2025 INSC 32 Special Leave Petition (Crl.) No. 13370/2024 Page 1 of 31

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

J U D G M E N T

MANMOHAN , J

1. Leave granted.

2. The Criminal Appeal has been filed challenging the impugned

judgment and order dated 23

rd

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 09

th

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 05

th

October, 2023 was dismissed.

RELEVANT FACTS

3. Briefly stated the relevant facts of the present case are that the

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 2 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 10

th

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 3 of 31

8. Thereafter, on 01

st

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.-V

FINAL 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 : 2023

FIR 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 4 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

Description

Estimated

Value (in

Rs.)

Police

Station

Property

Register No.

From

whom /

where

revered

or seized

Disposal

1 ELECTRICAL

AND

ELECTRONIC

GOODS

000184/2023

/NH-36 in

front of

Lahorijan

PP

2 DRUGS /

NARCOTIC DRUGS

000183/2023

/NH-36 in

front of

Lahorijan

PP

3 DOCUMENTS

AND VALUABLE

SECURITIES

000182/2023

/NH-36 in

front of

Lahorijan

PP

4 AUTOMOBILES

AND OTHERS

000181/2023

/NH-36 in

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 5 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, INDIA

Whether 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.-V

Name:

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

No.

State District Police

Station

Description

of case

Details of

Conviction

/ Acquittal

Special Leave Petition (Crl.) No. 13370/2024 Page 6 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/

Husband’s name

Dated/

Year of

birth

Occupa

tion

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

Complainants

Special Leave Petition (Crl.) No. 13370/2024 Page 7 of 31

Address:

DILLAI

PS,

KARBIANGL

ONG,

ASSAM.

INDIA

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:

DILLAI

PS,

KARBIANGL

ONG,

ASSAM.

INDIA

Other

Witness

7 Sankar

Mahana

yak

Present

Address:

DILLAI

Other

Witness

Special Leave Petition (Crl.) No. 13370/2024 Page 8 of 31

PS,

KARBIANGL

ONG ,

ASSAM,

INDIA

Permanent

Address:

DILLAI

PS,

KARBIANGL

ONG,

ASSAM.

INDIA

8 Baidujya

Khanikar

Present

Address:

DILLAI

PS,

KARBIANGL

ONG,

ASSAM,

INDIA

Permanent

Address:

DILLAI

PS,

KARBIANGL

ONG,

ASSAM.

INDIA

Other

Witness

9 Mintu

Daimary

Present

Address:

DILLAI

PS,

KARBIANGL

ONG,

ASSAM,

INDIA

Permanent

Address:

DILLAI

PS,

KARBIANGL

ONG,

ASSAM

INDIA

Other

Witness

10 Monjur

Ahmed

Father:

Abdul

Kluqu

1989 Present

Address:

Dhainsing

Engleng,

DILLAI

Search

& siege

Witness

Special Leave Petition (Crl.) No. 13370/2024 Page 9 of 31

PS,

KARBIANGL

ONG,

ASSAM,

INDIA,

Permanent

Address:

Kania

Tokbi,

DILLAI

PS,

KARBINGLO

NG,

ASSAM,

INDIA

11 Ramesh

Raj

Father:

Jagat Bh.

Rai

1985 Present

Address:

Kania

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

Search

& siege

Witness

12 Joherul

Ali

Father:

Jagat Bh.

Rai

1971 Present

Address:

BONGAIGA

ON,BON

GAIGAON,

ASSAM,

INDIA

Search

& siege

Witness

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 10 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 and

Special Leave Petition (Crl.) No. 13370/2024 Page 11 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 sheet

Name: 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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, was

Special Leave Petition (Crl.) No. 13370/2024 Page 20 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 21 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 the

Special Leave Petition (Crl.) No. 13370/2024 Page 22 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 the

Special Leave Petition (Crl.) No. 13370/2024 Page 23 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 24 of 31

combat illegal activities. She lastly contended that drug traffickers and

smugglers 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 25 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 26 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 27 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 28 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 29 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 appropriate

Special Leave Petition (Crl.) No. 13370/2024 Page 30 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 31 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