Vehicle Attached Under BUDS Act Can Be Auctioned Before Trial, Priority Is To Distribute Proceeds Among Victims Of Offense: Kerala High Court

The Court held that the scheme of BUDS Act is to give priority to realise assets in the custody of accused and distribute the proceeds among the victim of the offence. The Act says that an application for confirmation of attachment and permission of sale is to be filed within 30 days from the date of provisional attachment. This shows that the sale should take place in a time bound manner. The Court also observed that there are reasonable grounds to assume that the accused bought the vehicle using the proceeds of the offence alleged.

Justice P. G. Ajithkumar observed:

“Section 14 of the BUDS Act insists on filing of an application for confirmation of the attachment and permission to sell the property within a period of 30 days from the date of order of the provisional attachment. That implies that the sale of the attached properties should happen in a time bound manner. The pendency of the investigation, inquiry or trial shall not be a bar for confirming the attachment or sale of the property.”

The allegation is that the accused bought the vehicle using the money amassed by conducting unauthorized deposit schemes. The Additional Sessions Court (Adhoc) had dismissed the application of the State for the permission to sell the vehicle saying that the sale will prejudice the accused. The court said that the vehicle is a vital material to prove the innocence of the accused.

The High Court said the interest of the accused can be safeguarded by following the directions in Sunder Bhai Ambalai Desai and Others v Gujarat (2002) and General Insurance Council and Others v State of Andhra Pradesh and Others (2010). The Apex Court laid down the following guidelines in these cases.

1. The necessary photograph may be taken duly authenticated and certified, and a detailed punchnama may be prepared before the release of the vehicle.
2. The photograph can be used as a secondary evidence and physical production of the vehicle can be dispensed with.
3. The Court should record the evidence promptly so there is no further chance to tamper with the articles.

The Supreme Court in these cases discussed about the necessity to release the vehicle expeditiously. The vehicle if kept in police stations occupy space and when kept in open areas, it is prone to fast decay. Even a good vehicle will not be in a condition to be taken back to road if it is kept idle in the station for more than fifteen days. Apart from this, several valuable parts of the vehicle are stolen when it is kept idle for long periods.

The Court directed the designated court to prepare an inventory and take photos of the vehicles to be used for trial. The Court allowed the State to with auction the vehicle after that.

Counsel for Appellant: Public Prosecutor Adv. Pushpalatha M. K.

Case No.: Crl. Appeal No: 1321 of 2023

Case Title: State of Kerala v Nishad

Citation: 2024 LiveLaw (Ker) 465