The main legal point established is the presumption of the owner's knowledge under section 35 of the NDPS Act, the liability of the seized vehicle to confiscation, and the court's jurisdiction to grant interim custody under the Code of Criminal Procedure.

ASHA ARORA, J.

1. By the instant application petitioner has assailed the order dated 2/1/2018 passed by the learned Judge, Special Court under NDPS Act Howrah in T.R No. 6 of 2017 arising out of Nischinda P.S. case No. 9 of 2017 dated 23/4/2017 under section 21(c)/22(c)/23/29 of the NDPS Act whereby the petitioner's application for return of the seized vehicle (truck) bearing No. UP 32 HN 3425 was rejected.

2. The brief facts leading to the present application are as follows:

On 22/4/2017 S.I Sudipta Panigrahi of Detective Department, Howrah Police Commissionerate lodged a suo moto complaint stating that in course of raid at zero point NH2 Toll Free Road, near Bamundanga Math, P.S. Nischinda, Howrah, he along with force arrested three accused persons from whose possession 19,995 bottles of phensedyl cough linctus in a truck bearing No. UP 32 HN 3425 were seized. Preliminary charge-sheet was submitted against the aforesaid three accused persons namely, Gopal Sadhu, Sankar Debnath and Debu Kundu under section 21(c)/22(c)/23/29 of NDPS Act while the driver of the seized truck could not be traced. During further investigation, on 27/11/2017 Waish Ahmed, the petitioner herein went to the D.D. office and identified himself as the owner of the seized vehicle and produced documents in support of his ownership which were seized from his possession. He also disclosed the name and address of his driver who was driving the vehicle at the relevant time. In course of investigation it transpired that the petitioner is the owner of the transport company named PBH Kolkata Transport Carrier and he intentionally suppressed this fact from the police. Further investigation culminated in the submission of supplementary charge-sheet under section 21(c)/22(c)/23/29 of the NDPS Act against the absconding driver of the seized truck and the owner who is the petitioner herein.

3. On 11/8/2017 the petitioner herein filed an application before the learned Judge Special Court under NDPS Act Howrah for return of the seized truck bearing no. UP32 HN3425 as its registered owner. It is the contention of the petitioner that he had no knowledge about the user of the truck for carrying or transporting contraband articles. The learned Judge rejected the application for return of the seized truck on the ground that the Investigating Officer in his report has not stated anything with regard to the claim of the petitioner that as the owner of the truck he had no knowledge or connivance regarding transportation of the seized 19,995 bottles of phensedyl cough linctus in his truck and that the owner of the vehicle was vicariously liable for the act done by his agent. Further, in view of the provision of section 60(3) of the NDPS Act the vehicle is liable to confiscation. Aggrieved by the impugned order the petitioner has approached this Court.

4. Petitioner has contended in his application that he is running a transport business at Lucknow and is the owner of several trucks. He is the registered owner of the seized truck which was sent to a transport agency for supply of plywood from a company in Lucknow, Uttar Pradesh to a company in Kolkata. The aforesaid truck left Kanpur on 17/4/2017 but did not reach its destination in West Bengal on 19/4/2017. Petitioner came to know that the truck was seized in connection with the above mentioned case under the NDPS Act. According to the petitioner, his vehicle was misused by unknown persons during the transit.

5. Learned counsel for the petitioner submits that as the registered owner of the seized vehicle the petitioner should be given interim custody of the same during the pendency of the trial. Referring to section 60 and 63 of the NDPS Act it is argued that the seized vehicle carrying contraband articles is liable to confiscation on conclusion of the trial in accordance with the procedure prescribed under the Act. It is contended that the petitioner had no knowledge that the vehicle was carrying contraband articles. Supple