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Uttarakhand High Court
7 July vs State Of Uttarakhand & Anr on 7 July, 2025
2025:UHC:5829
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 440 of 2025
07 July, 2025
Ravi Prasad --Applicant
Versus
State of Uttarakhand & Anr. --Respondents
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Presence:-
Mr. Mehboob Rahi, learned counsel for the Applicant.
Mr. Akshay Latwal, learned AGA assisted by Mr. Prabhat 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 28.03.2025 passed by the learned
Special Sessions Judge (N.D.P.S. Act)/First Addl. Session
Judge, Nainital in Misc. Criminal Application No. 20 of
2025, titled as “State of Uttarakhand vs. Ganesh Prasad“
F.I.R. No. 395 of 2024 under Sections 8/20/60 of the
Narcotic Drugs and Psychotropic Substances Act, 1985,
P.S. Ramnagar, District Nainital and to allow the release
application filed by the Applicant and direct the release of
the seized vehicle/HONDA Amaze Car (bearing
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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5829
Registration No. UK-06K.A.-1864) in favour of theApplicant.
2. The brief facts as alleged in the F.I.R. are that
on 31.12.2024, an F.I.R. was lodged by the Sub-Inspector
Sunil Singh Dhanik. According to the complainant/Sub-
Inspector, he and his teammates conducting routine
checks at Hathidangar Samshan Tiraha at around 22:30
hours. During operation, they flagged down a grey Honda
Amaze (Registration No. UK-06K.A.-1864) driven by one
Ganesh Prasad, who is the younger brother of the
Applicant. Upon inspection of the vehicle’s dashboard, a
red cloth bag containing a cylindrical black substance
suspected to be charas was recovered. The contraband
was weighed and its net weight was found to be 352
grams. Ganesh Prasad allegedly admitted to possession
the said contraband for personal consumption. Following
the procedures under the NDPS Act, the accused was
arrested and vehicle was seized. The Applicant is the
elder brother of the accused and the said seized vehicle
belongs to the present applicant. There has been non-
compliance of mandatory provisions of NDPS Act
including Sections 42, 50 & 52A and the allegedly
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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5829
recovered contraband is less than the small quantity and
no independent witness was joined in the alleged
recovery of contraband. The applicant is the sole owner of
the vehicle, which was intercepted and seized in
connection with the aforesaid crime registered against
the Applicant under NDPS Act and is now in custody of
police. The Applicant possesses a valid registration
certificate and Insurance of the said vehicle.
3. The accused in the aforesaid FIR, therefore,
moved an application seeking his release on bail before
the Hon’ble High Court of Uttarakhand at Nainital, which
was allowed vide order dated 16.01.2025, thereafter, the
Applicant filed an application for release of the said
vehicle, but learned court below vide order dated
28.03.2025 rejected the said application.
4. The order dated 28.03.2025 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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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5829
therefore, the order dated 28.03.2025 deserves and is
liable to be set-aside.
5. Heard learned counsel for the parties.
6. 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
the vagaries of the weather and miscreants, till the
conclusion of trial, it will result into vehicle get damaged
and reduce its value substantially which will not benefit
the state or the owner. There is no use of keeping vehicle
there in police station and the said vehicle be released in
his favour in view of Section 451 of the CrPC.
7. 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.
8. 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“
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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5829
(Criminal Appeal No.87 of 2025) delivered on 07.01.2025.
9. Relying upon these cases, learned counsel for
the Applicant submits that in view of Section 451 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.
10. Per contra, learned State counsel poses his
formal objection in this regard.
11. 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.
12. In the case of ‘Sunderbhai Ambalal Desi’
(supra), the Hon’ble Apex Court has held 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;
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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5829
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.”
13. 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.
14. For ready reference, para nos.22 and 23 of
‘Bishwajit Dey‘ (supra) are quoted hereinbelow:-
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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5829
“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.
15. Thus, the impugned judgment and order dated
28.03.2025 passed by learned Special Sessions Judge
cannot sustain and deserves to be set aside and is
accordingly set-aside.
16. 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
undertaking that ownership of the vehicle would not be
altered, in any condition, whatsoever, and he shall
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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
2025:UHC:5829
produce the vehicle either before the court concerned or
before such other Authority as the Court may direct.
(Ashish Naithani, J.)
07.07.2025
Akash
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Criminal Misc. Application No.440 of 2025, Ravi Prasad vs. State of Uttarakhand and Anr.
Ashish Naithani J.
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