An innocent owner is entitled to interim custody of a seized vehicle pending trial under the NDPS Act, as supported by Section 60(3) of the Act.

ORDER

1. The matter is taken up through video conferencing mode.

2. The petitioner seeks by way of this criminal revision to quash the order dated 11.08.2021 passed by the learned Special Judge, Phulbani in Criminal Miscellaneous Case No.11 of 2021, arising out of C.T. Case No.40 of 2019 whereby his petition for interim release of his Maruti Suzuki Swift Dezire Car bearing Registration No.OR-05-AE-4700 has been rejected.

3. The petitioner had filed an application under Section 457 of the Cr.P.C. before the learned Special Judge, Phulbani with a prayer for releasing his vehicle, which was seized in connection with C.T. Case No.40 of 2019 under Section 20(b)(ii)(C) of the NDPS Act. The offending vehicle was alleged to have transporting contraband ganja. One poly bag containing 60 kgs 800 grams of ganja was also recovered from the offending vehicle. The present petitioner along with two accused persons was also booked under Section 20(b)(ii)(C) of the NDPS Act. The learned Special Judge, Phulbani after hearing the parties rejected his prayer for release of the vehicle on 11.08.2021. The petitioner has challenged the said order in the present criminal revision.

4. Learned counsel for the petitioner submits that the vehicle, which has been confiscated, is likely to be damaged in the premises of the police station being exposed to sun and rain for which its condition has been deteriorating. Further, there is no maintenance to the vehicle, which automatically rests deterioration. However, he relies upon the JUDGMENT passed by this Court in the cases of Kishore Kumar Choudhury vs. State of Orissa, 2017 66 OCR 114 and Balabhadra Nayak vs. State of Orissa, 2013 54 OCR 893.

He relies upon paragraph-5 of the judgment passed in Kishore Kumar Choudhury vs. State of Orissa, which reads as follows:-

'5. Chapter-V of the Act provides for procedures relating to power to issue warrant and authorization, power of entry, search, seizure and arrest without warrant or authorization, power of seizure and arrest in public place and so on. Section 52 under Chapter-V of the Act provides for disposal of persons arrested and articles seized.

Section 55 of the Act clearly mandates the police to take charge of articles seized and delivered.Section 51 of Act makes provisions for applicability of the provisions of the Code of Criminal Procedure in the manner provided in the Section which reads thus:- "51 Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures- The provisions of the Code of Criminal Procedure, 1973, shall apply, in so are as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."

A cursory reading of the aforesaid provision in Section 51 of the Act makes it clear that the provisions of the Cr.P.C. will not apply if they are inconsistent with the provision of the Act in respect of warrants issued, arrests, searches and seizures made under the Act. There is provision in Section 55 of the Act interdicting an Officer-in- charge of a Police Station to take charge of and keep in Safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of the Police Station and which may be delivered to him. There is no express provision in the act for release of the property like vehicle or conveyance in interim custody of a rightful owner. Provision contained in Section 51 of the Act does not expressly bar operation of the provision of the Cr.P.C. if they are not inconsistent with the provision of the Act. Taking into consideration the stage of the confiscation proceeding in the scheme of the trial as provided under Section 60(3) of the Act, safe custody of the articles seized and delivered to a police officer under Section 55 of the Act pending order of the Magistrate, absence of any specific provision in the Act for release of valuable articles like vehicle etc. in the interim custody of t