Supreme Court of India
Bishwajit Dey vs The State Of Assam on 7 January, 2025
Author: Dipankar Datta
Bench: Dipankar Datta
2025 INSC 32 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 87 OF 2025
(Arising out of Special Leave Petition (Crl.)No.13370 of 2024)
BISHWAJIT DEY .…. APPELLANT
VERSUS
THE STATE OF ASSAM ..…RESPONDENT
JUDGMENT
MANMOHAN, J
1. Leave granted.
2. The Criminal Appeal has been filed challenging the impugned
judgment and order dated 23rd January, 2024 passed by the Gauhati High
Court at Assam in Case number Crl. Rev. No.P/483/2023, whereby the
appellant’s writ petition challenging the order dated 09th October, 2023
passed by the Additional Sessons Judge Karbi Anglong, Diphu, in Dillai
Police Station case No.32/2023, corresponding to G.R. Case No.150/2023
dated 05th October, 2023 was dismissed.
RELEVANT FACTS
Signature Not Verified
3. Briefly stated the relevant facts of the present case are that the
Digitally signed by
rashmi dhyani pant
Date: 2025.01.07
17:42:48 IST
Reason:
appellant had purchased a Truck for commercial purpose bearing
Registration No.AS-01-NC-4355 (hereinafter referred to as “the Vehicle”)
Special Leave Petition (Crl.) No. 13370/2024 Page 1 of 31
with the intent of plying the same. The Vehicle was purchased on monthly
Equated Monthly Instalment of Rs.1,00,020/- (One lakh and twenty rupees)
and according to the appellant, it is his only source of income.
4. On 10th April, 2023, the Vehicle was coming from Dimapur side and
was signaled to 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.
Special Leave Petition (Crl.) No. 13370/2024 Page 2 of 31
8. Thereafter, on 01st August, 2023, a chargesheet was filed before the
Court of Special Judge, NDPS by Sub-Inspector Sarat Kakoti under Section
21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short ‘NDPS Act’) wherein it was stated that the accused-Md.Dimpul
carried the suspected heroin. Since learned counsel for the appellant placed
heavy reliance on the charge-sheet, the same is reproduced hereinbelow in
its entirety:
“N.C.R.B
L.I.F.-VFINAL FORM REPORT
(Under section 173 Cr.P.C.)IN THE COURT OF : In the court of Special Judge
NDPS Diphu Karbi Anglong
1. District : KARBINGLONG P.S. : DILLAI PS
Year : 2023FIR No. :0032 Date : 10/04/2023
2. Final report / Change Sheet No.
3. Date : 01/08/2023
4. S.No. Acts Sections
1 NARCOTIC DRUGS AND
PSYCHOTROPIC 21(b)
5. Type of Final Form Report : CHARGE SHEET
6. If FR Unoccurred
7. If Charge school : Original
8. name of I.O.at the time of charge sheet :
Special Leave Petition (Crl.) No. 13370/2024 Page 3 of 31
SARAT KAKOTI Rank : SI
No.
9. (a) Name of complainant / Informant :
Rajib Borah
(b) Father’s Name : Dhaniram Borah
10. Detail of Properties/Articles/Documents recovered/seized during
Investigation and relied upon:
S.No. Property Estimated Police From Disposal
Description Value (in Station whom /
Rs.) Property where
Register No. revered
or seized
1 ELECTRICAL 000184/2023 /NH-36 in
AND front of
ELECTRONIC Lahorijan
GOODS PP
2 DRUGS / 000183/2023 /NH-36 in
NARCOTIC DRUGS front of
Lahorijan
PP
3 DOCUMENTS 000182/2023 /NH-36 in
AND VALUABLE front of
SECURITIES Lahorijan
PP
4 AUTOMOBILES 000181/2023 /NH-36 in
AND OTHERS front of
Lahorijan
PP
11. Particulars of accused charge-sheet : S.No.
1
(i) Name: Md. Dimpul Ali
Whether verified : Yes
(ii) Father’s Name:
(iii) Data/ Year of birth : 1993
(iv) Sex: male
(v) Nationality : INDIA
(vi) Passport No. :
Date of Issue:
Special Leave Petition (Crl.) No. 13370/2024 Page 4 of 31
Place of Issue:
(vii) Religion :
(viii) Whether SC/ST/OBC: GENERAL
(ix) Occupation:
(x) Address:
1 Present Address No.2 Meda, Charaibari,
SORBHOG, BARPETA, ASSAM,
INDIA
2 Permanent Address No.2 Meda, Charaibari,
SORBHOG,BARPETA,
ASSAM, INDIAWhether verified: Yes
Regular Criminal No. :
(xii) Date of arrest: 10/04/2023
(xiii) Date of release on bail:
(xiv) Date on which forwarded to court:
(xv) Under Acts & Sections:
S.No. Acts
Sections
(xvi) Details of bailers / sureties:
N.C.R.B.
L.I.F.-VName:
Father’s / Husband’s name:
Occupation:
Address:
S.No. Address Type Address
Identification: Date of
Birth:
UID Number:
Any Other ID Proof:
S.No. Id Type ID Number
(xvii) Previous conviction with case references:
S.No FIR State District Police Description Details of
No. Station of case Conviction
/ AcquittalSpecial Leave Petition (Crl.) No. 13370/2024 Page 5 of 31
(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/ Dated/ Occupa Address Type of
Husband’s name Year of tion evidence to
birth be
tendered
1 Dhurba Present Arrest
Das Address: Memo
DILLAI witness
PS,KARBIAN
GLONG,
ASSAM,
INDIA
Permanent
Address:
DILLAI
PS,
KARBIANGL
ONG,
ASSAM.
INDIA
2 Krishna Present Arrest
Ch Das Address: Memo
DILLAI PS, witness
KARBIANGL
ONG,
ASSAM,
INDIA
Permanent
Address:
DILLAI PS,
KARBIANGL
ONG,
ASSAM.
INDIA
3 Rajib Father: 1992 Present Complainants
Borah Dhaniram Borah Address:
DILLAI
PS,
KARBIANGL
ONG,
ASSAM,
INDIA
Permanent
Special Leave Petition (Crl.) No. 13370/2024 Page 6 of 31
Address:
DILLAI
PS,
KARBIANGL
ONG,
ASSAM.
INDIA
4 Sarat 02/11/1993 Present IO
Kakoti Address:
ASSAM,
INDIA
Permanent
Address:
ASSAM,
INDIA
5 Shri John Present Other
Das Address: Witness
BOKAJAN,
KARBIAN
GLONG,
ASSAM,
INDIA
Permanent
Address:
BOKAJAN,
KARBIAN
GLONG,
ASSAM,
INDIA
6 Jiten Father: Late Present Other
Gogoi Mukta Gogoi Address: Witness
DILLAI
PS,
KARBIANGL
ONG,
ASSAM,
INDIA
Permanent
Address:
DILLAI
PS,
KARBIANGL
ONG,
ASSAM.
INDIA
7 Sankar Present Other
Mahana Address: Witness
yak DILLAI
Special Leave Petition (Crl.) No. 13370/2024 Page 7 of 31
PS,
KARBIANGL
ONG ,
ASSAM,
INDIA
Permanent
Address:
DILLAI
PS,
KARBIANGL
ONG,
ASSAM.
INDIA
8 Baidujya Present Other
Khanikar Address: Witness
DILLAI
PS,
KARBIANGL
ONG,
ASSAM,
INDIA
Permanent
Address:
DILLAI
PS,
KARBIANGL
ONG,
ASSAM.
INDIA
9 Mintu Present Other
Daimary Address: Witness
DILLAI
PS,
KARBIANGL
ONG,
ASSAM,
INDIA
Permanent
Address:
DILLAI
PS,
KARBIANGL
ONG,
ASSAM
INDIA
10 Monjur Father: 1989 Present Search
Ahmed Abdul Address: & siege
Kluqu Dhainsing Witness
Engleng,
DILLAI
Special Leave Petition (Crl.) No. 13370/2024 Page 8 of 31
PS,
KARBIANGL
ONG,
ASSAM,
INDIA,
Permanent
Address:
Kania
Tokbi,
DILLAI
PS,
KARBINGLO
NG,
ASSAM,
INDIA
11 Ramesh Father: 1985 Present Search
Raj Jagat Bh. Address: & siege
Rai Kania Witness
Tokbi,DILLAI
PS,KARBING
LONG,
ASSAM,
INDIA
Permanent
Address:
Kania
Tokbi,DILLAI
PS,ASSAM,
INDIA
Permanent
Address:
Kania
Tokbi,DILLAI
PS,KARBING
LONG,
ASSAM,
INDIA
12 Joherul Father: 1971 Present Search
Ali Jagat Bh. Address: & siege
Rai BONGAIGA Witness
ON,BON
GAIGAON,
ASSAM,
INDIA
14. If FR is false (F.R. false), indicate action taken
or proposed to be taken u/s 182/211 I.P.C /217/248 B.N.S:
15. Result of Laboratory analysis :
Special Leave Petition (Crl.) No. 13370/2024 Page 9 of 31
16. Brief facts of the case :
The brief of the case is that on 10/04/2023 informant SI (UB)
Rajib Borah of Dillai PS lodged an FIR at PS stating that based on
a specific information received from reliable source, a Naka checking
was conducted by self along with ASI Jiten Gogoi, Ic Lahorijan and
staff on NH 36 in front of Lahorijan PP. During checking at about
06:20 AM one Truck B/R No. AS 01 NC 4355 which was coming from
Dimapur side was signaled to stop at Naka checking point and the
vehicle stopped. After receiving authorization from SDPO Bokajan
to search the vehicle, I have served Notice U/S 50 NDPS Act to the
driver of the said vehicle whom I have explained about the notice
Clearly and on their concerned I along with my staff started search
of the vehicle in presence of independent witnesses. On thorough
search of the vehicle, total 02 (two) nos, identical soap boxes
containing suspected to be Heroin covered with black polythene
which was kept concealed inside the Tarpaulin and kept at the hood
of the truck. During spot interrogation, the driver of the vehicle
Joherul Ali 52 Yrs S/O Lt Ahmed Choudhary, R/O Morth
Bongaigaon, PS Bongaigaon stated that the suspected 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 for Heroin. The recovered psychotropic substances
have identified as Heroin, which are highly addictive drugs that
affect Central Nervous System. It is an illegal drug with high market
value and its uses have immense medical, social and economic
consequences. Its uses have been increasing in today’s society andSpecial Leave Petition (Crl.) No. 13370/2024 Page 10 of 31
mostly amongst the young generation which has devastating impact
on human resource as well as social health. The drug trafficking
involves a huge national international gang which is also seen to be
prevalent in Assam. The arrested accused person revealed that he
carried the Heroin form Dimapur. This statement proves the
interstate transition of psychotropic substances. Above facts and
circumstance, a prima facie is found well established U/S 21 (b) of
NDPS Act against the arrested accused person. I have sent the
arrested accused person named Md. Dimpul Ali S/O Mansur Ali, R/O
No.2 Meda, PS Sorbhog . Dist, Barpeta Honble court for trial against
him under aforementioned section of Law.
17. Refer Notice served : No Date:
18. Dispatched on:
19. No. of enclosures 4
20. List of enclosures: As annexed:
IIF1.pdf, IIF2.pdf, IIF3-1.pdf, IIF4-1 pdf
Forwarded by Officer in charge
Name: Nitul Saikia
Rank: SI (Sub-Inspector)
No.:
Signature of Investigation Officer submitting final
report/charge sheetName: SARAT KAKOTI
Rank: SI (Sub-Inspector)
No.:”
9. Learned counsel for the appellant stated that the Vehicle since seized
has been lying unattended at the Police station campus and the same is lying
exposed to sun and rain thereby rendering it to natural wear and tear and
deterioration. He referred to and relied upon Sections 451 and 457 of the
Code of Criminal Procedure (‘for short ‘Cr.P.C.’) to seek release of the
Vehicle. The relevant portions of Sections 451 and 457 of Cr.P.C. are
reproduced hereinbelow:-
Special Leave Petition (Crl.) No. 13370/2024 Page 11 of 31
“451. Order for custody and disposal of property pending trial in
certain cases.—When any property is produced before any criminal
court during any inquiry or trial, the court may make such order as
it thinks fit for the proper custody of such property pending the
conclusion of the inquiry or trial, and, if the property is subject to
speedy and natural decay, or if it is otherwise expedient so to do, the
court may, after recording such evidence as it thinks necessary,
order it to be sold or otherwise disposed of.
Explanation.—For the purposes of this section,‘property’ 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
establish his claim within six months from the date of such
proclamation.”
10. He submitted that this Court in the case of Sunderbhai Ambala
Desai V. State of Gujarat, (2002) 10 SCC 283 has held, “In our view,
whatever be the situation, it is of no use to keep such 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
Special Leave Petition (Crl.) No. 13370/2024 Page 12 of 31
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.”
11. He pointed out that the High Court of Judicature at Patna in Bhola
Singh @ Ayush Singh vs. The State of Bihar, Criminal Misc. No.
40912/2016, has held that “…… As far as vehicle is concerned, there was
no reason to reject the application of the petitioner for its release to interim
custody of the applicant claiming to be bona fide owner of the vehicle
subject to the certain conditions to ensure production of the vehicle to the
court as and when required during pendency of the trail or confiscation
proceeding………”
12. In view of the above judgments, he prayed that the Vehicle be
released to the appellant, being its rightful owner, subject to conditions as
may be imposed by the trial Court.
ARGUMENTS ON BEHALF OF THE RESPONDENT-STATE OF ASSAM
13. Per contra, learned counsel for the respondent-State of Assam
submitted that the NDPS Act, which deals with drug trafficking, is a special
enactment and a complete code in itself. [See: Noor Aga vs. State of Punjab
& Another, (2008) 16 SCC 417; Mukesh Singh vs. State (Narcotic Branch
of Delhi), (2020) 10 SCC 120 and Directorate of Revenue Intelligence vs.
Amit Kumar, 2016 SCC OnLine Del 6083]. According to her, the NDPS
Special Leave Petition (Crl.) No. 13370/2024 Page 13 of 31
Act does not – unlike the Code of Criminal Procedure – contemplate interim
release of a seized conveyance during pendency of the trial.
14. She stated that for the adjudication of this case, Chapter IV (Offences
and Penalties) and Chapter V (Procedure) of NDPS Act are relevant, as they
encompass the provisions directly applicable to the alleged offences and the
procedural mechanisms to address them. The relevant provisions of
Chapter IV and V of the NDPS Act relied upon by the learned counsel for
respondent-State are reproduced hereinbelow:-
i. Section 36C of the NDPS Act: “Save as otherwise provided
in this Act, the provisions of the Code 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….”Special Leave Petition (Crl.) No. 13370/2024 Page 14 of 31
iv. Section 60 of the NDPS Act:
“60. Liability of illicit drugs, substances, plants, articles and
conveyances to confiscation.—[(1) Whenever any offence
punishable under this Act has been committed, the narcotic
drug, psychotropic substance, controlled substance, opium
poppy, coca plant, cannabis plant, materials, apparatus and
utensils in respect of which or by means of which such offence
has been committed, shall be liable to confiscation.](2) Any narcotic drug or psychotropic substance [or controlled
substances] lawfully produced, imported inter-State, exported
inter-State, imported into India, transported, manufactured,
possessed, used, purchased or sold along with, or in addition
to, any narcotic drug or psychotropic substance [or controlled
substances] which is liable to confiscation under sub-section
(1) and there receptacles, packages and coverings in which
any narcotic drug or psychotropic substance [or controlled
substances], materials, apparatus or utensils liable to
confiscation under sub-section (1) is found, and the other
contents, if any, of such receptacles or packages shall likewise
be liable to confiscation.
(3) Any animal or conveyance used in carrying any narcotic
drug or psychotropic substance [or controlled substances], or
any article liable to confiscation under sub-section (1) or sub-
section (2) shall be liable to confiscation, unless the owner of
the animal or 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 precautions
against such use.
v. Second Proviso to Section 63 of the NDPS Act:
63. ……..
Provided further that if any such article or thing, other than a
narcotic drug, psychotropic substances [controlled
substance], the opium poppy, coca plant or cannabis plant 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, it
may at any time direct it to be sold; and the provisions of this
Special Leave Petition (Crl.) No. 13370/2024 Page 15 of 31
sub-section shall, as nearly as may be practicable, apply to the
net proceeds of the sale.”
15. She further submitted that the question that arises for consideration
in the present case, arose for consideration before the High Courts of Delhi,
Kerala and Calcutta where the interpretation forwarded by the respondent-
State has been affirmed. The judgments relied upon by learned counsel for
the respondent-State are reproduced 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 interim order to be made.
13. The provisions of Section 451 which provides for order for
interim custody and disposal of the property pending trial is
identical, in case the property is subject to speedy and natural decay
and if it is otherwise in the interest of the owner. To this extent, the
provisions of Section 451 of the Code are not applicable. The
Bombay High Court in B.S. Rawant case (supra), in this behalf, in
para 10, has observed as under:—Special Leave Petition (Crl.) No. 13370/2024 Page 16 of 31
“10. The object of the Act is to see that the vehicle which is used for
such an offence is not made available to the persons who have
indulged in these activities. They shall not have the benefit of such
a vehicle. By and large if an accused person is himself the owner of
the vehicle and he uses such a vehicle for the purpose of conveying
the drugs, then of course, it is possible for the prosecution to
contend that it is against the interest of Justice that such a vehicle
be given to the accused pending the trial. But in a given case, it
might be that a vehicle belonging to innocent owner is stolen by the
accused, and in that event, seized by the officer, it does not mean
that such an owner has to wait till the trial is completed for the
purpose of getting an order of return of the vehicle from the
Magistrate. In such cases, subject to a guarantee that the vehicle
becomes available for the purpose of confiscation, if any, the Court
has necessarily the Jurisdiction to pass an order for interim custody
either under S. 451 or S. 457(1) of the Criminal P.C. as the case
may be. An order under S. 451 or S. 457(1) of the Criminal P.C.
Guarantees return of the vehicle at the time of the final hearing of
the matter, or as and when called upon by the Court. It secures,
subject to certain terms and conditions, the interim custody of the
vehicle, pending the trial. In fact, the operation of S. 451 or S.
457(1) of the Criminal P.C. comes into existence only after the
vehicle is seized and brought into safe custody, as provided under
Section 55 of the Act. If it is so, it cannot be said that Section 451
or Section 457(1) of the Criminal P.C. is in any way inconsistent
with the scheme of the Act.”
14. According to this reasoning, there would be two yardsticks to
be used, one in case the person carrying the contraband is the owner
of the vehicle, that vehicle would not be given on interim custody to
its owner, and another in case 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 person-
in-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.
Special Leave Petition (Crl.) No. 13370/2024 Page 17 of 31
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 conveyance by the accused who is the
husband of the petitioner for carrying the contraband. There seems
to be no sound reason that if the owner is not entitled to interim
custody of such vehicle because the vehicle is liable to be
confiscated, why another person who may be the owner of the vehicle
should be given the custody of the vehicle during the pendency of the
case till he proves his non-complicity. As also observed by the
Bombay High Court, the purpose of the Act is to see that the vehicle
which is used for such conveyance is not made available to the
persons indulging in these activities. Confiscation of the vehicle is
an additional safeguard to discourage this crime.
16. As already noticed, the vehicle has been kept secured in a
garage and it is not lying in open and as such there is no danger of
it being damaged by vagaries of weather. If the vehicle is returned to
the petitioner and ultimately it is held that it is liable to be
confiscated, its use by the petitioner will benefit the petitioner and
defeat the purpose and object of the Act and when ultimately it is to
be confiscated it would have lost its value. Moreover, accused Amar
Pal Singh is the husband of the petitioner Smt. Narender Kaur. In his
statement made before the investigating officer on 25-3-1997 under
Section 67 of the Act, he has stated that this car was purchased in the
year 1997 and was a second-hand one; it is in the name of his wife
but was purchased by them after selling another Car No. DL-2C B-
3835; some amount was contributed by his wife and some amount
was contributed by him. In the circumstances, it is also not certain
whether the car exclusively belongs to the petitioner. It is also seen
that on search of his house at C-89. Fateh Nagar, New Delhi, inter
alia, 4 gms. of Heroin, one vacuum sealer, small weighing scale were
recovered. This would show that some activity in drug is also being
done at the house where the petitioner lives. This must be in the
knowledge of the petitioner. The use of the car in the present case in
the circumstances may not be without her knowledge.
Special Leave Petition (Crl.) No. 13370/2024 Page 18 of 31
B. Ganga Hire Purchase Pvt. Ltd. Vs. State of Punjab and
Others, (1999) 5 SCC 670 wherein it has been held as under:-
“2. Under sub-section (3) of Section 60 of the NDPS Act, any animal
or conveyance used in carrying any narcotic drug or psychotropic
substance is liable to confiscation, unless the owner 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 hire-
purchase 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, if the contention of the
appellant is accepted, then all the vehicles which have been
purchased on hire purchase basis, cannot be confiscated
notwithstanding the fact that the vehicles were found to be used for
commission of offences under the NDPS Act in carrying narcotic and
psychotropic substances. The very purpose for engrafting sub-
section (3) of Section 60 of the NDPS Act is to have it as a deterrent
measure to check the offences under the Act in question which have
been found to be dangerous to the entire society. In the absence of
any definition of “owner” in the NDPS Act, it would be reasonable
for us to construe that the expression “owner” must be held to mean
the “registered owner” of the vehicle in whose name the vehicle
stands registered under the provisions of the Motor Vehicles Act.
3. In view of the aforesaid interpretation of the expression “owner”
in sub-section (3) of Section 60 of the NDPS Act, the appellant cannot
be permitted to urge that the order for confiscation is bad as he had
no knowledge of the fact that the vehicle was used for carrying any
narcotic substances. The High Court, therefore, in our opinion, wasSpecial Leave Petition (Crl.) No. 13370/2024 Page 19 of 31
justified in rejecting the contention of the appellant that the truck in
question having been taken on a hire-purchase agreement, for the
purpose of sub-section (3) of Section 60, the appellant shall be
treated to be the owner.”C. Union of India vs. Dinesh Kumar Verma, (2005) 9 SCC 330
wherein it has been held as under:-
“3. By the impugned order, the High Court has directed for
release of the vehicle during trial of the accused for violation of the
provisions of the Narcotic Drugs and Psychotropic Substances Act,
1985 (the NDPS Act). In our view, in the facts and circumstances of
the present case, the High Court was not justified in releasing the
vehicle.
4. Accordingly, the appeal is allowed, the impugned order
rendered by the High Court is set aside and the prayer for release of
vehicle made on behalf of the respondent is rejected. The respondent
is directed to surrender the vehicle within a period of one month from
today, failing which it would be open to the police to seize the same
and report compliance to this Court within a period of six weeks from
today.”D. Shajahan vs. Inspector of Excise and Others, 2019 SCC
OnLine Ker 3685 wherein it has been held as under:-
These matters have come before us by way of a reference as
per order 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
Special Leave Petition (Crl.) No. 13370/2024 Page 20 of 31
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:-
“31. To sum up we direct as under:
31.1. No sooner the seizure of any narcotic drugs and psychotropic
and controlled substances and conveyances is effected, the same
shall be forwarded to the officer in charge of the nearest police
station or to the officer empowered under Section 53 of the Act. The
officer concerned shall then approach the Magistrate with an
application under Section 52-A(2) of the Act, which shall be allowed
by the Magistrate as soon as may be required under sub-section (3)
of Section 52-A, as discussed by us in the body of this judgment under
the heading “seizure and sampling”. The sampling shall be done
under the supervision of the Magistrate as discussed in Paras 15 to
19 of this order.
31.2. The Central Government and its agencies and so also the State
Governments shall within six months from today take appropriate
steps to set up storage facilities for the exclusive storage of seized
narcotic drugs and psychotropic and controlled substances and
conveyances duly equipped with vaults and double-locking system to
prevent theft, pilferage or replacement of the seized drugs. The
Central Government and the State Governments shall also designate
an officer each for their respective storage facility and provide for
other steps, measures as stipulated in Standing Order No. 1 of 1989
to ensure proper security against theft, pilferage or replacement of
the seized drugs.
31.3. The Central Government and the State Governments shall be
free to set up a storage facility for each district in the States and
depending upon the extent of seizure and store required, one storage
facility for more than one districts.
31.4. Disposal of the seized drugs currently lying in the Police
Malkhanas and other places used for storage shall be carried out by
the DDCs concerned in terms of the directions issued by us in the
body of this judgment under the heading “disposal of drugs”.
7. In the light of the aforesaid law laid down by the Apex Court,
the said procedure has to be followed in every case and there is no
two way of looking at it. Apparently, in such instances, going by theSpecial Leave Petition (Crl.) No. 13370/2024 Page 21 of 31
statutory provision under the Special Act, the power of the
Magistrate to consider a claim u/s 451 of Cr.P.C. stands denuded.
Reference is answered accordingly.
E. In Re: Moumita Saha, 2023, SCC OnLine Cal 1094 wherein
it has been held as under:-
“13. It may be that there is no express bar contained 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 not be unreasonable to
hold that the vehicle in question used for committing the offence, if
released on terms, then there would be every chance of committing
such offence with the help of the same vehicle. Petitioner’s innocence
could have been understandable, if she made co-operation with the
investigating agency.
14. Under the said provision if the owner of the vehicle is not an
accused, in that case a separate and independent proceeding has to
be drawn for confiscation in terms of the express provisions in
Section 60(3) of the Act, to protect an innocent owner before
confiscating his vehicle.
15. Accordingly, I am of the view that this is not an appropriate case
where such prayer can be allowed and accordingly, the court below
has not committed any error in rejecting the said prayer made by theSpecial Leave Petition (Crl.) No. 13370/2024 Page 22 of 31
petitioner and as such, the order impugned does not call for any
interference.”
16. She further stated that in the present case, the seized vehicle is a
material evidence that directly links the accused to the commission of the
offence, particularly since it was used as a means to transport and conceal
the contraband substance. She stated that during the course of the trial, the
seized vehicle will be required for inspection, demonstration or verification
to substantiate the prosecution’s case and to establish the manner in which
the offence was committed. This, according to her, includes, but is not
limited to, demonstrating the concealment of the contraband, its storage
within the vehicle etc. She contended that releasing the said seized vehicle
prematurely on zimma would jeopardize the trial, as it may not be available
for such purposes as and when required.
17. She stated that the likelihood of the conveyance, if released, being
used again for transporting/trafficking contraband substances cannot be
ruled out. She contended that vehicles involved in the commission of
offences under stringent laws, such as the NDPS Act, serve as essential
tools for offenders to execute their illegal activities and releasing such a
vehicle prematurely may increase the risk of its reuse.
18. She contended that releasing the seized vehicle on zimma would
encourage the misuse of third-party vehicles for the transportation and
smuggling of drugs, which would significantly undermine the efforts to
Special Leave Petition (Crl.) No. 13370/2024 Page 23 of 31
combat illegal activities. She lastly contended that drug traffickers andsmugglers often 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 Karnataka, 2024:KHC-
K:5691 and Bhagirath vs. State of Rajasthan, 2024: RJ-JD:36868, the
Courts have directed release of the vehicles in the interim in NDPS cases.
Special Leave Petition (Crl.) No. 13370/2024 Page 24 of 31
20. The judgements of this Court are confined to their facts or in the
context of the expression ‘owner’ and do not lay down any general
proposition of law. Consequently, the issue would have to be examined on
first principles.
21. Upon a reading of the NDPS Act, this Court is of the view that the
seized vehicles can be confiscated by the trial court only on conclusion of
the trial when the accused is convicted or acquitted or discharged. Further,
even where the Court is of the view that the vehicle is liable for
confiscation, it must give an opportunity of hearing to the person who may
claim any right to the seized vehicle before passing an order of confiscation.
However, the seized vehicle is not liable to confiscation if the owner of the
seized vehicle can prove that the vehicle was used by the accused person
without the owner’s knowledge or connivance and that he had taken all
reasonable precautions against such use of the seized vehicle by the accused
person.
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
Special Leave Petition (Crl.) No. 13370/2024 Page 25 of 31
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.
COURTS WILL LEAN AGAINST ANY CONSTRUCTION THAT WOULD
PRODUCE AN ABSURD OR UNJUST RESULT.
24. It is trite law that the more absurd a suggested conclusion of
construction is, the more the court will lean against that conclusion. That
is ordinarily so whether one is construing a contract or a statute. [See: Hatzl
v. XL Insurance Co. Ltd. [2009] EWCA Civ. 223].
25. The presumption against absurdity is found in the brief observation
of Lord Saville agreeing with his colleagues in the case of Noone [R (on
the application of Noone) v. Governor 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!
Special Leave Petition (Crl.) No. 13370/2024 Page 26 of 31
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 photographs
to be authenticated by the Investigating Officer, owner of the Vehicle and
accused by signing the said inventory as well as restriction on sale/transfer
of the Vehicle.
BROADLY SPEAKING THERE ARE FOUR SCENARIOS
29. Though seizure of drugs/substances from conveyances can take place
in a number of situations, yet broadly speaking there are four scenarios in
which the drug or substance is seized from a conveyance. Firstly, where
the owner of the vehicle is the person from whom the possession of
contraband drugs/substance is recovered. Secondly, where the contraband
is recovered from the possession of the agent of the owner i.e. like driver
or cleaner hired by the owner. Thirdly, where the vehicle has been stolen by
the accused and contraband is recovered from such stolen vehicle. Fourthly,
where the contraband is seized / recovered from a third-party occupant
(with or without consideration) of the vehicle without any allegation by the
police that the contraband was stored and transported in the vehicle with
Special Leave Petition (Crl.) No. 13370/2024 Page 27 of 31
the owner’s knowledge and connivance. In the first two scenarios, the
owner of the vehicle and/or his agent would necessarily be arrayed as an
accused. In the third and fourth scenario, the owner of the vehicle and/or
his agent would not be arrayed as an accused.
30. 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 vehicle as and when directed by the Court and/or he
would pay the value of the vehicle as determined by the Court on the date
of the release, if the Court is finally of the opinion that the vehicle needs to
be confiscated.
31. This Court clarifies that the aforesaid discussion should not be taken
as laying down a rigid formula as it will be open to the trial Courts to take
a different view, if the facts of the case so warrant.
SUPREME COURT IN SIMILAR FACTS IN SAINABA VS. STATE OF
KERALA AND ANOTHER HAS RELEASED THE VEHICLE
32. In the present case, this Court finds that after conclusion of
investigation, a chargesheet has been filed in the Court of Special Judge,
Special Leave Petition (Crl.) No. 13370/2024 Page 28 of 31
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 alleged by the
prosecution nor had knowledge of the alleged transaction.
7. Learned counsel seeks to rely on the judgment of this Court
in Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC
283 opining that it is no use to keep such seized vehicles at police
station for a long period and it is open to the Magistrate to pass
appropriate orders immediately by taking a bond and a guarantee
as well as security for return of the said vehicle, if required at any
point of time.
8. On hearing learned counsel for parties and in the conspectus of
the facts and circumstances of the case, and the legal provisions
referred aforesaid, we are of the view that this is an appropriateSpecial Leave Petition (Crl.) No. 13370/2024 Page 29 of 31
case for release of the vehicle on terms and conditions to be
determined by the Special Court.
9. The appeal is accordingly allowed leaving parties to bear their
own costs.”IF THE VEHICLE IN THE PRESENT CASE IS KEPT IN THE CUSTODY
OF POLICE TILL THE TRIAL IS OVER, IT WILL SERVE NO PURPOSE
34. This Court is also of the view that if the Vehicle in the present case
is allowed to be kept in the custody of police till the trial is over, it will
serve no purpose. This Court takes judicial notice that vehicles in police
custody are stored in the open. Consequently, if the Vehicle is not released
during the trial, it will be wasted and suffering the vagaries of the weather,
its value will only reduce.
35. On the contrary, if the Vehicle in question is released, it would be
beneficial to the owner (who would be able to earn his livelihood), to the
bank/financier (who would be repaid the loan disbursed by it) and to the
society at large (as an additional vehicle would be available for
transportation of goods).
CONCLUSION
36. Consequently, the present Criminal Appeal is allowed with
directions to the trial Court to release the Vehicle in question in the interim
on superdari after preparing a video and still photographs of the vehicle and
after obtaining all information/documents necessary for identification of
the vehicle, which shall be authenticated by the Investigating Officer, owner
Special Leave Petition (Crl.) No. 13370/2024 Page 30 of 31
of the Vehicle and accused by signing the same. Further, the appellant shall
not sell or part with the ownership of the Vehicle till conclusion of the trial
and shall furnish an undertaking to the trial court that he shall surrender the
Vehicle within one week of being so directed and/or pay the value of the
Vehicle (determined according to Income Tax law on the date of its release),
if so ultimately directed by the Court.
.……………….J.
[Sanjay Karol]
……………….J.
[Manmohan]
New Delhi;
January 7, 2025
Special Leave Petition (Crl.) No. 13370/2024 Page 31 of 31