The Special Court under the NDPS Act can grant interim custody of seized vehicles, provided the owner proves non-involvement in the offence, despite potential confiscation.

JUDGMENT :

Jitendra Kumar, J.

The present petition under Section 482 Cr.PC has been preferred against the impugned order dated 29.09.2015 passed by learned Sessions Judge-cum-Special NDPS Court, Motihari in NDPS Case No. 32 of 2015 whereby learned Court below has rejected the application of the petitioner for releasing the Motorcycle bearing Registration No. BR-22E-4163 seized in Motihari (Town) P.S. Case No. 445 of 2015, corresponding to G.R. No. 3330 of 2015 registered for the offence punishable under Sections 20 and 22 NDPS Act read with Section 120B of the Indian Penal Code against the petitioner and co-accused Md. Akhtar.

2. As per the prosecution case, 1 kg. Ganja has been recovered from the dickey of motorcycle in question belonging to the petitioner. The case is still at the stage of investigation. The aforesaid application of the petitioner was opposed by the police submitting that the vehicle in question is liable to confiscation under Section 60 of the NDPS Act. Learned Court below accepting the submission of the police, rejected the aforesaid application of the petitioner holding as follows:-

“Considering the aforesaid facts and circumstances of the case and basically considering the provision as mentioned in Section 60(1) of NDPS Act, I am not inclined to allow this petition for release of seized motorcycle.

It is, therefore, ordered that the petition for release of seized motorcycle filed on behalf of the petitioner, Md. Hakim Khan is rejected.”

3. As per the counter affidavit filed by the police, it has been stated that the case is still at the stage of investigation. However, the case against the petitioner is found to be true. But for want of arrest of the petitioner, charge-sheet has not been submitted.

4. I heard learned counsel for the petitioner and learned APP for the State.

5. Learned counsel for the petitioner submits that learned NDPS Special Court has failed to appreciate the law regarding release of the vehicle to interim custody of the owner of the vehicle allegedly involved in NDPS Case. The release of the vehicle during pendency of the investigation, inquiry or trial has nothing to do with the veracity of the case against the petitioner. He also submits that liability of the vehicle to confiscation is also no bar to release of the vehicle to interim custody of rightful owner till conclusion of the investigation, inquiry or trial, because, otherwise, the vehicle would turn into scrap which would be in the interest of none. It would be sheer wastage of the national resources. Conditions could be imposed for such release to ensure that vehicle is produced before the Court whenever it is required during investigation, inquiry or trial. But the rejection of the application for releasing the vehicle to interim custody of the owner/petitioner is no way legally sustainable.

6. Per contra, Ld. APP for the State defends the impugned order submitting that the vehicle which is involved in commission of the alleged offence under the NDPS Act is liable to confiscation under Section 60 of the NDPS Act and hence, cannot be released even to the bona fide owner of the vehicle. He also submits that there is no provision under the NDPS Act to release the vehicle to interim custody. Section 451 or Section 457 of the Cr.PC cannot be applied to proceeding before Special Court established under the NDPS Act.

7. In view of the aforesaid facts and circumstances the following questions of law arise for consideration by this Court:

(i) Whether the provision for confiscation of the vehicle under Sections 60 and 63 of the NDPS Act can be a ground for refusal to release the vehicle to interim custody of the rightful owner during investigation, inquiry, trial or confiscation proceeding?

(ii) Whether Special Court established under NDPS Act has jurisdiction to pass interim order to release vehicle to interim custody of the rightful owner during pendency of the investigation, inquiry, trial or confiscation proceeding and if the Special Court