Appeal
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
Appellant purchased a truck and paying EMI
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”) 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.
Vehicle was searched and the main accused was arrested for concealed heroin inside the vehicle
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.
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, CRR1208-2018 (O&M); Kawal Jeet Kaur vs. State of Karnataka, 2024:KHCK: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.
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.
In the absence of specific bar under the NDPS court can invoke general power under sections 451 and 457 Cr.P.C
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 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!
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
Hon’ble Supreme Court explained four scenarios and in which the owner shall be added as accused
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 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.
In the third and fourth scenario normally interim release may be granted subject to conditions
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.
The aforesaid discussion is not a rigid formula
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, 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 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 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.
Party
Bishwajit Dey .…. Appellant versus The State of Assam ..…Respondent – Criminal Appeal No. 87 Of 2025 (Arising out of Special Leave Petition (Crl.)No.13370 of 2024) – 2025 INSC 32 – January 7, 2025
