Uttarakhand High Court
27 June vs State Of Uttarakhand & Anr on 27 June, 2025
2025:UHC:5521
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 409 of 2025
27 June, 2025
Narendra Singh Mahar Alias Sonu --Applicant
Versus
State of Uttarakhand & Anr. --Respondents
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Presence:-
Mr. Ajay Joshi, learned counsel for the Applicant.
Mr. Vipul Painuly, learned AGA assisted by Mr. Chitrarth Kandpal,
learned Brief Holder for the State.
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Hon'ble Ashish Naithani, J.
This criminal misc. application is filed under
Section 528 of B.N.S.S. by the Applicant to quash/set-
aside the order dated 10.03.2025 passed by the learned
Special Sessions Judge (N.D.P.S. Act), District
Pithoragarh in Misc. Criminal Application No. 17 of 2025,
titled as “Narendra Singh Mahar alias Sonu vs. State of
Uttarakhand” under Section 60 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, P.S. Kotwali, District
Pithoragarh and to allow the release application filed by
the Applicant and direct the release of the seized
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Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5521
vehicle/KTM Duke 250ABS Motorcycle (bearing
Registration No. UK-05E-1101) in favour of the Applicant.
2. The brief facts of the case are that on
04.02.2025, an F.I.R. was lodged against the Applicant
and co-accused person with the allegations that while
police party was on patrolling duty, the biker, who was
riding on a high speed stopped his bike and made a U-
turn but it got skidded and the biker along with pillion
rider felt down on the road and when the police
approached them to help they started running and they
got apprehended. It is also alleged when the accused
were nabbed, they tried to throw something from their
pocket and when it was recovered, it was found to be
heroine/smack (around 3.25 grams) and KTM Duke
250ABS motorcycle bearing registration no. UK-05E-
1101 was intercepted and seized under Motor Vehicles
Act.
3. The applicant has falsely been roped in in the
alleged commission of crime and he has no connection
with the alleged crime; that, there has been non-
compliance of mandatory provisions of N.D.P.S. Act
including Sections 42, 50 and 52A and the contraband
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recovered from a public place, is less than the small
quantity and no independent witness was there; that, the
Applicant is the sole owner of the vehicle, which was
seized in connection with the said crime under N.D.P.S.
Act and under Sections 3, 181, 184, 39, 192, 129,
194(D), 207 of Motor Vehicles Act. The Applicant
possesses valid registration certificate insurance of the
vehicle.
4. Learned Special Sessions Judge (N.D.P.S. Act),
Pithoragarh vide order dated 17.02.2025 allowed the bail
application of the Applicant, thereafter, the Applicant
filed an application for release of the said vehicle, but
learned court below vide order dated 10.03.2025 rejected
the said application in view of Sections 60 & 63 of
N.D.P.S. Act.
5. The order dated 10.03.2025 passed by the
learned court below is arbitrary and improper for the
reason that in view of Section 51 of the N.D.P.S. Act, the
provisions of the B.N.S.S. would be applicable in cases of
warrants, arrests, searches and seizures and in view of
Section 497(1) read with 503 of BNSS, the vehicle ought
to have been released in custody of its registered owner,
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2025:UHC:5521
therefore, the order dated 10.03.2025 deserves and is
liable to be set-aside.
6. Heard learned counsel for the parties.
7. It is contended by learned counsel for the
Applicant that the vehicle has been lying unattended at
the police station compound and the same is exposed to
sun and rain, thereby rendering it to natural wear and
tear and open to deterioration. There is no use of keeping
vehicle there in police station and the said vehicle be
released in his favour in view of Sections 451 and 457 of
the CrPC.
8. In support of his contention, he relied upon the
judgment rendered by the Hon’ble Apex Court in the case
of “Sunderbhai Ambalal Desai Vs. State of Gujarat“,
reported in (2002) 10 SCC 283.
9. He further relied upon the judgment of Hon’ble
High Court of Uttarakhand in the judgment of “Abhijeet
Kumar vs. State of Uttarakhand“, 2019 SCC Online
UTT 265 and the judgment of Hon’ble Supreme Court in
the case of “Bishwajit Dey vs. The State of Assam“
(Criminal Appeal No.87 of 2025) delivered on 07.01.2025.
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10. Relying upon these cases, learned counsel for
the Applicant submits that in view of Sections 451 and
457 CrPC and as the orders can be passed for release of
the property pending conclusion of the trial, if the
property is subject to speedy and natural degrade and if
otherwise, it is expedient, so to do, the release
application should have been allowed. This impugned
order suffers from illegality and is liable to be quashed.
11. Per contra, learned State counsel admitted that
it is evident from the recovery memo/F.I.R. itself that
through at the time of recovery, the police party tried to
associate independent witness but none came forward for
the same.
12. I have gone through the judgment and order
relied upon by learned counsel for the Applicant rendered
by the Hon’ble Apex Court along with provisions of
Sections 451 and 457 of CrPC.
13. In the case of ‘Sunderbhai Ambalal Desi’
(supra), the Hon’ble Apex Court has held as under:-
“17. In our view, whatever be the situation, it is of no use to
keep such seized vehicle at the police station 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 vehicle, if required at5
Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
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any point of time. This can be done pending hearing of the
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.”
14. The issue of release of vehicle involved in
transportation of NDPS substance also cropped up before
the Hon’ble Apex Court quite recently in Criminal Appeal
No.87 of 2025, “Bishwajit Dey Vs. State of Assam”
decided on 07.01.2025, in which case the Hon’ble Apex
Court has gone into the provisions of Section 60 of NDPS
Act in great detail with the help of various case laws and
came to this conclusion that in the absence of any
specific power under the NDPS Act and in view of Section
51 of NDPS Act, the Court can invoke general power
under Sections 451 and 452 for release, pending decision
in the criminal case; the trial court has discretion to
release the vehicle in the interim. However this power
would have to be exercised, in accordance with law, in
the facts and circumstances of each case.
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15. For ready reference, para nos.22 and 23 of
‘Bishwajit Dey‘ (supra) are quoted hereinbelow:-
“22. This Court is further of the opinion that there is no
specific bar/restriction under the provisions of the
NDPS Act for return of any seized vehicle used for
transporting narcotic drug or psychotropic substance in
the interim pending disposal of the criminal case.
23. In the absence of any specific bar under the NDPS
Act and in view of Section 51 of NDPS Act, the Court
can invoke the general power under Sections 451 and
457 of the Cr.P.C. for return of the seized vehicle
pending final decision of the criminal case.
Consequently, the trial Court has the discretion to
release the vehicle in the interim. However, this power
would have to be exercised in accordance with law in
the facts and circumstances of each case.”
The Hon’ble Apex Court has allowed the appeal
with a direction to the trial court to release the vehicle in
question in the interim supurdagi.
16. Thus, the impugned judgment and order dated
10.03.2025 passed by learned Special Sessions Judge
cannot sustain and deserves to be set aside and is
accordingly set-aside.
17. Thus the C-528 Application is allowed. The
vehicle in-question is directed to be released in favour of
the Applicant after executing personal bond of `50,000/-
and two local sureties, each of the like amount, to the
satisfaction of the court concerned along with an
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Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
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undertaking that ownership of the vehicle would not be
altered, in any condition, whatsoever, and he shall
produce the vehicle either before the court concerned or
before such other Authority as the Court may direct.
(Ashish Naithani, J.)
27.06.2025
Akash
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Criminal Misc. Application No.409 of 2025, Narendra Singh Mahar @ Sonu vs. State of Uttarakhand and Anr.
Ashish Naithani J.