The main legal point established in the judgment is that the Magistrate has the power to grant interim custody of seized property to the rightful owner under Sections 451 and 457 of the Code of Criminal Procedure, as they are not inconsistent with the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Heard Mr. A.S. Choudhury, learned Sr. counsel assisted by Mr. R. Ali. None appears for the State. The previous orders of this Court reveal that this case was earlier adjourned on various dates on the request of the learned P.P. Assam for production of Case Diary (for short 'C.D.'). But no C.D. has been produced. Even today also when the matter is taken up for hearing as fixed item, as ordered by this Court earlier on 13.8.2002, no C.D. has been produced nor has anyone appeared on behalf of the State. During the course of hearing, it appears that the matter is yet to be admitted. Accordingly, Revision is admitted and made returnable forthwith.

2. By this criminal revision, the petitioner has assailed the impugned order dated 17.4.2002 passed by learned Special Judge, Kokrajhar In Special Case No. 5/ 2002 rejecting the prayer for Zimma of 19,500 Kgs. of C.R. Coils (Building Rods) seized on 27.3.2002 by the police at Srirampur Gate.

3. The case of the petitioner, in short, is that on 18.3.2002 the petitioner, the proprietor, who is carrying transport business, of M/s Vindhyachal Transport Company situated at Beltola, Basistha Charali, Guwahati received 19,500 kgs. of C.R. Coil from M/s Steel Authority of India Ltd., Guwahati to be delivered at Kanpur. The petitioner transported the said goods through the truck in question bearing No. UP-30A/4361. During the transit of the said goods by the said vehicle, the Inspector of Excise intercepted the said vehicle at Srirampur Gate in the district of Kokrajhar on suspicion and found 48 numbers of packets of contraband Ganja weighing about 1483.00 Kgs. wrapped in gunny bags. As a result, the vehicle was seized along with the petitioner's C.R. Coil and a case being numbered as Special Case No, 5/2002 was registered u/s 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act'). Against such seizure the petitioner approached the learned Special Judge, Kokrajhar praying for Zimma of the said C.R. Coil. The learned Special Judge by his order dated 17.4.2002 rejected the prayer for Zimma of the petitioner. Hence this revision petition.

4. Assailing the impugned order as well as praying for Zimma of the seized articles, Mr. A.S. Choudhury, learned counsel has vehemently argued that the petitioner is entitled to interim custody of the property seized during the pendency of the trial under the law inasmuch as the provisions of Section 451 and 457 Cr.P.C. permit such custody of seized articles in favour of the rightful owner during the pendency of the trial. Therefore, the view expressed by the learned Judge in rejecting the prayer for Zimma that such seizure of the goods 'is hit by Section 61' of the Act as the same is being liable for confiscation, is erroneous. To buttress his submission, Mr. Choudhury has relied on a catena of decisions of various High Courts and has referred following cases :-

(i)B.S. Rawant Vs. Shaikh Abdul Karim and another reported in 1989 Crl. LJ. 1998 (Bombay High Court).

(ii) Khema Vs. State of Raj as than reported in 2000 Crl.L.J. 2079 (Rajasthan High Court)

(iii)Madan Lal Vs. State NCT of Delhi, reported in 2002 Crl.LJ. 2605 (Delhi High Court).

5. In those above cited cases it was held that though the seized good are liable to be confiscated u/s 61 of the Act, the same can not be a ground to deny its interim custody. It was also ruled in those authorities that the Magistrate has the jurisdiction to pass an order for interim custody u/s 451 and 457 Cr.P.C. as the operation of those provisions are not excluded by the provisions of the Act.

6. In order to appreciate and decide the controversy involved in the case in hand, the reference to the provisions of Section 61 of the Act as well as Sections 451 and 457 of the Code of Criminal Procedure is relevant and accordingly the provisions of law laid down in those sections are extracted hereunder. Section 61 of the Act reads as follows :-

Section 61. Confiscation of Goods used for concealin