Directorate Of Revenue Intelligence Vs M/S PRK Diamonds Pvt. Ltd. & Anr

Anu Malhotra, J

1. The petitioner, the Directorate of Revenue Intelligence, assails vide these two petitions a common order dated 31.8.2016 of the learned Chief

Metropolitan Magistrate vide which a Mercedes car bearing No. DL-1CQ-7525 containing 8 Kg. of gold which was seized from it on 8.12.2015 qua

which one Mr. Sunny Kakkar and one Ahadees K were arrested, for carrying smuggled gold registered in the name of M/s PRK Diamonds India Pvt.

Ltd. of which Mr.Sunny Kakkar was its director, permitted the release of the said Mercedes car on superdari and vide the said order also permitted

the release of a Honda City car bearing No. DL-4CAH 8319 which was alleged to have been utilized for carrying smuggled gold on superdari to Sh.

Inder Prakash Kohli @ Baboo who had been arrested along with Mr.Vinod Khanna and Mr.Hari Sharan Khanna on 20.6.2014 for the alleged

commission of offences punishable under Section 132/135 of the Customs Act, 1962 in connection with the recovery of gold bars weighing 5 Kgs

valued at 1,24,22,475/- as per the tariff value as per the customs notification No. 46/14/NT/96/2014 with market value at Rs. 13,65,5000/- seized vide

panchnama dated 29.6.2014. Both the vehicles referred to herein above were allowed to be released on superdari holding that in view of the verdict of

this Court in the case of Manjeet Singh v. State, in Crl.M.C. No. 4485/2013 and Crl. M.A. No. 16055/2013, the vehicle seized during the investigation

including those seized under the provisions of the Customs Act ought to be released to the registered owner of the vehicle on the undertaking that in

the event of confiscation of the vehicle in adjudication proceedings, the registered owner would furnish a bond to the value of the vehicle to the

department or as ordered by the department and it was observed by the learned Chief Metropolitan Magistrate to the effect that the vehicles if not

released, would deteriorate with time and if not released the upkeep thereof would drain the resources and the space and that the presumption of

inconvenience has to be given due weightage and the accused ought not to be penalized indirectly.

2. On behalf of the petitioner, it has been contended that the presumption having been drawn under Section 110 of the Customs Act, 1962, the vehicles

are liable to confiscation and that the learned Chief Metropolitan Magistrate, New Delhi, has no jurisdiction to release the same on any condition

whatsoever. It was also contended on behalf of the petitioner that the vehicle having been produced before the Court could not have been released in

terms of Section 451 of the Cr.P.C. and that the Customs Act, 1962 being a Special Act under which the vehicles used for receiving, carrying and

transporting smuggled goods had been seized as per the provisions of the Customs Act, the provisions of the Special Act override the general

provisions of the Code of Criminal Procedure and that there is no inherent power vested with the learned Chief Metropolitan Magistrate to release the

said vehicles on superdari. It was also submitted on behalf of the petitioner that the vehicles were liable to confiscation under the Customs Act, 1962

and on confiscation, the ownership of the vehicle vests with the Central Government and that at the time of confiscation the vehicle has to be offered

to the Central Government and that the Central Government cannot be relegated for institution of a civil suit for recovery or possession of the vehicle.

3. Inter alia it was submitted on behalf of the petitioner that the reliance placed in the impugned order on the verdict of this Court in Manjeet Singh v.

State (supra) is misplaced in as much as it does not deal with the aspect of the vehicle liable to be confiscated.

4. A catena of verdicts was relied upon on behalf of the petitioners to contend that there had been an erroneous exercise of jurisdiction by the learned

Trial Court. The judgments relied upon by the petitioner are as under:

i. Assistant Collector of Customs, Customs House, Indraprastha Estate, New Delhi v. Tilak Raj Shiv Dayal, Dehradun: AIR 1969 Delhi 301

ii. Tarlok Singh v. The Superintendent of Customs and Anr.: MANU/DE/0231/1978

iii. Randhir Singh v. Directorate of Revenue Intelligence: 29(1986) DLT 2

iv Customs v. Rajesh Bhaskar, Crl. Rev. P. 259/1999

v Superintendent Customs and Central Excise Vapi v. Raichand Lakhamsing Shah, AIR 1970 Gujarat 223(V 57 C 37)

vi DRI v. Amit Kumar: Crl. M.C. No. 5320/2013

vii Smt. Narender Kaur v. Arun Sheoran, Intelligence Officer, Narcotics Control Bureau; 2000(2) JCC 512 (Delhi)

viii Kirta Ram v. State of Rajasthan: 2008 Crl. L.J. 1438

5. On behalf of the respondents, the petition was vehemently opposed placing reliance on the following verdicts:

I. Department of Customs v. M/s Eastern Carriers (1994 II AD (Delhi) 105)

II. Department of Customs v. M/s Eastern Carriers; SLP (Civil)

III. DRI v. Amarjeet Singh: Crl. M. (M) No. 1564/2000

IV. Jagdish Chander Sharma v. DRI: Crl.M(M) No. 1774/1999

V. Enforcement v. Braham Choudhary:Crl. M(M) No. 680/1998

VI. Smt. Narender Kaur v. Arun Sheoran; Crl. M(M) No. 1026/1998: 2000(2) JCC 512 (Delhi)

VII. Madan Lal v. State, National Capital: 2002 IV AD Delhi 177 VIII. Gurbinder Singh @Shinder vs. State of Punjab CRR No. 1765/2015

IX. Hari Singh v. State of Haryana; Crl.Rev.No. 903/1986

X. Manjit Singh v. State; Crl.M(M) No.4485/2013

XI. Sangram Singh v. Election Tribunal; 1995 AIR SC 425

submitting to the effect that in terms of the verdicts relied upon the interim release of the vehicles on superdari does not whittle the power of the

department in final adjudication qua the order for confiscation of the vehicles and that there was no error in the order of the learned Trial Court

directing the interim release of the vehicles.

6. The verdict of this Court in Manjeet Singh v. State (supra) a verdict dated 10.9.2014 was on facts in which a vehicle which was stolen had been

seized and an FIR bearing No. 56/2009 was registered at Police Station Defence Colony on 20.2.2009 and the car was recovered by the police on

20.7.2009 and was released to the petitioner on 4.8.2009 whereafter on 5.6.2013, the petitioner moved an application under Section 451 of the Cr.P.C.

for permission to sell the vehicle on the ground that it was more than five years later and that it required a lot of maintenance and repair and its market

value had depreciated when vide order dated 19.9.2013, the learned ASJ allowed the petitioner to sell the vehicle in question subject to the condition

that the prospective/intending purchaser executed a superdarinama bond to produce the vehicle as and when required which was assailed by the

petitioner in Manjeet Singhâ€™s case submitting to the effect that he had sought permission to sell the vehicle unconditionally in view of the verdict of

the Honâ€™ble Supreme Court in Sunderbhai Ambalal Desai & Ors. v. State of Gujarat ; (2002) 10 SCC 283 andS underbhai Ambalal Desai & Ors.

v. State of Gujarat(2002) 10 SCC 290 and General Insurance Council and Ors. v. State of Andhra Pradesh and Ors. (2010) 6 SCC 76 8wherein, the

Honâ€™ble High Court had laid down that the photograph of the vehicle can be utilized as secondary evidence at the time of trial and it was not

necessary to produce the vehicle at the time of trial, on a consideration of the response of the Delhi Police, the Delhi High Court Rules (Part-E) on

Chapter 11 of Volume 3 which deals with the custody or the disposal of property sent by the police and the provisions of Section 451 of the Cr.P.C.

which provided to the effect:

â€œ451. Order for custody and disposal of property pending trial in certain cases.â€"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.

Explanation.- For the purposes of this section,"" property"" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

452. Order for disposal of property at conclusion of trial.â€"(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such

order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of

any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been

used for the commission of any offence.

(2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof,

without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such

property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial

Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection

(2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed

of.

(5) In this section, the term"" property"" includes, in the case of property regarding which an offence appears to have been committed, not only such

property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been

converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

â€¦â€¦

â€¦.

457. Procedure by police upon seizure of property.â€"(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.

458. Procedure where no claimant appears within six months.â€"(1) If no person within such period establish his claim to such property, and if the

person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may, by order direct that

such property shall be at the disposal of the State Government, and may be sold by that Government and the proceeds of such sale shall be dealt with

in such manner as may be prescribed.

(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate.

459. Power to sell perishable property.â€"If the person entitled to the possession of such property is unknown or absent and the property is subject to

speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that

the value of such property is less than five hundred rupees, the Magistrate may at any time direct it to be sold; and the provisions of sections 457 and

458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.â€

and on a consideration of the judgments in Basava Kom Dyamogouda Patil v. Sate of Mysore: 1977 4 SCC 35,8 Sunderbhai Ambalal Desai &Ors. v.

State of Gujarat ; (2002) 10 SCC 283 K.W. Ganpati v. State of Karnataka: ILR 2002 KAR 3751, Sunderam Finances Limited v. State of Tamil Nadu

(2011) 1 MWN (CRI) 437, it was held vide paragraphs No. 94 to 100 of the verdict of this Court in Manjeet Singh (supra) to the effect:

94. In compliance with the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore (supra), Sunderbhai Ambalal

Desai v. State of Gujarat (supra 1), Sunderbhai Ambalal Desai v. State of Gujarat (supra 2) and General Insurance Council v. State of A.P. (supra),

the SHO/IO shall file applications and produce the case properties presently in custody of Delhi Police before the concerned Court within one week

whereupon the concerned Court shall pass appropriate order within one month thereafter.

95. With respect to fresh seizure of properties, the SHO/IO shall produce the case properties before the concerned Court within one week of the

seizure whereupon the Court shall pass appropriate order within one month thereafter.

96. Since the Supreme Court has fixed responsibility of the Registry of the High Court to ensure the compliance of its directions, the Delhi Police shall

submit a quarterly compliance report before the Registrar General of this Court. The first compliance report for the period 1st October, 2014 to 31st

December, 2014 be filed by 15th January, 2015. The quarterly reports thereafter, be filed after every three months. The compliance report shall

contain the particulars of the applications for disposal of the properties filed and the orders passed thereon by the concerned Courts. The compliance

report shall also contain the list of cases in which the applications could not be filed within the prescribed period along with the explanation thereof.

The Registrar General shall consider the reports and ensure the compliance of the directions issued by the Supreme Court. The compliance reports be

filed by the police officers made responsible by the Supreme Court in para 14 of General Insurance Council v. State of A.P.(supra).

97. The Courts below shall also file a quarterly report through their District & Sessions Judge before the Registrar General containing the particulars

of the cases in which the appropriate order has been passed within one month of the application. If any case could not be disposed of within 30 days,

particulars thereof along with the reasons be also submitted. The first compliance report for the period 1st October, 2014 to 31st December, 2014 be

filed by 15th January, 2015.

98. With respect to the submission of Delhi Police that the District Nazir is not equipped to deal with the order with respect to the sale/auction of the

case properties and therefore, Provisioning & Logistics Department of Delhi Police be allowed to deal with the sale/auction of the case properties, it

would be appropriate for the Delhi Police to take up the matter with the High Court on the administrative side and no orders are warranted in this

petition.

Present case

99. In the present case, the petitioner is registered owner of the car in question and the accused has no objection to the petitioner being permitted to

sell the vehicle and in that view of the matter, the learned Sessions Court should have permitted the petitioner to sell the vehicle after taking

photographs of the same. The Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (supra 1), Sunderbhai Ambalal Desai v. State of

Gujarat (supra 2) and General Insurance Council v. State of A.P. (supra) has clearly held that the production of the vehicle during trial is not

necessary and the photographs of the vehicle would be sufficient to be proved in evidence. The Committee appointed by the Chief Justice of this

Court in their Report which was circulated to all the judicial officers also clearly approved the said procedure. However, in utter violation of the

Supreme Court judgments as well as the Report of the Committee of this Court, the learned Sessions Court held that the vehicle would be required

during evidence. The Sessions Court further gravely erred in recording that the accused may stake a claim on the vehicle without even asking him.

When the accused appeared before this Court on 13th December, 2013, he clearly staked no claim on the vehicle and had no objection for the sale of

the vehicle. The least expected from the learned Sessions Court was to have asked the accused whether he had any claim or objection to the sale of

the vehicle. The petitioner being a registered owner of the vehicle which was stolen and recovered from the possession of the accused, the view taken

by the learned Sessions Court (without even asking the accused) that the accused, the alleged thief, would stake a claim is clearly perverse. The

learned Sessions Court also did not appreciate the petitionerâ€™s contention that the petitioner would not get a fair price if the vehicle is sold with a

bond and further that the value of the vehicle is already depreciated and it is expensive to maintain the same.

100. For the reasons stated above, the petition is allowed and the condition imposed by the learned Trial Court requiring the prospective/intending

purchaser to execute the superdari bond is set aside. The petitioner has already been permitted to unconditionally sell the vehicle after taking

photographs of the said vehicle and furnishing them to the Investigating Officer concerned. The pending application is disposed of.â€

7. Written submissions have been submitted on behalf of the petitioner and the respondents.

8. Vide order dated 18/11/2016 in Crl.M.C. No. 4316/2016 and vide order dated 21.12.2016 in Crl.M.C. No. 4767/2016, the operation of the common

order dated 31.8.2016 of the learned Trial Court had been stayed which interim restraint is still in existence. In Crl.M.C. No. 4316/16 in the case titled

Directorate of Revenue Intelligence v. P.R.K. Diamonds Pvt. Ltd. and Sunny Kakkar, has been submitted on record an order dated 1.12.2017 bearing

No. DLI Customs/PRE/PR-CMOR/19/17 of the Pre-Commissioner Customs Preventive which brings forth that the vehicle Mercedes bearing

Registration No. DL1CQ 7525 seized from the possession of Mr.Sunny Kakkar, the director of the company M/s PRK Diamonds Pvt. Ltd. has been

confiscated under Section 115 (2) of the Customs Act, 1962, though an option had been given to Sunny Kakkar to pay a fine of Rs.10,00,000/- in lieu

of the confiscation. Apparently in view of the said confiscation order qua which it was submitted on behalf of the respondents on 9.3.2018 that the

order has been assailed in appeal and taking into account that vide the impugned order it had been directed to the effect that because the Registered

Owner of the vehicle shall give an undertaking to the effect that in the event of the adjudication proceedings, the vehicle which was released to him on

superdari as confiscated, he would furnish the value of the vehicle to the department, it is apparent that the interim release of the said vehicle granted

vide the impugned order dated 13.8.2016 qua the said vehicle does not survive any more. However in view of the proceedings dated 9.3.2018 and the

pendency of the petition and taking into account the factum that the impugned order is a common order even in relation to the accused Inder Prakash

Kohli qua the vehicle Honda city car bearing No.DL-4C-AH-8319, it is considered essential to determine the question of law involved in the matter

which relates to the aspect of the applicability of Section 451 of the Cr.P.C. to articles confiscated under the Customs Act, 1962, and their seizure

under the Customs Act, 1962, and qua which notices to show cause for confiscation have been issued.

9. The respondents have submitted that they are suffering unnecessarily in as much as their vehicles worth lakhs of rupees are lying with the

department as a junk and that the DRI did not choose to challenge the release of the third vehicle allowed to be released by the impugned order.

10. The verdict of this Court in Assistant Collector of Customs, Customs House, Indraprastha Estate, New Delhi v. Tilak Raj Shiv Dayal, Dehradun:

AIR 1969 DELHI 301 decided on 14.2.1969, lays down categorically that a Customs Officer under the Customs Act, is not a police officer within the

meaning of the expression as used in Section 523 of the Cr.P.C. as it then existed which is the precursor to Section 451 of the Code of Criminal

Procedure, 1973, and it has been laid down therein that the provision of Section 451 Code of Criminal Procedure, 1973 is not applicable to the

properties seized by the Customs Officer under the Customs Act, 1962 at least before criminal proceedings are launched with respect to the property

seized. In that case the criminal proceedings had not been launched and it was thus held that the SDM had no jurisdiction to order the return of the car

seized under the provisions of the Customs Act, which car had been seized believing in as much as it was alleged that 13 bars of gold had been

smuggled therein.

11. Reliance was placed on behalf of the petitioner on the verdict of this Court in Tarlok Singh v. The Superintendent of Customs and Anr.: 15(1979)

DLT 183 decided on 6.4.1978 qua the prayer made by the owner of the intercepted vehicle for release of the vehicle on superdari was declined

holding to the effect that the customs authorities are under a legal obligation to take proceedings qua confiscation within six months failing which the

seized goods have to be returned to the person from whose possession they were seized. The vehicle here also had been seized under Section 110 of

the Customs Act, 1962.

12. Reliance was placed on behalf of the petitioner on the verdict of this Court in Randhir Singh v. Directorate of Revenue Intelligence, 1986 Crl. LJ

1208 in which the vehicles seized under Section 110 of the Customs Act, 1962 with textiles of foreign import without any document of lawful import

and acquisition and possession and it was held to the effect that the vehicles, having been seized by the customs authorities in exercise of statutory

powers conferred on them by the Customs Act, 1962, the mere filing of a complaint in the Court does not deprive the Customs Authority of their

control and the control would continue to vest with the Customs Authority and the Criminal Court in terms of Section 451 of the Cr.P.C. cannot permit

its release unless the property is produced before the Court during the inquiry or trial and that thus merely because the vehicles would become a junk

and the loss could result to insignificance thereof due to lack of care and proper upkeep was no ground to release the vehicles, though it was

categorically observed vide para 10 of the said verdict which is to the effect:

â€œ10. In this view of the matter, therefore, the argument of Shri Harjinder Singh that the trucks in question may become a mere junk and total loss in

case they are permitted to remain the control and custody of the Customs authorities for lack of proper up-keep and care dwindles to insignificance.

Obviously the intention of the legislature is that the Customs authorities must bestow proper case and attention to the goods like the present seized by

them so long as they remain in their custody and control. It may be, however, made clear that it shall be open to the persons having any right and

interest in the trucks in question as registered owners thereof or otherwise to apply afresh for interim custody, if and when these trucks are produced

in the course of inquiry or trial.â€,

holding thus to the effect that the persons having any right and interest in question in that case as registered owner thereof or otherwise could apply

afresh for an interim custody if and when those trucks were produced in the cour se of inquiry or trial. Vide order dated 12.8.2004 in Crl.Rev. Petition

No. 25/1999 and Crl. M.A. 6515/99 the order of the ACMM, Delhi releasing the vehicle seized by the Cargo Preventive Unit at New Delhi,

containing smuggled watches was vacated.

13. Reliance was placed on behalf of the petitioner on the verdict of the Honâ€™ble High Court of Gujarat in Superintendent Customs and Central

Excise Vapi v. Raichand Lakhamsing Shah; AIR 1970 Gujarat 223 vide which it was held to the effect that a Customs Officer as laid down by the

Honâ€™ble Division Bench of the High Court of Bombay in Vasant Lal v. Union of India; AIR 1967 Bom 138 had laid down that the Customs

Officer under the Customs Act, 1962 has power to seize the goods if he has reason to believe that those are articles liable to confiscation under the

said enactment even though the goods may have been seized by the Customs Officer and that thus as the Customs Officer who is entitled to seize the

articles or goods has wide power under the Customs Act, 1962 itself without a search warrant obtained from the Magistrate, the direction to release

the vehicle on conditions cannot be ordered by the Magistrate in relation to the seizure of a truck which in that case alleged to have had been used for

transporting or carrying smuggled goods. The observation in para 22 of the verdict read to the effect:

â€œ22. Section 111 of the Act, which falls in Chapter XIV deals with, ""confiscation of improperly imported goods, etc."" Section 112 of the Act deals

with, ""penalty for improper importation of goods, etc."", and Section 113 of the Act deals with 'confiscation of goods attempted to be improperly

exported goods, etc."" Section 115 of the Act deals with, ""confiscation of conveyances"". Sub-section (2) of it, which is material for our purposes,

reads:-

(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to

confiscation, unless the owner of the conveyance or animal 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 conveyance or animal and that each of them had taken all such precautions against such use as are for

the time being specified in the rules.

That section indicates that such a conveyance can also be confiscated if it is used as a means of transport in the smuggling of any goods or in the

carriage of any smuggled goods. Section 110 of the Act does not indicate that such seizure can be made by a proper officer if the goods liable to

confiscation under the Act are in the custody of the owner himself . There is general power vested in him to seize the goods wherever they may be if

he has reason to believe that the goods are liable to confiscation under this Act. In the instant case, this power has been exercised by the Customs

Officer and the goods had come to be seized on the very day. The goods were initially seized by the Police Officer. Admittedly when the application

came to be made by the petitioner to the Magistrate under Section 523 of the Code, these goods were already seized by the Customs Authorities in

exercise of power under Section 110 of the Act.â€

14. Reliance was also placed on behalf of the petitioner on the verdict of this Court in Directorate of Revenue Intelligence v. Amit Kumar: Criminal

M.C. No. 5320/2013, a verdict dated 22.11.2016 wherein the release directed on superdari of a vehicle a Toyota Fortuner from which 95.350 Kg. of a

contraband substance were recovered by the Directorate of Revenue Intelligence Officers was held to be erroneous observing to the effect that the

matter related to commission of an offence punishable under the NDPS Act, 1985 which was a special law and the offence committed had to be dealt

with in accordance with the provisions of the Special law and the directions were thus made vide the judgment dated 22.11.2016 for surrender of the

vehicle make Toyota Fortuner which had been allowed to be released.

15. Reliance was also placed on behalf of the petitioner on the verdict of this Court in Smt. Narender Kaur v. Arun Sheoran, Intelligence Officer,

Narcotics Control Bureau: 87 (2000) DLT 155, which related to the seizure made by the Narcotics Control Bureau in which the car utilized for

conveyance of the contraband liable to be confiscated under Section 60 of the NDPS Act, 1985 had not been allowed to be released by the Trial

Court and it was observed to the effect that the said seizure had been effected in terms of Section 43 of this NDPS Act, 1985, and that Section 60 and

63 thereof provided for disposal of the conveyance used in the case of committing of the offence and that it was held that the discretion exercised by

the Trial Court in disallowing the request for the return of the car primarily on the ground that it was liable to be confiscated under the NDPS Act,

1985 did not warrant any interference. Reference was also made in this judgment to the verdict of the Honâ€™ble High Court of Bombay in B.S.

Rawat V. Shaikh Abdul Karim &Anr.: 1989 Cri.LJ 1998 wherein it had been observed to the effect that the purpose of the NDPS Act was to see

that the vehicle which was used for the conveyance of the contraband was not made available to the persons indulging in those activities and

confiscation of the vehicle was an additional safeguard to discourage this crime.

16. Reliance was also placed on behalf of the petitioner on the verdict of the Honâ€™ble High Court of Rajasthan in Kirta Ram v. State of Rajasthan:

2008 Crl.L.J.1438, which was also one under the NDPS Act, 1985 in which the vehicle transporting poppy straw which had been intercepted by the

police was not allowed to be so released, and it was held that it could not be released on superdari in terms of Section 60 of the NDPS Act, 1985 and

it was also held that no interim custody of the vehicle could be granted.

17. On behalf of the respondents through their written submissions it has been submitted that against the order dated 18.11.2016 in Crl. M. C. No.

4316/16 vide which the operation of the impugned order dated 31.8.2016 in the case of Sunny Kakkar was stayed, LPA 91/17 had been preferred by

Sunny Kakkar, Respondent No.2, the director of M/s PRK Diamonds Pvt. Limited, the respondent No.1, decided on 15.3.2017 and the said LPA, was

held to be not maintainable observing to the effect that order dated 18.11.2016 of this Court had been made in exercise of criminal jurisdiction and that

the respondents filed three SLPs against the orders dated 18.11.2016 and 23.12.2016 (there appears to be a typographical error and the order dated

23.12.2016 be read as order dated 20.11.2016 in Crl.M.C. No. 4767/2016 in Directorate of Revenue Intelligence v. Inder Prakash Kohli @ Baboo) in

which the operation of the impugned order of the learned Trial Court permitting the release of the vehicle to Inder Prakash Kohli had been stayed and

also assailed the order dated 15.3.2017 of the Division Bench of this Court in LPA 91/17 and submitted that the Honâ€™ble Supreme Court observed

that it was not inclined to interfere in the order dated 15.3.2017 of the Division Bench of the High Court of Delhi, i.e., of this Court, but that it would

be open for the petitioner that the respondents to appear before the Court for vacation of the stay order passed by the learned Single Judge on

18.11.2016.

18. Reliance was placed on behalf of the respondents on the verdict of this Court in Department of Customs v. M/s Eastern Carriers; (1994 II AD

(Delhi) 105) to contend that in that case confiscated toothpaste which had been utilized, which was a perishable article and which had been utilized in

concealing the smuggled goods which were ball bearings worth Rs.40,95,600/- which were concealed in 450 boxes of Close Up toothpaste which

were recovered from two trucks bearing No. DIG-4706 and DL-1L-A 3252 which seizure had been made by the customs authorities, the toothpaste

was allowed to be released on furnishing an indemnity bond of Rs.12 lakhs and it was submitted on behalf of the petitioner that the said judgment

dated 25.3.1994 in Crl. M.(M) No. 679/1994 was upheld by dismissal of the Crl. M.A. no. 2902/94 against the said judgment by the Honâ€™ble

Supreme Court on 5.8.1994, though it was observed to the effect that if the order was not complied, it was open to the authority to sell the goods in an

appropriate manner.

19. Reliance was also placed on behalf of the respondents on the order dated 9.8.1999 of this Court in Crl. M(M) No. 1774/99 whereby the order of

the learned ACMM dated 5.6.1999 permitting the release of a truck seized by the customs authorities was not set aside. Reliance was also placed on

behalf of the respondents on the order dated 13.7.2000 of this Court in Crl. M.(M) No. 564/2000 in which a truck was allowed to be released on

superdari in which case the respondents arrayed therein in the case titled Jagdish Chander Sharma V. Directorate of Revenue Intelligence; Crl.M(M)

No. 1564/2000, was the Intelligence Officer of the Directorate of the Revenue Intelligence and the order dated 13.7.2000 indicates that the truck had

been directed to be maintained including the cavities from which the contraband articles were recovered by the petitioner who sought the release of

the vehicle on superdari in the same condition as it was on 13.7.2000. Reliance was also placed on behalf of the respondents on the order dated

22.4.1999 of this Court in Crl.M(M) 688/98 in the case Enforcement V. Braham Choudhary: Crl.M(M) No. 680/1998 in which a Maruti car was

allowed to be released on superdari though it had been contended that the car had been purchased from foreign currency illegally brought by the

brother of the respondent and it was observed that there was no reason to interfere with the exercise of jurisdiction under Section 451 of the CPC.

20. Reliance was also placed on behalf of the respondents on the verdict of this Court in Smt. Narender Kaur v. Arun Sheoran (supra), which had

also been relied upon on behalf of the petitioner contending to the effect that in that case, the vehicle was not released during the pendency of the

case in as much as it was not certain that the vehicle belonged to the petitioner. Reliance was also placed on behalf of the respondents on the verdict

of this Court in Madan Lal v State, National Capital: 2002 IV AD (Delhi) 177 which was a case in which 400 gms smack was recovered from inside

the cabin of the seat of the driver of a Tempo and in terms of Section 63 of the NDPS Act, 1985, the said vehicle was liable to confiscation and it was

thus held that in terms of Section 60(3) and Section 63 of the NDPS Act, 1985, neither Section 60(3) nor Section 63 of the NDPS Act, 1985

empowered the Trial Court to make an order for proper custody of a conveyance during the pendency of trial but that by virtue of Section 51, the

provisions of the Code of Criminal Procedure, 1973 had been made applicable in order that they are not inconsistent with the provisions of the

Customs Act and thus it was observed that the petitioner therein being the undisputed registered owner of the vehicle, the vehicle was nevertheless

not allowed to be released on superdari to the petitioner in as much as it was held that the trial was to conclude in the near future and that if the tempo

was not released, it would get further damaged because of its disuse and for proper custody during pending the trial and the order was needed to be

made and the order of the Trial Court whereby no reasons were given for declining the release of the vehicle was set aside and the vehicle was

allowed to be released to be produced on superdari on conditions with it having been directed to be produced before the learned Trial Court as and

when required.

21. Reliance was also placed on behalf of the respondents on the verdict of the Honâ€™ble Division Bench of the High Court of Punjab & Haryana

in the case of Gurbinder Singh @ Shinder v. State of Punjab: CRR No. 1765/2015 in which the vehicles seized under the NDPS Act were allowed to

be released on interim custody observing to the effect that there was no provision under the NDPS Act debarring the release of the vehicle for interim

custody and that the provisions of Section 451 of the Cr.P.C. were found to be not inconsistent to the provisions of the NDPS Act.

22. Vide this judgment, the Honâ€™ble Division Bench of the High Court of Punjab & Haryana also observed to the effect that in view of the law

laid down by the Honâ€™ble Supreme Court in Sunderbhai Ambalal Desaiâ€™s (supra)case would also apply to the seizure of vehicles under the

NDPS Act and any contrary view taken by the Courts of law would be against the interest of the owner of the vehicles, the public at large and the

State.

23. Reliance was also placed on behalf of the respondents on the verdict of the Honâ€™ble High Court of Punjab & Haryana in Hari Singh v. State

of Haryana: Volume 16 1987-I PLR 413, in the case in which it was held that merely that a vehicle was liable to be confiscated under the NDPS Act,

1985, the same is no ground to assume that it would be confiscated merely because the release of the property would be regulated in accordance with

the well settled judicial ways and not because that there was a stringent law applicable at the time of the punishment.

24. Reliance was also placed on behalf of the respondents on the verdict of this Court in Manjit Singh v. State; (supra) the verdict dated 10.9.2014

which made reference to the verdict of the Honâ€™ble Supreme Court in Sunderbhai Ambalal Desai (Supra) and in General Insurance Company v.

State of U.P. (supra) to contend that the ratio of the said verdict in relation to release of vehicles seized by the police would apply to seizures effected

under the Customs Act, 1962. It has also been held by the learned Trial Court and that the precautions and observations mentioned in the judgment in

Manjeet Singh (Supra) were only limited to the release of the vehicle, and that the guidelines laid down in Manjit Singh (Supra) to the effect:

â€œVehicles

68. Vehicles involved in an offence may be released to the rightful owner after preparing detailed panchnama; taking photographs of the vehicle;

valuation report; and a security bond.

69. The photographs of the vehicle should be attested and countersigned by the complainant, accused as well as by the person to whom the custody is

handed over.

70. The production of the vehicle should not be insisted upon during the trial. The panchnama and photographs along with the valuation report should

suffice for the purposes of evidence.

71. Return of vehicles and permission for sale thereof should be the general norm rather than the exception.

72. If the vehicle is insured, the Court shall issue notice to the owner and the insurance company for disposal of the vehicle. If there is no response or

the owner declines to take the vehicle or informs that it has claimed insurance/released its right in the vehicle to the insurance company and the

insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in auction.

73. If a vehicle is not claimed by the accused, owner, or the Insurance company or by a third person, it may be ordered to be sold by auction.â€,

with also reference to the general guidelines therein which read to the effect:

â€œGeneral

86. The Court may impose any other condition which may be necessary in the facts of each case.

87. The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before

passing the order. The Court shall also take into consideration the objections, if any, of the accused.

88. When the property has any evidentiary value, it is to be kept intact and the condition of non-alienation is imposed to ensure its production during the

course of evidence for the purpose of marking as a material object. However, when the property has no evidentiary value and only the value of the

property is to be properly secured for passing of final order under Section 452 Cr. P.C., the necessity of keeping such properties intact by imposing

onerous conditions, prohibiting its alienation or transfer would not be necessary in law.

89. The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary

that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary

evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature

can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in

photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which

are subject matters of criminal trial.

90. Irrespective of the fact whether the properties have evidentiary value or not, it is not necessary that the original of the property has to be kept

intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly

certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the

property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final

orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not

entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and

security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to.

91â€¦.

92â€¦.

93â€¦

Conclusion