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TMI Blog2025 (1) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, it is his only source of income. 4. On 10th April, 2023, the Vehicle was coming from Dimapur side and was signaled to stop at naka checking point. The Police officer searched the Vehicle and found two identical soap boxes containing suspected heroin which was covered in black polythene, kept concealed inside the Tarpaulin and kept at the hood of the Vehicle. 5. The main accused namely, Md. Dimpul, in this connection, was arrested by the Police Officer. After a field test, the said suspected substance was confirmed to be 24.8 gms. of heroin. ARGUMENTS ON BEHALF OF THE APPELLANT 6. According to the appellant, accused-Md. Dimpul boarded the Vehicle from Manipur as is stated by the driver of the Vehicle namely Joherul Ali. It is averred in the petition that neither the appellant (owner of the truck) nor his driver was aware that the said accused-Md. Dimpul was in possession of the said substance and was carrying the same. Moreover, the driver and helper have been cited as witnesses in the case as according to the appellant they were not involved in the offence. 7. The remand report of the arrested person clearly states that the suspected heroin was recovered and seized from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of release on bail: (xiv) Date on which forwarded to court: (xv) Under Acts & Sections : S.No. Acts Sections (xvi) Details of bailers / sureties: N.C.R.B. L.I.F.-V Name: Father's / Husband's name: Occupation: Address: S.No. Address Type Address Identification: Date of Birth: UID Number: Any Other ID Proof: S.No. Id Type ID Number (xvii) Previous conviction with case references: S. No FIR No. State District Police Station Description of case Details of Conviction / Acquittal (xvii) Status of the accused: FORWARDED TO COURT 12. Particulars of accused person - not charge sheeted (suspect): 13. Particular of witnesses to be examined : S.No Name Father's/ Husband's name Dated/ Year of birth Occupation Address Type of evidence to be tendered 1 Dhurba Das Present Address: DILLAI PS,KARBIAN GLONG, ASSAM, INDIA Permanent Address: DILLAI PS, KARBIANGL ONG, ASSAM. INDIA Arrest Memo witness 2 Krishna Ch Das Present Address: DILLAI PS, KARBIANGL ONG, ASSAM, INDIA Permanent Address: DILLAI PS, KARBIANGL ONG, ASSAM. INDIA Arrest Memo witness 3 Rajib Borah Fathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 AM one Truck B/R No. AS 01 NC 4355 which was coming from Dimapur side was signaled to stop at Naka checking point and the vehicle stopped. After receiving authorization from SDPO Bokajan to search the vehicle, I have served Notice U/S 50 NDPS Act to the driver of the said vehicle whom I have explained about the notice Clearly and on their concerned I along with my staff started search of the vehicle in presence of independent witnesses. On thorough search of the vehicle, total 02 (two) nos, identical soap boxes containing suspected to be Heroin covered with black polythene which was kept concealed inside the Tarpaulin and kept at the hood of the truck. During spot interrogation, the driver of the vehicle Joherul Ali 52 Yrs S/O Lt Ahmed Choudhary, R/O Morth Bongaigaon, PS Bongaigaon stated that the suspected drugs is belongs to one another person of the vehicle namely Md Dimpul Ali S/O Mansur Ali R/O No. 2 Meda, PS Sorbhog, Dist Barpeta, Assam who was came with him from Dimapur and he kept the soap box inside the tarpaulins. Suspected recovered from the vehicle was subjected to field test by using Deflection Kit in presence of SDPO Bokajan and above name eye witnesses and the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by rendering it to natural wear and tear and deterioration. He referred to and relied upon Sections 451 and 457 of the Code of Criminal Procedure ('for short 'Cr.P.C.') to seek release of the Vehicle. The relevant portions of Sections 451 and 457 of Cr.P.C. are reproduced hereinbelow:- "451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.-For the purposes of this section,'property' includes- (a) property of any kind or document which is produced before the court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. * * * 457. Procedure by police upon seizure of property.- (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a complete code in itself. [See: Noor Aga vs. State of Punjab & Another, (2008) 16 SCC 417; Mukesh Singh vs. State (Narcotic Branch of Delhi), (2020) 10 SCC 120 and Directorate of Revenue Intelligence vs. Amit Kumar, 2016 SCC OnLine Del 6083]. According to her, the NDPS Act does not - unlike the Code of Criminal Procedure - contemplate interim release of a seized conveyance during pendency of the trial. 14. She stated that for the adjudication of this case, Chapter IV (Offences and Penalties) and Chapter V (Procedure) of NDPS Act are relevant, as they encompass the provisions directly applicable to the alleged offences and the procedural mechanisms to address them. The relevant provisions of Chapter IV and V of the NDPS Act relied upon by the learned counsel for respondent-State are reproduced hereinbelow:- i. Section 36C of the NDPS Act: "Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court...." ii. Section 51 of the NDPS Act: "The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the animal or conveyance and that each of them had taken all reasonable precautions against such use. v. Second Proviso to Section 63 of the NDPS Act: 63. ........ Provided further that if any such article or thing, other than a narcotic drug, psychotropic substances [controlled substance], the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of the opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale." 15. She further submitted that the question that arises for consideration in the present case, arose for consideration before the High Courts of Delhi, Kerala and Calcutta where the interpretation forwarded by the respondent- State has been affirmed. The judgments relied upon by learned counsel for the respondent-State are reproduced hereinbelow:- A. Smt. Narender Kaur vs. Arun Sheoran, Intelligence Officer, Narcotics Control Bureau, 2000 SCC OnLine Del 502 wherein it has been held as under:- "12. This Act obviously is a special legislation intended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Jurisdiction to pass an order for interim custody either under S. 451 or S. 457(1) of the Criminal P.C. as the case may be. An order under S. 451 or S. 457(1) of the Criminal P.C. Guarantees return of the vehicle at the time of the final hearing of the matter, or as and when called upon by the Court. It secures, subject to certain terms and conditions, the interim custody of the vehicle, pending the trial. In fact, the operation of S. 451 or S. 457(1) of the Criminal P.C. comes into existence only after the vehicle is seized and brought into safe custody, as provided under Section 55 of the Act. If it is so, it cannot be said that Section 451 or Section 457(1) of the Criminal P.C. is in any way inconsistent with the scheme of the Act." 14. According to this reasoning, there would be two yardsticks to be used, one in case the person carrying the contraband is the owner of the vehicle, that vehicle would not be given on interim custody to its owner, and another in case some other person claims ownership of the vehicle, the vehicle could be given to him by way of interim custody. In that case, persons engaged in such illegal trafficking would find it more advantageous not to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; it is in the name of his wife but was purchased by them after selling another Car No. DL-2C B- 3835; some amount was contributed by his wife and some amount was contributed by him. In the circumstances, it is also not certain whether the car exclusively belongs to the petitioner. It is also seen that on search of his house at C-89. Fateh Nagar, New Delhi, inter alia, 4 gms. of Heroin, one vacuum sealer, small weighing scale were recovered. This would show that some activity in drug is also being done at the house where the petitioner lives. This must be in the knowledge of the petitioner. The use of the car in the present case in the circumstances may not be without her knowledge. B. Ganga Hire Purchase Pvt. Ltd. Vs. State of Punjab and Others, (1999) 5 SCC 670 wherein it has been held as under:- "2. Under sub-section (3) of Section 60 of the NDPS Act, any animal or conveyance used in carrying any narcotic drug or psychotropic substance is liable to confiscation, unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal or conveyance and that each of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India vs. Dinesh Kumar Verma, (2005) 9 SCC 330 wherein it has been held as under:- "3. By the impugned order, the High Court has directed for release of the vehicle during trial of the accused for violation of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). In our view, in the facts and circumstances of the present case, the High Court was not justified in releasing the vehicle. 4. Accordingly, the appeal is allowed, the impugned order rendered by the High Court is set aside and the prayer for release of vehicle made on behalf of the respondent is rejected. The respondent is directed to surrender the vehicle within a period of one month from today, failing which it would be open to the police to seize the same and report compliance to this Court within a period of six weeks from today." D. Shajahan vs. Inspector of Excise and Others, 2019 SCC OnLine Ker 3685 wherein it has been held as under:- These matters have come before us by way of a reference as per order of the learned Single Judge dated 9/4/2019. It was noticed that this Court in Hassainar Aseez B. v. State of Kerala (2017 (2) KLT 741) held that a vehicle which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t theft, pilferage or replacement of the seized drugs. 31.3. The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts. 31.4. Disposal of the seized drugs currently lying in the Police Malkhanas and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading "disposal of drugs". 7. In the light of the aforesaid law laid down by the Apex Court, the said procedure has to be followed in every case and there is no two way of looking at it. Apparently, in such instances, going by the statutory provision under the Special Act, the power of the Magistrate to consider a claim u/s 451 of Cr.P.C. stands denuded. Reference is answered accordingly. E. In Re: Moumita Saha, 2023, SCC OnLine Cal 1094 wherein it has been held as under:- "13. It may be that there is no express bar contained in the NDPS Act for grant of interim custody in order to protect the innocent owner of the vehicle. It would not be out of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish the manner in which the offence was committed. This, according to her, includes, but is not limited to, demonstrating the concealment of the contraband, its storage within the vehicle etc. She contended that releasing the said seized vehicle prematurely on zimma would jeopardize the trial, as it may not be available for such purposes as and when required. 17. She stated that the likelihood of the conveyance, if released, being used again for transporting/trafficking contraband substances cannot be ruled out. She contended that vehicles involved in the commission of offences under stringent laws, such as the NDPS Act, serve as essential tools for offenders to execute their illegal activities and releasing such a vehicle prematurely may increase the risk of its reuse. 18. She contended that releasing the seized vehicle on zimma would encourage the misuse of third-party vehicles for the transportation and smuggling of drugs, which would significantly undermine the efforts to combat illegal activities. She lastly contended that drug traffickers and smugglers often adopt the strategy of using vehicles that are not directly linked to their own ownership in order to evade law enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arcotic drug or psychotropic substance in the interim pending disposal of the criminal case. 23. In the absence of any specific bar under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for return of the seized vehicle pending final decision of the criminal case. Consequently, the trial Court has the discretion to release the vehicle in the interim. However, this power would have to be exercised in accordance with law in the facts and circumstances of each case. COURTS WILL LEAN AGAINST ANY CONSTRUCTION THAT WOULD PRODUCE AN ABSURD OR UNJUST RESULT. 24. It is trite law that the more absurd a suggested conclusion of construction is, the more the court will lean against that conclusion. That is ordinarily so whether one is construing a contract or a statute. [See: Hatzl v. XL Insurance Co. Ltd. [2009] EWCA Civ. 223]. 25. The presumption against absurdity is found in the brief observation of Lord Saville agreeing with his colleagues in the case of Noone [R (on the application of Noone) v. Governor of HMP Drake Hall [2010] UKSC 30]. Lord Saville says simply: "I would allow this appeal. For the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is of the view that criminal law has not to be applied in a vacuum but to the facts of each case. Consequently, it is only in the first two scenarios that the vehicle may not be released on superdari till reverse burden of proof is discharged by the accused-owner. However, in the third and fourth scenarios, where no allegation has been made in the charge-sheet against the owner and/or his agent, the vehicle should normally be released in the interim on superdari subject to the owner furnishing a bond that he would produce the vehicle as and when directed by the Court and/or he would pay the value of the vehicle as determined by the Court on the date of the release, if the Court is finally of the opinion that the vehicle needs to be confiscated. 31. This Court clarifies that the aforesaid discussion should not be taken as laying down a rigid formula as it will be open to the trial Courts to take a different view, if the facts of the case so warrant. SUPREME COURT IN SIMILAR FACTS IN SAINABA VS. STATE OF KERALA AND ANOTHER HAS RELEASED THE VEHICLE 32. In the present case, this Court finds that after conclusion of investigation, a chargesheet has been filed in the Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased during the trial, it will be wasted and suffering the vagaries of the weather, its value will only reduce. 35. On the contrary, if the Vehicle in question is released, it would be beneficial to the owner (who would be able to earn his livelihood), to the bank/financier (who would be repaid the loan disbursed by it) and to the society at large (as an additional vehicle would be available for transportation of goods). CONCLUSION 36. Consequently, the present Criminal Appeal is allowed with directions to the trial Court to release the Vehicle in question in the interim on superdari after preparing a video and still photographs of the vehicle and after obtaining all information/documents necessary for identification of the vehicle, which shall be authenticated by the Investigating Officer, owner of the Vehicle and accused by signing the same. Further, the appellant shall not sell or part with the ownership of the Vehicle till conclusion of the trial and shall furnish an undertaking to the trial court that he shall surrender the Vehicle within one week of being so directed and/or pay the value of the Vehicle (determined according to Income Tax law on the date of its release), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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