The court has the power to release seized vehicles under Section 451 Cr.P.C., even if they are involved in a crime, subject to certain conditions, as per the guidelines laid down by the Supreme Court in Sunderbhai Ambalal Desai case.

1. - Being aggrieved with the order dated 21.07.2010 passed by the learned Special Judge, NDPS Act Cases, Hanumangarh, whereby the learned Judge has rejected the application filed by the petitioner under Section 457 Cr.P.C., for releasing of Motor Cycle, bearing registration No. RJ-31-SC-1130 and mobile phone, the petitioner has approached this Court.

2. The brief facts of the case are that the petitioner is the owner of the Motor Cycle, bearing registration No. RJ-31-SC1130, which was seized on 12.04.2010 due to transportation of ten gms. of Smack. Therefore, the petitioner submitted an application under Section 457 Cr.P.C. before the learned Judge for release of the said vehicle as well as mobile phone on "supurdgi". However, vide order dated 21.07.2010, the said application was dismissed. Hence, this petition before this Court.

3. The learned counsel for the petitioner has relied upon the cases of Sunderbhai Ambalal Desai v. State of Gujarat, [JT 2002 (10) SC 80) , Bharat Mehta v. State by Inspector of Police, Chennai, [AIR 2008 SC 1970] and on the case of General Insurance Council & Ors. v. State of Andhra Pradesh & Ors., [2010 Cri. L.J.2883] to buttress his contention that even if the vehicle is involved in a criminal offence, the petitioner is entitled to seek the custody of the vehicle. Secondly, the Apex Court had laid down certain guidelines for exercising of power under Section 451 Cr.P.C. in the case of Sunderbhai Ambalal Desai (supra). However, the said guidelines have been ignored by the learned Judge while dismissing the application under Section 451 Cr.P.C.

4. On the other hand, the learned Public Prosecutor has vehemently contended that under the provisions of NDPS Act, the vehicle is subject to confiscation by the Government. Therefore, the custody of the vehicle as well as the mobile phone should not be given to the petitioner.

5. Heard the learned counsel for the parties and perused the impugned order as well as the case law cited at the Bar.

6. In the case of Sunderbhai Ambalal Desai (supra), the Hon'ble Supreme Court has laid down the guidelines for the exercise of power under Section 451 Cr.P.C. The guidelines dealing with the vehicles are as under:-

"13. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the court at any point of time.

14. However, the learned counsel appearing for the petitioners submitted that this question of handing over of vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

15. In our view, whatever be the situation, it is of no use to keep seized vehicles at the police stations 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 vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

16. 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 o