argued that each bottle
contained 10 ml. codine phosphate. The
total codine phosphate quantity could be
said to be 580.7 g. which is much less than
the commercial quantity of 1 kg. The
applicant was neither apprehended by the
police on the spot in possession of any
material relating to NDPS Act, nor the
material was being supplied by him or it
was for him. He is just the owner of the
three wheeler no. U.P.-65-TD-9967 with all
valid documents. He has been falsely
implicated in the present case. He is an
innocent, law abiding and peace loving
person, having no criminal history. The
applicant moved his release application
before the trial court, which was dismissed
vide order dated 24.3.2022.

5. His vehicle is parked at the
premises of police station since 11.3.2021.
He has complete documents of the vehicle.
GST invoice and account statement of the
syrup recovered are also annexed with the
paper book. It is alleged by the police that
no receipt was shown regarding the
medicine recovered, whereas the police
concerned did not consider the receipt of
the medicines at the time of recovery.

6. Learned A.G.A. opposed the
application and submitted that the bill
placed before the court does not bear
signature of any person. In the recovered
syrup the quantity of codine was 580.7 kg.
which is much higher than the permitted
commercial quantity of 1 kg. The applicant
is the vehicle owner, he is responsible for
the things supplied in his vehicle, unless he
proves otherwise. It is for him to establish
prima facie that his vehicle was being used
for
transportation
of
the
contraband
substance without his knowledge.

7. From the perusal of the record, it is
found that from three wheeler of the
applicant, the police had recovered 5807
bottles, each bottle containing 100 ml.
onerex cough syrup on the spot. The person
2 All. Sonu Kumar Gupta Vs. State of U.P. & Anr.
1139
on the three wheeler could not show the bill
and voucher of this cough syrup. Each
bottle of cough syrup contained 10 ml
codine phosphate and thus, total 58.07 kg
codine phosphate was found wherein its
permissible commercial quantity is 1 kg.
Admittedly,
the
applicant
was
not
apprehended by the police on the spot. He
is said to be the owner of the vehicle,
wherein this contraband substance is said to
have recovered. The prayer is made to
release vehicle no. UP-65-TD-9967. His
release application before the trial court is
said to have been rejected on 24.3.2022.

8. The trial court found that as the
contraband was recovered from the vehicle
of the applicant, so it is the presumption
that the applicant had the knowledge of
transportation of this contraband substance,
unless he proves otherwise. Admittedly, the
driver of the three wheeler vehicle has been
granted bail.

9. The provision regarding the release
of the vehicle in NDPS Act 1985 are
sections 52-A, 53, 60 and 63. Section 63 of
NDPS Act runs 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,
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

10. Thus, the vehicle is to be
confiscated only after the accused is
convicted or acquitted or discharged that
means that his trial has been completed.

11. Now the question arises that
during trial whether the vehicle can be
given in temporary custody of the real
owner of the vehicle. NDPS Act is silent
about the interim custody of the vehicle,
while in the code of criminal procedure
sections 451 and 457 speak of the custody
and disposal of the property pending trial.
Now the question arises whether these
sections of code of criminal procedure can
be applied to the interim custody of vehicle
seized under NDPS Act ? In this regard, it
is apposite to look into section 51 of NDPS
Act which runs as under;

51. Provisions of the Code of Criminal
Procedure, 1973 to apply to warrants,
arrests,
searches
and
seizures:-
The
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply, in
so far as they are not inconsistent with the
provisions of this Act, to all warrants issued
and arrests, searches and seizures made
under this Act.

12. Thus, the provisions of the code
of criminal procedure shall apply with
regard to seizure of any article or things
regarding NDPS Act, if they are not
inconsistent of provisions of the NDPS Act
and in NDPS Act, there is no provision
debarring the release of vehicle seized
under the act during trial as per provisions
of Cr.P.C. Thus the provision of section 451
of Cr.P.C. cannot be said to be inconsistent
with any specific provision under NDPS
Act, so this section of code of criminal
procedure will apply to the temporary
release of the vehicle seized under NDPS
Act as per the mandate under section 51 of
the NDPS Act. Section 451 Cr.P.C. runs as
under;

451. Order for custody and disposal
of property pending trial in certain
cases:- When any property is produced
before any Criminal Court during any
inquiry or trial, the Court may make such
order as it thinks fit for the proper custody
of such property pending the conclusion of
the inquiry or trial, and, if the property is
subject to speedy and natural decay, or if it
is otherwise expedient so to do, the Court
may, after recording such evidence as it
thinks necessary, order it to be sold or
otherwise disposed of.

13. Section 457 Cr.P.C. described the
procedure of police upon seizure of
property. This section runs as under;

"457. Procedure by police upon
seizure of property.- (1) Whenever the
seizure of property by any police officer is
reported
to
a
Magistrate
under
the
provisions of this Code, and such property
is not produced before a Criminal Court
during an inquiry or trial, the Magistrate
may make such order as he thinks fit
respecting the disposal of such property or
the delivery of such property to the person
entitled to the possession thereof, or if such
person cannot be ascertained, respecting
the custody and production of such
property.
(2) If the person so entitled is known, the
Magistrate may order the property to be
delivered to him on such conditions (if any)
as the Magistrate thinks fit and if such
person is unknown, the Magistrate may
detain it and shall, in such case, issue a
proclamation specifying the articles of
which such property consists, and requiring
any person who may have a claim thereto,
to appear before him and establish his
claim within six months from the date of
such proclamation."

14. The land mark judgment relating
to the disposal of seized vehicles and
articles is Sunderbhai Ambalal Desai Vs
State of Gujrat 2003(1) RCR (crl) 380
wherein the Apex Court held that "if the
powers under section 451 Cr.P.C. are
judiciouslly exercised, the owner of the
property would not suffer because of its
remaining
unused
or
by
its
misappropriation. Further the court or the
police would not be required to keep the
articles
in
safe
custody.
If
proper
panchanama before handing over the
possession of the articles is prepared, that
can be used in evidence instead of its
production of article before the court
during trial."

15. The Apex Court further held that
"there was no use to keep such seized
2 All. Bilal & Ors. Vs. State of U.P. & Ors.
1141
vehicle in police station for long period and
directed the judicial magistrates to exercise
their powers under section 451 Cr.P.C.
expeditiously and judicially and entrusted
interim custody of the articles and vehicles
seized to the owner of the property or to the
person who is entitled to be in possession
of the property.

16. In the present case also the vehicle
is lying in police station since 11.3.2021 and
when the vehicle is parked unattended the
valuable parts of the vehicle are taken away
or stolen. The vehicle also occupies larger
space causing inconvenience to the police
department and if during trial the vehicle is
kept in open it would be specifically
deteriorated and if the court finally finds that
the vehicle was unused in the offence or if it
was used in the offence not within the
knowledge of the owner of the vehicle, the
owner will have to collect only scraps of the
vehicle. Thus, nobody is getting to be
benefited if the vehicle got parked totally
unattended at police station. Thus the three
wheeler of the applicant which is said to be
not confiscated yet and is parked in police
station in open since last more than one year
and ten months, if it is not given in the
interim custody of the applicant, the sun and
rain would certainly damage its tyres, colour,
machinery and battery and also the interior,
which is neither in the interest of nation nor
in the interest of the applicant. Admittedly the
applicant has not been chargesheeted in the
case thus, it is not yet proved that the vehicle
was being used in the offence within the
knowledge of the applicant. So in the opinion
of the court, the vehicle of the applicant needs
to be released in favour of the applicant
during trial. The order of the trial court in not
releasing the vehicle in favour of the
applicant even after one year of is seizure is
legally unsustainable, hence, the order dated
24.3.2022 is quashed

17. Let the vehicle no. UP-65-TD9967 be released in favour of the applicant,
the owner of the vehicle, subject to the
production of all necessary documents, on
furnishing a personal bond of Rs. one lakh
and two sureties of Rs. one lakh each to the
satisfaction of the court concerned on the
following conditions;

1. The applicant will not dispose of the
vehicle during the pendency of the trial.

2. The applicant will produce the
vehicle before the court at his own cost,
whenever and wherever, ordered by the
court.

3. The applicant shall not alienate or
change the nature of the vehicle in any
manner.

4. The release of the vehicle shall also
remain subject to confiscation proceedings,
if any.

18. The application 482 Cr.P.C. is
allowed in above mentioned terms.
----------
(2023) 2 ILRA 1141
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 22250 of 2022

Bilal & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicants:
Sri Ravi Prakash Singh

Counsel for the Opp. Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482-Cross case