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TMI Blog2025 (1) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... /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. 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. This Court is of the view that criminal law has not to be applied in a vacuum but to the facts of each case. Consequently, it is only in the first two scenarios that the vehicle may not be released on superdari till reverse burden of proof is discharged by the accused-owner. However, in the third and fourth scenarios, where no allegation has been made in the charge-sheet against the owner and/or his agent, the vehicle should normally be released in the interim on superdari subject to the owner furnishing a bond that he would produce the veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o stop at naka checking point. The Police officer searched the Vehicle and found two identical soap boxes containing suspected heroin which was covered in black polythene, kept concealed inside the Tarpaulin and kept at the hood of the Vehicle. 5. The main accused namely, Md. Dimpul, in this connection, was arrested by the Police Officer. After a field test, the said suspected substance was confirmed to be 24.8 gms. of heroin. ARGUMENTS ON BEHALF OF THE APPELLANT 6. According to the appellant, accused-Md. Dimpul boarded the Vehicle from Manipur as is stated by the driver of the Vehicle namely Joherul Ali. It is averred in the petition that neither the appellant (owner of the truck) nor his driver was aware that the said accused-Md. Dimpul was in possession of the said substance and was carrying the same. Moreover, the driver and helper have been cited as witnesses in the case as according to the appellant they were not involved in the offence. 7. The remand report of the arrested person clearly states that the suspected heroin was recovered and seized from the possession of the accused-Md. Dimpul. 8. Thereafter, on 01st August, 2023, a chargesheet was filed before the Court of Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on with case references: S. No FIR No. State District Police Station Description of case Details of Conviction / Acquittal (xvii) Status of the accused: FORWARDED TO COURT 12. Particulars of accused person not charge sheeted (suspect): 13. Particular of witnesses to be examined : S.No Name Father s/ Husband s name Dated/ Year of birth Occupation Address Type of evidence to be tendered 1 Dhurba Das Present Address: DILLAI PS,KARBIAN GLONG, ASSAM, INDIA Permanent Address: DILLAI PS, KARBIANGL ONG, ASSAM. INDIA Arrest Memo witness 2 Krishna Ch Das Present Address: DILLAI PS, KARBIANGL ONG, ASSAM, INDIA Permanent Address: DILLAI PS, KARBIANGL ONG, ASSAM. INDIA Arrest Memo witness 3 Rajib Borah Father: Dhaniram Borah 1992 Present Address: DILLAI PS, KARBIANGL ONG, ASSAM, INDIA Permanent Address: DILLAI PS, KARBIANGL ONG, ASSAM. INDIA Complainants 4 Sarat Kakoti 02/11/1993 Present Address: ASSAM, INDIA Permanent Address: ASSAM, INDIA IO 5 Shri John Das Present Address: BOKAJAN, KARBIAN GLONG, ASSAM, INDIA Permanent Address: BOKAJAN, KARBIAN GLONG, ASSAM, INDIA Other Witness 6 Jiten Gogoi Father: Late Mukta Gogoi Present Address: DILLAI PS, KARBIANGL ONG, ASSAM, INDIA Permanent Address: D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted drugs is belongs to one another person of the vehicle namely Md Dimpul Ali S/O Mansur Ali R/O No. 2 Meda, PS Sorbhog, Dist Barpeta, Assam who was came with him from Dimapur and he kept the soap box inside the tarpaulins. Suspected recovered from the vehicle was subjected to field test by using Deflection Kit in presence of SDPO Bokajan and above name eye witnesses and the result comes positive for Heroin. The recovered 02 (two) packets of Identical soap boxes has been weighed by using digital weight machine belonging to PP (which was quoted in Lahorijan pp gde No. 537 Dated 31/12/2023) and found total 24.8 grams after weight. Accordingly the recovered soap boxes containing suspected to be Heroin along with other items were seized the recovered psychotropic substance. Sealed and packet the psychotropic substance at PO in presence of independent witnesses. Open the sealed packed before Hon ble Judicial Magistrate 1st class, Bokajan and drawn the sample and samples have sent to Forensic science Kahilipara Guwahati for examination. The suspected accused person have been arrested and forwarded to the Judicial custody. Expert opinion report was collected and the report is positive fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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. * * * 457. Procedure by police upon seizure of property. (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 esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court . ii. Section 51 of the NDPS Act: The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. iii. Section 52A(1): The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine . iv. Section 60 of the NDPS Act: 60. Liability of illicit drugs, substances, plants, articles and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced hereinbelow:- A. Smt. Narender Kaur vs. Arun Sheoran, Intelligence Officer, Narcotics Control Bureau, 2000 SCC OnLine Del 502 wherein it has been held as under:- 12. This Act obviously is a special legislation intended to deal with a great global malady of drug abuse caused due to drug trafficking. To that extent, it is a complete code. Any other provision of law if it impinges on the objects sought to be achieved by this Act will be contrary to this enactment and necessarily over-ridden by the Act, expressly or by implication. Conveyance used for carrying the contraband is liable to confiscation, of course, after making due inquiry. Second proviso to Sub-section (2) of Section 63 of the Act itself provides for interim orders for the disposal of any article or thing other than a narcotic drug etc. which is liable to speedy and natural decay, or if the Court is of the opinion that its sale would be for the benefit of its owner, to direct it to be sold. This specifically provides for interim orders regarding disposal of seized articles or goods other than the contraband, and obviously includes a conveyance used in transportation. This by necessary implication excludes any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e some other person claims ownership of the vehicle, the vehicle could be given to him by way of interim custody. In that case, persons engaged in such illegal trafficking would find it more advantageous not to use their own vehicle but use vehicle of someone else and in the latter case merely by the flat of mere saying of owner of such vehicle that the vehicle was used without his or his agent's knowledge or connivance or of the personin- charge of the conveyance, he would be able to secure the interim custody of the vehicle. And such vehicle could again be similarly used. This is likely to defeat the very purpose of the Act which provides for confiscation of such vehicle. Such an Interpretation, in my respectful view, would be against the object and purpose of the Act. 15. Assuming the petitioner is the owner of the vehicle but the question whether the vehicle was used without her knowledge or connivance is a question of fact to be determined after evidence, if any, is produced in proper inquiry. It may not be safe always to accept such a plea as a gospel truth to give interim custody of the vehicle to such a person. Question remains that the vehicle in question was used as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the conveyance 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 animal or conveyance and that each of them had taken all reasonable precaution against such use. There is no dispute that the vehicle in question was found to be carrying certain narcotics. The bone of contention of the appellant is that in view of the hirepurchase agreement, the appellant continues legally to be the owner of the vehicle so long as the entire hire-purchase money has not been paid and therefore unless and until it is established that the vehicle was used for carrying of narcotics with the knowledge of the appellant, an order of confiscation could not have been passed. In support of this contention, reliance has been placed on a decision of a learned Single Judge of the Rajasthan High Court in the case of Punjab Kashmir Finance (P) Ltd. v. State [1993 Cri LJ 498 (Raj)]. The expression owner has not been defined in the NDPS Act. There is also no dispute that under the hire-purchase agreement the title to the vehicle is retained with the appellant until and unless the entire hire-purchase money is paid back. But, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the learned Single Judge dated 9/4/2019. It was noticed that this Court in Hassainar Aseez B. v. State of Kerala (2017 (2) KLT 741) held that a vehicle which was seized under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) could be released subject to certain conditions if an application is filed u/s 451 of the Criminal Procedure Code. It was observed that S.52A of the NDPS Act read with the judgment of the Apex Court in Union of India v. Mohanlal [(2016) 3 SCC 379] indicates that the Magistrate does not have jurisdiction to pass orders u/s 451 Cr.P.C. In the light of the aforesaid controversy, the matter has been referred to this Court. xxx xxx xxx 6. When a Special Act prescribes the procedure for dealing in specified goods and the NDPS Act being a special statute and latter in time, the provisions of the special statute has to be followed by the Magistrate. In other words, the Magistrate may not have jurisdiction to entertain a petition u/s 451 of Cr.P.C. in the light of the special provision made u/s 52A of the NDPS Act. In fact, in Mohanlal (supra), the Apex Court had issued certain directions which are extracted hereunder:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained in the NDPS Act for grant of interim custody in order to protect the innocent owner of the vehicle. It would not be out of context to state that Section 37 of the NDPS Act provides that the bail can only be granted where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The spirit of section 37 and the other provisions of the said Act make it clear that strict applications thereof are required to achieve the purpose, so that further offence relating to illicit traffic in narcotic drugs and psychotropic substances could be prevented. Before passing an order of releasing the vehicle involved in such offence, the court has to satisfy the reasons which justify such release. The NDPS Act is a special Act, which has been enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. In the present case petitioner/owner of the vehicle herself is an accused and she is still absconding and did not make co-operation with the investigating agency, in spite of repeated reminders. Accordingly it would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten adopt the strategy of using vehicles that are not directly linked to their own ownership in order to evade law enforcement scrutiny and to reduce the risk of detection and confiscation. Accordingly, she prayed that the seized vehicle be not released. COURT S REASONING NO SPECIFIC BAR/ RESTRICTION UNDER THE NDPS ACT FOR RELEASE IN THE INTERIM OF ANY SEIZED VEHICLE. 19. Having heard learned counsel for the parties and having examined the issue at hand, this Court finds that different Courts have taken divergent views with regard to interim release of conveyances during the pendency of the trial in NDPS cases. While the courts in cases referred to by learned counsel for the Respondent-State of Assam have not released the vehicles in the interim during NDPS trial, yet in General Insurance Council Ors. vs. State of Andhra Pradesh, (2010) 6 SCC 768; Gurbinder Singh @ Shinder vs. State of Punjab, 2016 SCC OnLine P H 16026; Tej Singh vs. State of Haryana, 2020 SCC OnLine P H 4679; Shams Tavrej vs. Union of India, 2023 SCC OnLine All 1154; Manakram vs. State of Madhya Pradesh, Crl. Rev. 2421/2021; Nirmal Singh vs. State of Punjab, CRR- 1208-2018 (O M); Kawal Jeet Kaur vs. State of Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernor of HMP Drake Hall [2010] UKSC 30]. Lord Saville says simply: I would allow this appeal. For the reasons given by Lord Phillips and Lord Mance, I have no doubt that by one route or another the legislation must be construed so as to avoid what would otherwise produce irrational and indefensible results that Parliament could not have intended 26. If the respondent-State s interpretation is accepted, then in a case where an accused is arrested carrying heroin in a private plane or a private bus or a private ship without the knowledge and consent of the management and staff of the private plan or bus or ship, the plane/bus/ship would have to be seized till the trial is over! 27. Though the risk of misuse by the accused or third party of the same plane or bus or ship cannot be ruled out, yet the Courts do not take coercive action on the basis of fear or suspicion or hypothetical situation. 28. Undoubtedly, the Vehicle is a critical piece of material evidence that may be required for inspection to substantiate the prosecution s case, yet the said requirement can be met by stipulating conditions while releasing the Vehicle in interim on superdari like videography and still photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inds that after conclusion of investigation, a chargesheet has been filed in the Court of Special Judge, NDPS Karbi Anglong. In the said chargesheet, neither the owner of the Vehicle nor the driver has been arrayed as an accused. Only a third-party occupant has been arrayed as an accused. The police after investigation has not found that the appellant i.e. the owner of the vehicle, has allowed his vehicle to transport contraband drugs/ substances with his knowledge or connivance or that he or his agent had not taken all reasonable precautions against such use. Consequently, the conveyance is entitled to be released on superdari. 33. In fact, the Supreme Court in similar facts in Sainaba vs. State of Kerala and Another, 2022 SCC OnLine SC 1784 has held as under:- 6. The appellant has urged inter alia that as per Section 36- C read with Section 51 of the NDPS Act, Criminal Procedure Code would be applicable for proceedings by a Special Court under NDPS Act and Section 451 has an inbuilt provision to impose any specific condition on the appellant while releasing the vehicle. The appellant is undoubtedly the registered owner of the vehicle but had not participated in the offence as all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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