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2024 Supreme(Online)(GAU) 7490
HIGH COURT OF GAUHATI
Malasri Nandi, J
NUHU DAIMARI – Appellant
Versus
THE STATE OF ASSAM – Respondent
Crl.Rev.P. / 242 / 2024
RAJU DEURI, MR. S K DEORI
The court ruled that interim custody of a seized vehicle can be granted despite ongoing confiscation proceedings, provided conditions are met to ensure the vehicle's availability for trial.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20(b)(ii)(c), 27A, 29 - Code of Criminal Procedure, 1973 - Sections 451, 457(1) - Quashing of order rejecting interim custody of seized vehicle - Court held that interim custody can be granted despite ongoing confiscation proceedings under certain conditions - Vehicle was seized in connection with alleged drug offence, and owner claimed unjustified denial of custody. (Paras 2, 7, 12)
(B) Interim Custody - The court emphasized that the discretion to grant interim custody should be exercised judiciously and not arbitrarily, and that vehicles should not remain in police custody indefinitely. (Paras 8, 9, 10)
(C) Conditions for Custody - The court outlined conditions for granting interim custody including bank guarantee and restrictions on use of the vehicle. (Paras 12)
Facts of the case:
The petitioner, a registered owner, sought the return of a vehicle seized in a drug-related case, claiming financial loss due to its prolonged custody.
Findings of Court:
The court ruled that the vehicle could be returned to the owner under specific conditions to ensure its availability for trial and to prevent misuse.
Issues: The main issue was whether the seized vehicle could be released pending confiscation proceedings.
Ratio Decidendi: The court clarified that the provisions of the NDPS Act do not exclude the operation of the CrPC regarding interim custody of seized vehicles.
Result: The impugned order was set aside, allowing interim custody of the vehicle.
ORDER
Date : 17.09.2024 Heard Mr. R. Deuri, learned counsel for the petitioner. Also heard Mr. B. Sharma, Additional Public Prosecutor for the State.
2. By filing this petition u/s 397/401/482 Cr.P.C . praying for setting and quashing the impugned order dated 31/05/2024, passed by the learned Special Judge, NDPS, Bishwanath, in Special NDPS Case No. 01/2023, u/s 20(b)(ii) (c)/27A/29 NDPS Act, 1985, whereby the custody of the vehicle bearing No. AS-12-X-0498 was rejected.
3. The learned counsel for the petitioner has submitted that the petitioner is the registered owner of the vehicle bearing No. AS12-X-0498, which was seized in connection with Gingia P.S. case no. 84/2022 u/s 20 (b)(ii)(c)/27 A/29 NDPS Act. Though it has been alleged that commercial quantity of ganja weighing 75 kgs were recovered from the vehicle of the petitioner but which is totally false.
4. It is further submitted that the petitioner purchased the said vehicle being financed by Mahindra & Mahindra Company and he is regularly paying the monthly installment. The vehicle has been lying in the open sky in the campus of Gingia Police Station and damaged day by day. Thus, the petitioner has been suffering great financial loss.
5. According to the learned counsel for the petitioner, the I/O has completed the investigation of the case and the charge sheet has been laid before the trial court. It is further stated that two nos. of vehicles were seized in connection with Gingia P.S. Case No. 84/2022. The zimma of one vehicle bearing No. AS-07-U-5226 was given in zimma to the registered owner by the trial court. But the zimma petition filed by the petitioner praying to take zimma of his vehicle bearing No. AS-12-X-0498, was not considered on the ground that the said vehicle was in process of confiscation. According to the learned counsel for the petitioner, the order passed by the learned trial court dated 31/05/2024 is unjustified and prays to give zimma of the said vehicle to the present petitioner.
In support of his submission, learned counsel for the petitioner has referred the following case laws –
a. Criminal Petition No. 384/2020 ( Angomjambam Nabakumar Singh vs. Union of India ).
b. Criminal Miscellaneous No. 40912/2016 ( Bhola Singh @ Ayush Singh vs. State of Bihar ).
c. Criminal Revision Petition 89/2024 (Sumez Ali vs. State of Assam).
6. Per contra, learned Additional Public Prosecutor has submitted that the vehicle in question bearing No. AS-12-X-0498, has already been confiscated in connection with Gingia PS case No. 84/2022. Therefore, the pending confiscation proceeding, the seized vehicle cannot be released in the interim custody of the owner. The jurisdiction u/s 451 of the Code of Criminal Procedure is not available to the courts when the confiscation proceeding is initiated.
In support of his submission, learned Additional P.P. has referred a case law –
a. (2022) SCC Online (Gau) 1002 ( Offijiol Haque vs. State of Assam )
7. Having heard the learned counsel for the parties, the limited question arose in this case is that pending confiscation proceeding, whether the seized vehicle can be released in the interim custody of the owner.
8. In B.S. Rawant vs. Shaikh Abdul Karim , reported in (1989) 0 Supreme (Bom) 32, the Bombay High Court passed order relating to interim custody of property seized in NDPS Act and observed that operation of sections 451 and/or 457(1) of the Code is not excluded by any provision of the NDPS Act. The Bombay High Court held that, the provisions of section 41/42/43/51/53/55/60/63 of the NDPS Act do not exclude the operation of section 451 or section 457(1) of the Code. The High Court observed that, "Under sections 60 and 63 such an article or vehicle used for the purpose of commission of an offence under this Act, is liable for confiscation. In other words, the article or the vehicle must be available at the time of trial or at the end of the trial for the purpose of confiscation. It does not mean that the vehicle shall always remain at
