Supreme Court of India
BISHWAJIT DEYversusTHE STATE OF ASSAM
- Citation
- 2025 INSC 32
- Decided
- 6 January 2025
- Disposal
- Appeal(s) allowed
- Bench
- SANJAY KAROL
Holding
In the absence of any specific bar in the NDPS Act, the Supreme Court held that the court may, under Section 51 of the NDPS Act and the general provisions of Sections 451 and 457 of the CrPC, release a seized vehicle on interim custody, subject to appropriate conditions.
Summary
The appellant, Bishwajit Dey, owned a truck that was stopped at a police checkpoint in Assam where two soap boxes containing 24.8 g of heroin were discovered. The drug was found in the vehicle but the charge‑sheet named only a third‑party occupant, Md Dimpul Ali, as the accused; the owner and driver were not alleged to have knowledge or connivance. The appellant sought interim release of the seized vehicle under Sections 451 and 457 of the CrPC, arguing that the NDPS Act does not expressly bar such release and that he had taken reasonable precautions. The Supreme Court examined whether the NDPS Act imposes a specific prohibition on interim release and considered the four scenarios of drug seizure from conveyances. It held that there is no specific bar and, under Section 51 of the NDPS Act, the court may invoke the general powers of the CrPC to release the vehicle on superdari, subject to conditions, especially where the owner is not an accused. Accordingly, the appeal was allowed and the trial court was directed to release the vehicle on interim custody with safeguards.
Issues considered
- Whether the NDPS Act contains a specific prohibition on the interim release of a seized conveyance during the pendency of trial.
- Whether the court may exercise the general powers under Sections 451 and 457 of the CrPC to release a seized vehicle in NDPS cases.
- What criteria determine when a seized vehicle should be retained versus released, particularly in the four scenarios of drug seizure.
- Whether allowing interim release would produce an absurd or unjust result contrary to the object of the NDPS Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 451, s. 457
- Motor Vehicles Act
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 21(b), s. 36C, s. 51, s. 52A, s. 60(3), s. 63
Subjects
Interim release of conveyancesContrabandSeizure of vehicleCustody of policeInterim on superdariDrug traffickingRelease of vehicleRelease in the interim of seized vehicleOrder of confiscationTransporting narcotic drugSection 51 of NDPS ActSection 451 and section 457 of CrPCPresumption against absurdity
Judgment
[2025] 1 S.C.R. 281 : 2025 INSC 32
Bishwajit Dey
v.
The State of Assam
(Criminal Appeal No. 87 of 2025)
07 January 2025
[Sanjay Karol and Manmohan,* JJ.]
Issue for Consideration
Interim release of conveyances during the pendency of the trial in
NDPS (Narcotic Drugs and Psychotropic Substances Act, 1985)
cases.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 –
Releasing of vehicle in the interim on superdari – A Vehicle
was stopped at a 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 – After a field test, the said suspected substance was
confirmed to be 24.8 gms. of heroin – The vehicle in question
was seized – The appellant herein has sought release of the
vehicle:
Held: In the present case, this Court finds that after conclusion of
investigation, a chargesheet has been filed in the Court of Special
Judge, NDPS – In the said chargesheet, neither the owner of the
Vehicle nor the driver has been arrayed as an accused – Only a
third-party occupant has been arrayed as an accused – The police
after investigation has not found that the appellant i.e. the owner
of the vehicle, has allowed his vehicle to transport contraband
drugs/ substances with his knowledge or connivance or that he or
his agent had not taken all reasonable precautions against such
use – Consequently, the conveyance is entitled to be released
on superdari – If the Vehicle in the present case is allowed to be
kept in the custody of police till the trial is over, it will serve no
purpose – This Court takes judicial notice that vehicles in police
custody are stored in the open – Consequently, if the Vehicle is
*Author
282 [2025] 1 S.C.R.
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not released during the trial, it will be wasted and suffering the
vagaries of the weather, its value will only reduce – Therefore, the
trial Court directed 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. [Paras 32, 34, 36]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.51 – Code of Criminal Procedure, 1973 – ss.451 and 457 –
Seized vehicles – Power of Court to release the vehicle in
interim – Whether there is any specific bar/restriction under
the NDPS Act for release in interim of any seized vehicle:
Held: Upon a reading of the NDPS Act, this Court is of the view
that the seized vehicles can be confiscated by the trial court only on
conclusion of the trial when the accused is convicted or acquitted
or discharged – Further, even where the Court is of the view that
the vehicle is liable for confiscation, it must give an opportunity
of hearing to the person who may claim any right to the seized
vehicle before passing an order of confiscation – However, the
seized vehicle is not liable to confiscation if the owner of the seized
vehicle can prove that the vehicle was used by the accused person
without the owner’s knowledge or connivance and that he had
taken all reasonable precautions against such use of the seized
vehicle by the accused person – 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. [Para 21]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
Seized vehicles – Will Court lean against any construction
that would produce an absurd or unjust result:
Held: It is trite law that the more absurd a suggested conclusion
of construction is, the more the court will lean against that
conclusion – In the instant case, if the respondent-State’s
interpretation is accepted, then in a case where an accused
[2025] 1 S.C.R. 283
Bishwajit Dey v. The State of Assam
is arrested carrying heroin in a private plane or a private bus
or a private ship without the knowledge and consent of the
management, then the said plane/bus/ship would have to be
seized till the trial is over – The risk of misuse by the accused
or third party of the same plane or bus or ship cannot be ruled
out, yet the Courts do not take coercive action on the basis
of fear or suspicion or hypothetical situation – Undoubtedly,
the Vehicle is a critical piece of material evidence that may be
required for inspection to substantiate the prosecution’s case, yet
the said requirement can be met by stipulating conditions while
releasing the Vehicle in interim on superdari like videography
and still photographs to be authenticated by the Investigating
Officer, owner of the Vehicle and accused by signing the said
inventory as well as restriction on sale/transfer of the Vehicle.
[Paras 24, 26, 28]
Narcotic Drugs and Psychotropic Substances Act, 1985 – Four
scenarios in which the drug or substance is seized from a
conveyance:
Held: Firstly, where the owner of the vehicle is the person
from whom the possession of contraband drugs/substance is
recovered – Secondly, where the contraband is recovered from
the possession of the agent of the owner i.e. like driver or cleaner
hired by the owner – Thirdly, where the vehicle has been stolen
by the accused and contraband is recovered from such stolen
vehicle – Fourthly, where the contraband is seized/recovered
from a third-party occupant (with or without consideration)
of the vehicle without any allegation by the police that the
contraband was stored and transported in the vehicle with the
owner’s knowledge and connivance – In the first two scenarios,
the owner of the vehicle and/or his agent would necessarily be
arrayed as an accused – In the third and fourth scenario, the
owner of the vehicle and/or his agent would not be arrayed as
an accused. [Para 29]
Case Law Cited
Sainaba v. State of Kerala and Another 2022 SCC OnLine SC
1784 – relied on.
Sunderbhai Ambala Desai v. State of Gujarat [2002] Supp. 4 SCR
217 : (2002) 10 SCC 283; Noor Aga v. State of Punjab & Another
[2008] 10 SCR 379 : (2008) 16 SCC 417; Mukesh Singh v. State
284 [2025] 1 S.C.R.
Digital Supreme Court Reports
(Narcotic Branch of Delhi) [2020] 9 SCR 245 : (2020) 10 SCC 120;
Ganga Hire Purchase Pvt. Ltd. v. State of Punjab and Others (1999)
5 SCC 670; Union of India v. Dinesh Kumar Verma (2005) 9 SCC
330; General Insurance Council & Ors. v. State of Andhra Pradesh
[2010] 5 SCR 97 : (2010) 6 SCC 768 – referred to.
Directorate of Revenue Intelligence v. Amit Kumar, 2016 SCC OnLine
Del 6083; Smt. Narender Kaur v. Arun Sheoran, Intelligence Officer,
Narcotics Control Bureau, 2000 SCC OnLine Del 502; Shajahan
v. Inspector of Excise and Others, 2019 SCC OnLine Ker 3685;
Re: Moumita Saha, 2023 SCC OnLine Cal 1094; Gurbinder Singh
@ Shinder v. State of Punjab, 2016 SCC OnLine P&H 16026; Tej
Singh v. State of Haryana, 2020 SCC OnLine P&H 4679; Shams
Tavrej v. Union of India, 2023 SCC OnLine All 1154; Manakram
v. State of Madhya Pradesh, Crl. Rev. 2421/2021; Nirmal Singh v.
State of Punjab CRR1208-2018 (O&M); Kawal Jeet Kaur v. State
of Karnataka 2024 : KHCK : 5691; Bhagirath v. State of Rajasthan
2024: RJ-JD : 36868; Bhola Singh @ Ayush Singh v. The State of
Bihar, Criminal Misc. No. 40912/2016 (High Court of Judicature
at Patna); Hatzl v. XL Insurance Co. Ltd. [2009] EWCA Civ. 223;
R (on the application of Noone) v. Governor of HMP Drake Hall
[2010] UKSC 30 – referred to.
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Code of
Criminal Procedure; 1973.
List of Keywords
Interim release of conveyances; Contraband; Seizure of vehicle;
Custody of police; Interim on superdari; Drug trafficking; Release
of vehicle; Release in the interim of seized vehicle; Order of
confiscation; Transporting narcotic drug; Section 51 of Narcotic
Drugs and Psychotropic Substances Act, 1985; Section 451 and
section 457 of CrPC; Presumption against absurdity.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
87 of 2025
From the Judgment and Order dated 23.01.2024 of the Gauhati
High court in CRLRP No. 483 of 2023
[2025] 1 S.C.R. 285
Bishwajit Dey v. The State of Assam
Appearances for Parties
Adeel Ahmed, Raja Chatterjee, Sabrish Ahmed, Ayushi Arora,
Ms. Anupama Gupta, Ms. Riya Dutta, Advs. for the Appellant.
Ms. Diksha Rai, Ms. Aakanksha Kaul, Ms. Apurva Sachdev, Piyush
Vyas, Ms. Purvat Wali, Aman Sahani, Ms. Rhea Borkotoky, Akash
Saxena, Ms. Ashima Chopra, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Manmohan, J
1. Leave granted.
2. The Criminal Appeal has been filed challenging the impugned
judgment and order dated 23rd January, 2024 passed by the Gauhati
High Court at Assam in Case number Crl. Rev. No.P/483/2023,
whereby the appellant’s writ petition challenging the order dated 09th
October, 2023 passed by the Additional Sessons Judge Karbi Anglong,
Diphu, in Dillai Police Station case No.32/2023, corresponding to
G.R. Case No.150/2023 dated 05th October, 2023 was dismissed.
RELEVANT FACTS
3. Briefly stated the relevant facts of the present case are that the appellant
had purchased a Truck for commercial purpose bearing Registration
No.AS-01-NC-4355 (hereinafter referred to as “the Vehicle”) with the
intent of plying the same. The Vehicle was purchased on monthly
Equated Monthly Instalment of Rs.1,00,020/- (One lakh and twenty
rupees) and according to the appellant, 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.
286 [2025] 1 S.C.R.
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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 the possession
of the accused-Md. Dimpul.
8. Thereafter, on 01st August, 2023, a chargesheet was filed before the
Court of Special Judge, NDPS by Sub-Inspector Sarat Kakoti under
Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short ‘NDPS Act’) wherein it was stated that the accused-
Md.Dimpul carried the suspected heroin. Since learned counsel for
the appellant placed heavy reliance on the charge-sheet, the same
is reproduced hereinbelow in its entirety:
“N.C.R.B
L.I.F.-V
FINAL FORM REPORT
(Under section 173 Cr.P.C.)
IN THE COURT OF : In the court of Special Judge
NDPS Diphu Karbi Anglong
1. District : KARBINGLONG P.S. : DILLAI PS
Year : 2023
FIR No. : 0032 Date : 10/04/2023
2. Final report / Change Sheet No.
3. Date : 01/08/2023
4. S.No. Acts Sections
1 NARCOTIC DRUGS AND
PSYCHOTROPIC 21(b)
[2025] 1 S.C.R. 287
Bishwajit Dey v. The State of Assam
5. Type of Final Form Report : CHARGE SHEET
6. If FR Unoccurred
7. If Charge school : Original
8. name of I.O.at the time of charge sheet :
SARAT KAKOTI Rank : SI
No.
9. (a) Name of complainant / Informant :
Rajib Borah
(b) Father’s Name : Dhaniram Borah
10. Detail of Properties/Articles/Documents recovered/
seized during Investigation and relied upon:
S. Property Estimated Police From Disposal
No. Description Value (in Station whom /
Rs.) Property where
Register No. revered
or
seized
1 ELECTRICAL 000184/2023 /NH-
AND 36 in
ELECTRONIC front of
GOODS Lahorijan
PP
2 DRUGS / 000183/2023 /NH-
NARCOTIC 36 in
DRUGS front of
Lahorijan
PP
3 DOCUMENTS 000182/2023 /NH-
AND 36 in
VALUABLE front of
SECURITIES Lahorijan
PP
4 AUTOMOBILES 000181/2023 /NH-
AND OTHERS 36 in
front of
Lahorijan
PP
288 [2025] 1 S.C.R.
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11. Particulars of accused charge-sheet : S.No.
1
(i) Name: Md. Dimpul Ali
Whether verified : Yes
(ii) Father’s Name:
(iii) Data/ Year of birth : 1993
(iv) Sex: male
(v) Nationality : INDIA
(vi) Passport No. :
Date of Issue:
Place of Issue:
(vii) Religion :
(viii) Whether SC/ST/OBC: GENERAL
(ix) Occupation:
(x) Address:
1 Present No.2 Meda, Charaibari, SORBHOG,
Address BARPETA, ASSAM, INDIA
2 Permanent No.2 Meda, Charaibari,
Address SORBHOG,BARPETA, ASSAM, INDIA
Whether verified: Yes
Regular Criminal No. :
(xii) Date of arrest: 10/04/2023
(xiii) 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:
[2025] 1 S.C.R. 289
Bishwajit Dey v. The State of Assam
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. FIR State District Police Description Details of
No No. Station of case Conviction
/ Acquittal
(xviii) Status of the accused: FORWARDED TO COURT
12. Particulars of accused person – not charge sheeted
(suspect):
13. Particular of witnesses to be examined :
S. Name Father’s/ Dated/ Occupation Address Type of
No Husband’s Year of evidence to
name birth be tendered
1 Dhurba Present Address: Arrest Memo
Das DILLAI PS, witness
KARBIANGLONG,
ASSAM, INDIA
Permanent
Address:
DILLAI PS,
KARBIANGLONG,
ASSAM. INDIA
290 [2025] 1 S.C.R.
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2 Krishna Present Address: Arrest Memo
Ch Das DILLAI PS, witness
KARBIANGLONG,
ASSAM, INDIA
Permanent
Address:
DILLAI PS,
KARBIANGLONG,
ASSAM. INDIA
3 Rajib Father: 1992 Present Address: Complainants
Borah Dhaniram DILLAI PS,
Borah KARBIANGLONG,
ASSAM, INDIA
Permanent
Address:
DILLAI PS,
KARBIANGLONG,
ASSAM. INDIA
4 Sarat 02/11/1993 Present Address: IO
Kakoti ASSAM, INDIA
Permanent
Address: ASSAM,
INDIA
5 Shri Present Address: Other
John BOKAJAN, Witness
Das KARBIAN GLONG,
ASSAM, INDIA
Permanent
Address:
BOKAJAN,
KARBIAN GLONG,
ASSAM, INDIA
6 Jiten Father: Present Address: Other
Gogoi Late Mukta DILLAI PS, Witness
Gogoi KARBIANGLONG,
ASSAM, INDIA
Permanent
Address:
DILLAI PS,
KARBIANGLONG,
ASSAM. INDIA
7 Sankar Present Address: Other
Mahana DILLAI PS, Witness
yak KARBIANGLONG,
ASSAM, INDIA
Permanent Address:
DILLAI PS,
KARBIANGLONG,
ASSAM. INDIA
[2025] 1 S.C.R. 291
Bishwajit Dey v. The State of Assam
8 Baidujya Present Address: Other
Khanikar DILLAI PS, Witness
KARBIANGLONG,
ASSAM, INDIA
Permanent
Address:
DILLAI PS,
KARBIANGLONG,
ASSAM. INDIA
9 Mintu Present Address: Other
Daimary DILLAI PS, Witness
KARBIANGLONG,
ASSAM, INDIA
Permanent
Address:
DILLAI PS,
KARBIANGLONG,
ASSAM INDIA
10 Monjur Father: 1989 Present Address: Search
Ahmed Abdul Kluqu Dhainsing Engleng, & siege
DILLAI PS, Witness
KARBIANGLONG,
ASSAM, INDIA,
Permanent
Address: Kania
Tokbi, DILLAI PS,
KARBINGLONG,
ASSAM, INDIA
11 Ramesh Father: 1985 Present Address: Search
Raj Jagat Bh. Kania Tokbi, DILLAI & siege
Rai PS,KARBINGLONG, Witness
ASSAM, INDIA
Permanent Address:
Kania Tokbi,DILLAI
PS, ASSAM,
INDIA Permanent
Address: Kania
Tokbi, DILLAI PS,
KARBINGLONG,
ASSAM, INDIA
14. If FR is false (F.R. false), indicate action taken or
proposed to be taken u/s 182/211 I.P.C /217/248
B.N.S:
15. Result of Laboratory analysis :
16. Brief facts of the case :
292 [2025] 1 S.C.R.
Digital Supreme Court Reports
The brief of the case is that on 10/04/2023 informant SI
(UB) Rajib Borah of Dillai PS lodged an FIR at PS stating
that based on a specific information received from reliable
source, a Naka checking was conducted by self along with
ASI Jiten Gogoi, Ic Lahorijan and staff on NH 36 in front of
Lahorijan PP. During checking at about 06:20 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
result comes positive for Heroin. The recovered 02 (two)
packets of Identical soap boxes has been weighed by using
digital weight machine belonging to PP (which was quoted
in Lahorijan pp gde No. 537 Dated 31/12/2023) and found
total 24.8 grams after weight. Accordingly the recovered
soap boxes containing suspected to be Heroin along
with other items were seized the recovered psychotropic
substance. Sealed and packet the psychotropic substance
at PO in presence of independent witnesses. Open the
sealed packed before Hon’ble Judicial Magistrate 1st class,
Bokajan and drawn the sample and samples have sent
to Forensic science Kahilipara Guwahati for examination.
The suspected accused person have been arrested and
[2025] 1 S.C.R. 293
Bishwajit Dey v. The State of Assam
forwarded to the Judicial custody. Expert opinion report
was collected and the report is positive for Heroin. The
recovered psychotropic substances have identified as
Heroin, which are highly addictive drugs that affect Central
Nervous System. It is an illegal drug with high market value
and its uses have immense medical, social and economic
consequences. Its uses have been increasing in today’s
society and mostly amongst the young generation which
has devastating impact on human resource as well as
social health. The drug trafficking involves a huge national
international gang which is also seen to be prevalent in
Assam. The arrested accused person revealed that he
carried the Heroin form Dimapur. This statement proves
the interstate transition of psychotropic substances.
Above facts and circumstance, a prima facie is found well
established U/S 21 (b) of NDPS Act against the arrested
accused person. I have sent the arrested accused person
named Md. Dimpul Ali S/O Mansur Ali, R/O No.2 Meda,
PS Sorbhog . Dist, Barpeta Honble court for trial against
him under aforementioned section of Law.
17. Refer Notice served : No Date:
18. Dispatched on:
19. No. of enclosures 4
20. List of enclosures: As annexed:
IIF1.pdf, IIF2.pdf, IIF3-1.pdf, IIF4-1 pdf
Forwarded by Officer in charge
Name: Nitul Saikia
Rank: SI (Sub-Inspector)
No.:
Signature of Investigation Officer submitting final
report/charge sheet
Name: SARAT KAKOTI
Rank: SI (Sub-Inspector)
No.:”
294 [2025] 1 S.C.R.
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9. Learned counsel for the appellant stated that the Vehicle since
seized has been lying unattended at the Police station campus and
the same is lying exposed to sun and rain thereby 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) Whenever the seizure of property by any police officer
is reported to a Magistrate under the provisions of this
Code, and such property is not produced before a criminal
court during an inquiry or trial, the Magistrate may make
such order as he thinks fit respecting the disposal of such
property or the delivery of such property to the person
entitled to the possession thereof, or if such person cannot
be ascertained, respecting the custody and production of
such property.
(2) If the person so entitled is known, the Magistrate
may order the property to be delivered to him on such
[2025] 1 S.C.R. 295
Bishwajit Dey v. The State of Assam
conditions (if any) as the Magistrate thinks fit and if such
person is unknown, the Magistrate may detain it and shall,
in such case, issue a proclamation specifying the articles
of which such property consists, and requiring any person
who may have a claim thereto, to appear before him and
establish his claim within six months from the date of such
proclamation.”
10. He submitted that this Court in the case of Sunderbhai Ambala
Desai V. State of Gujarat (2002) 10 SCC 283 has held, “In our
view, whatever be the situation, it is of no use to keep such seized
vehicles at the police stations for a long period. It is for the magistrate
to pass appropriate orders immediately by taking appropriate bond
and guarantee as well as security for return of the said vehicles, if
required at any point of time. This can be done pending hearing of
applications for return of such vehicles.”
11. He pointed out that the High Court of Judicature at Patna in Bhola
Singh @ Ayush Singh vs. The State of Bihar, Criminal Misc.
No. 40912/2016, has held that “…… As far as vehicle is concerned,
there was no reason to reject the application of the petitioner for
its release to interim custody of the applicant claiming to be bona
fide owner of the vehicle subject to the certain conditions to ensure
production of the vehicle to the court as and when required during
pendency of the trail or confiscation proceeding………”
12. In view of the above judgments, he prayed that the Vehicle be released
to the appellant, being its rightful owner, subject to conditions as may
be imposed by the trial Court.
ARGUMENTS ON BEHALF OF THE RESPONDENT-STATE OF
ASSAM
13. Per contra, learned counsel for the respondent-State of Assam
submitted that the NDPS Act, which deals with drug trafficking, is a
special enactment 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.
296 [2025] 1 S.C.R.
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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
as they are not inconsistent with the provisions of this Act, to
all warrants issued and arrests, searches and seizures made
under this Act.”
iii. Section 52A(1): “The Central Government may, having regard
to the hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other relevant
consideration, in respect of any narcotic drugs, psychotropic
substances, controlled substances or conveyances, by
notification in the Official Gazette, specify such narcotic drugs,
psychotropic substances, controlled substances or conveyance
or class of narcotic drugs, class of psychotropic substances,
class of controlled substances or conveyances, which shall,
as soon as may be after their seizure, be disposed of by such
officer and in such manner as that Government may, from time
to time, determine….”
iv. Section 60 of the NDPS Act:
“60. Liability of illicit drugs, substances, plants,
articles and conveyances to confiscation.—[(1)
Whenever any offence punishable under this Act
has been committed, the narcotic drug, psychotropic
substance, controlled substance, opium poppy, coca
plant, cannabis plant, materials, apparatus and
utensils in respect of which or by means of which
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Bishwajit Dey v. The State of Assam
such offence has been committed, shall be liable
to confiscation.]
(2) Any narcotic drug or psychotropic substance [or
controlled substances] lawfully produced, imported
inter-State, exported inter-State, imported into
India, transported, manufactured, possessed, used,
purchased or sold along with, or in addition to, any
narcotic drug or psychotropic substance [or controlled
substances] which is liable to confiscation under
sub-section (1) and there receptacles, packages and
coverings in which any narcotic drug or psychotropic
substance [or controlled substances], materials,
apparatus or utensils liable to confiscation under
sub-section (1) is found, and the other contents, if
any, of such receptacles or packages shall likewise
be liable to confiscation.
(3) Any animal or conveyance used in carrying
any narcotic drug or psychotropic substance [or
controlled substances], or any article liable to
confiscation under sub-section (1) or sub-section
(2) shall be liable to confiscation, unless the owner
of the animal or 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 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
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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 to deal with a great global malady of drug
abuse caused due to drug trafficking. To that extent,
it is a complete code. Any other provision of law if it
impinges on the objects sought to be achieved by this
Act will be contrary to this enactment and necessarily
over-ridden by the Act, expressly or by implication.
Conveyance used for carrying the contraband is
liable to confiscation, of course, after making due
inquiry. Second proviso to Sub-section (2) of Section
63 of the Act itself provides for interim orders for the
disposal of any article or thing other than a narcotic
drug etc. which 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, to direct it to be sold.
This specifically provides for interim orders regarding
disposal of seized articles or goods other than the
contraband, and obviously includes a conveyance
used in transportation. This by necessary implication
excludes any other interim order to be made.
13. The provisions of Section 451 which provides for
order for interim custody and disposal of the property
pending trial is identical, in case the property is subject
to speedy and natural decay and if it is otherwise in
the interest of the owner. To this extent, the provisions
of Section 451 of the Code are not applicable. The
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Bishwajit Dey v. The State of Assam
Bombay High Court in B.S. Rawant case (supra),
in this behalf, in para 10, has observed as under:—
“10. The object of the Act is to see that the
vehicle which is used for such an offence is
not made available to the persons who have
indulged in these activities. They shall not have
the benefit of such a vehicle. By and large if
an accused person is himself the owner of
the vehicle and he uses such a vehicle for the
purpose of conveying the drugs, then of course,
it is possible for the prosecution to contend that
it is against the interest of Justice that such a
vehicle be given to the accused pending the
trial. But in a given case, it might be that a
vehicle belonging to innocent owner is stolen
by the accused, and in that event, seized by the
officer, it does not mean that such an owner has
to wait till the trial is completed for the purpose
of getting an order of return of the vehicle from
the Magistrate. In such cases, subject to a
guarantee that the vehicle becomes available
for the purpose of confiscation, if any, the Court
has necessarily 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.”
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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 use their own vehicle but
use vehicle of someone else and in the latter case
merely by the flat of mere saying of owner of such
vehicle that the vehicle was used without his or his
agent’s knowledge or connivance or of the person-
in-charge of the conveyance, he would be able to
secure the interim custody of the vehicle. And such
vehicle could again be similarly used. This is likely to
defeat the very purpose of the Act which provides for
confiscation of such vehicle. Such an Interpretation,
in my respectful view, would be against the object
and purpose of the Act.
15. Assuming the petitioner is the owner of the vehicle
but the question whether the vehicle was used without
her knowledge or connivance is a question of fact to
be determined after evidence, if any, is produced in
proper inquiry. It may not be safe always to accept
such a plea as a gospel truth to give interim custody
of the vehicle to such a person. Question remains that
the vehicle in question was used as a conveyance
by the accused who is the husband of the petitioner
for carrying the contraband. There seems to be no
sound reason that if the owner is not entitled to interim
custody of such vehicle because the vehicle is liable
to be confiscated, why another person who may be
the owner of the vehicle should be given the custody
of the vehicle during the pendency of the case till he
proves his non-complicity. As also observed by the
Bombay High Court, the purpose of the Act is to see
that the vehicle which is used for such conveyance is
not made available to the persons indulging in these
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Bishwajit Dey v. The State of Assam
activities. Confiscation of the vehicle is an additional
safeguard to discourage this crime.
16. As already noticed, the vehicle has been kept
secured in a garage and it is not lying in open and
as such there is no danger of it being damaged by
vagaries of weather. If the vehicle is returned to the
petitioner and ultimately it is held that it is liable to
be confiscated, its use by the petitioner will benefit
the petitioner and defeat the purpose and object of
the Act and when ultimately it is to be confiscated it
would have lost its value. Moreover, accused Amar Pal
Singh is the husband of the petitioner Smt. Narender
Kaur. In his statement made before the investigating
officer on 25-3-1997 under Section 67 of the Act,
he has stated that this car was purchased in the
year 1997 and was a second-hand one; 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
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that each of them had taken all reasonable precaution
against such use. There is no dispute that the
vehicle in question was found to be carrying certain
narcotics. The bone of contention of the appellant
is that in view of the hire-purchase agreement, the
appellant continues legally to be “the owner” of the
vehicle so long as the entire hire-purchase money
has not been paid and therefore unless and until it
is established that the vehicle was used for carrying
of narcotics with the knowledge of the appellant, an
order of confiscation could not have been passed.
In support of this contention, reliance has been
placed on a decision of a learned Single Judge of the
Rajasthan High Court in the case of Punjab Kashmir
Finance (P) Ltd. v. State [1993 Cri LJ 498 (Raj)]. The
expression “owner” has not been defined in the NDPS
Act. There is also no dispute that under the hire-
purchase agreement the title to the vehicle is retained
with the appellant until and unless the entire hire-
purchase money is paid back. But, if the contention
of the appellant is accepted, then all the vehicles
which have been purchased on hire purchase basis,
cannot be confiscated notwithstanding the fact that
the vehicles were found to be used for commission
of offences under the NDPS Act in carrying narcotic
and psychotropic substances. The very purpose for
engrafting sub-section (3) of Section 60 of the NDPS
Act is to have it as a deterrent measure to check the
offences under the Act in question which have been
found to be dangerous to the entire society. In the
absence of any definition of “owner” in the NDPS
Act, it would be reasonable for us to construe that
the expression “owner” must be held to mean the
“registered owner” of the vehicle in whose name the
vehicle stands registered under the provisions of the
Motor Vehicles Act.
3. In view of the aforesaid interpretation of the
expression “owner” in sub-section (3) of Section 60
of the NDPS Act, the appellant cannot be permitted to
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Bishwajit Dey v. The State of Assam
urge that the order for confiscation is bad as he had
no knowledge of the fact that the vehicle was used
for carrying any narcotic substances. The High Court,
therefore, in our opinion, was justified in rejecting the
contention of the appellant that the truck in question
having been taken on a hire-purchase agreement,
for the purpose of sub-section (3) of Section 60, the
appellant shall be treated to be the owner.”
C. Union 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 seized under
the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as NDPS Act) could be
released subject to certain conditions if an application
is filed u/s 451 of the Criminal Procedure Code. It
was observed that S.52A of the NDPS Act read with
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the judgment of the Apex Court in Union of India
v. Mohanlal [(2016) 3 SCC 379] indicates that the
Magistrate does not have jurisdiction to pass orders
u/s 451 Cr.P.C. In the light of the aforesaid controversy,
the matter has been referred to this Court.
xxx xxx xxx
6. When a Special Act prescribes the procedure for
dealing in specified goods and the NDPS Act being
a special statute and latter in time, the provisions
of the special statute has to be followed by the
Magistrate. In other words, the Magistrate may not
have jurisdiction to entertain a petition u/s 451 of
Cr.P.C. in the light of the special provision made u/s
52A of the NDPS Act. In fact, in Mohanlal (supra),
the Apex Court had issued certain directions which
are extracted hereunder:-
“31. To sum up we direct as under:
31.1. No sooner the seizure of any narcotic drugs
and psychotropic and controlled substances
and conveyances is effected, the same shall be
forwarded to the officer in charge of the nearest
police station or to the officer empowered under
Section 53 of the Act. The officer concerned shall
then approach the Magistrate with an application
under Section 52-A(2) of the Act, which shall be
allowed by the Magistrate as soon as may be
required under sub-section (3) of Section 52-A,
as discussed by us in the body of this judgment
under the heading “seizure and sampling”. The
sampling shall be done under the supervision
of the Magistrate as discussed in Paras 15 to
19 of this order.
31.2. The Central Government and its agencies
and so also the State Governments shall within
six months from today take appropriate steps to
set up storage facilities for the exclusive storage
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Bishwajit Dey v. The State of Assam
of seized narcotic drugs and psychotropic and
controlled substances and conveyances duly
equipped with vaults and double-locking system
to prevent theft, pilferage or replacement of the
seized drugs. The Central Government and
the State Governments shall also designate
an officer each for their respective storage
facility and provide for other steps, measures
as stipulated in Standing Order No. 1 of 1989
to ensure proper security against 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 context to state that Section 37 of the
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NDPS Act provides that the bail can only be granted
where there are reasonable grounds for believing
that accused is not guilty of such offence and that he
is not likely to commit any offence while on bail. The
spirit of section 37 and the other provisions of the
said Act make it clear that strict applications thereof
are required to achieve the purpose, so that further
offence relating to illicit traffic in narcotic drugs
and psychotropic substances could be prevented.
Before passing an order of releasing the vehicle
involved in such offence, the court has to satisfy
the reasons which justify such release. The NDPS
Act is a special Act, which has been enacted with
a view to make stringent provisions for the control
and regulation of operations relating to narcotic
drugs and psychotropic substances. In the present
case petitioner/owner of the vehicle herself is an
accused and she is still absconding and did not
make co-operation with the investigating agency,
in spite of repeated reminders. Accordingly it would
not be unreasonable to hold that the vehicle in
question used for committing the offence, if released
on terms, then there would be every chance of
committing such offence with the help of the same
vehicle. Petitioner’s innocence could have been
understandable, if she made co-operation with the
investigating agency.
14. Under the said provision if the owner of the
vehicle is not an accused, in that case a separate
and independent proceeding has to be drawn for
confiscation in terms of the express provisions in
Section 60(3) of the Act, to protect an innocent owner
before confiscating his vehicle.
15. Accordingly, I am of the view that this is not an
appropriate case where such prayer can be allowed
and accordingly, the court below has not committed
any error in rejecting the said prayer made by the
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Bishwajit Dey v. The State of Assam
petitioner and as such, the order impugned does not
call for any interference.”
16. She further stated that in the present case, the seized vehicle is a
material evidence that directly links the accused to the commission
of the offence, particularly since it was used as a means to transport
and conceal the contraband substance. She stated that during the
course of the trial, the seized vehicle will be required for inspection,
demonstration or verification to substantiate the prosecution’s case
and to establish 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 enforcement scrutiny and to reduce the risk of detection and
confiscation. Accordingly, she prayed that the seized vehicle be not
released.
COURT’S REASONING
NO SPECIFIC BAR/ RESTRICTION UNDER THE NDPS ACT FOR
RELEASE IN THE INTERIM OF ANY SEIZED VEHICLE.
19. Having heard learned counsel for the parties and having examined
the issue at hand, this Court finds that different Courts have taken
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divergent views with regard to interim release of conveyances during
the pendency of the trial in NDPS cases. While the courts in cases
referred to by learned counsel for the Respondent-State of Assam
have not released the vehicles in the interim during NDPS trial,
yet in General Insurance Council & Ors. vs. State of Andhra
Pradesh (2010) 6 SCC 768; Gurbinder Singh @ Shinder vs. State
of Punjab, 2016 SCC OnLine P&H 16026; Tej Singh vs. State of
Haryana, 2020 SCC OnLine P&H 4679; Shams Tavrej vs. Union of
India, 2023 SCC OnLine All 1154; Manakram vs. State of Madhya
Pradesh, Crl. Rev. 2421/2021; Nirmal Singh vs. State of Punjab,
CRR-1208-2018 (O&M); Kawal Jeet Kaur vs. State of Karnataka,
2024:KHC-K:5691 and Bhagirath vs. State of Rajasthan, 2024:
RJ-JD:36868, the Courts have directed release of the vehicles in
the interim in NDPS cases.
20. The judgements of this Court are confined to their facts or in the
context of the expression ‘owner’ and do not lay down any general
proposition of law. Consequently, the issue would have to be examined
on first principles.
21. Upon a reading of the NDPS Act, this Court is of the view that
the seized vehicles can be confiscated by the trial court only on
conclusion of the trial when the accused is convicted or acquitted
or discharged. Further, even where the Court is of the view that
the vehicle is liable for confiscation, it must give an opportunity of
hearing to the person who may claim any right to the seized vehicle
before passing an order of confiscation. However, the seized vehicle
is not liable to confiscation if the owner of the seized vehicle can
prove that the vehicle was used by the accused person without
the owner’s knowledge or connivance and that he had taken all
reasonable precautions against such use of the seized vehicle by
the accused person.
22. This Court is further of the opinion that there is no specific bar/
restriction under the provisions of the NDPS Act for return of any
seized vehicle used for transporting narcotic 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
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Bishwajit Dey v. The State of Assam
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 reasons given by Lord
Phillips and Lord Mance, I have no doubt that by one route
or another the legislation must be construed so as to avoid
what would otherwise produce irrational and indefensible
results that Parliament could not have intended”
26. If the respondent-State’s interpretation is accepted, then in a case
where an accused is arrested carrying heroin in a private plane or
a private bus or a private ship without the knowledge and consent
of the management and staff of the private plan or bus or ship, the
plane/bus/ship would have to be seized till the trial is over!
27. Though the risk of misuse by the accused or third party of the same
plane or bus or ship cannot be ruled out, yet the Courts do not take
coercive action on the basis of fear or suspicion or hypothetical situation.
28. Undoubtedly, the Vehicle is a critical piece of material evidence that
may be required for inspection to substantiate the prosecution’s case,
yet the said requirement can be met by stipulating conditions while
releasing the Vehicle in interim on superdari like videography and
still photographs to be authenticated by the Investigating Officer,
owner of the Vehicle and accused by signing the said inventory as
well as restriction on sale/transfer of the Vehicle.
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BROADLY SPEAKING THERE ARE FOUR SCENARIOS
29. Though seizure of drugs/substances from conveyances can take
place in a number of situations, yet broadly speaking there are four
scenarios in which the drug or substance is seized from a conveyance.
Firstly, where the owner of the vehicle is the person from whom the
possession of contraband drugs/substance is recovered. Secondly,
where the contraband is recovered from the possession of the agent
of the owner i.e. like driver or cleaner hired by the owner. Thirdly,
where the vehicle has been stolen by the accused and contraband is
recovered from such stolen vehicle. Fourthly, where the contraband
is seized / recovered from a third-party occupant (with or without
consideration) of the vehicle without any allegation by the police that
the contraband was stored and transported in the vehicle with the
owner’s knowledge and connivance. In the first two scenarios, the
owner of the vehicle and/or his agent would necessarily be arrayed
as an accused. In the third and fourth scenario, the owner of the
vehicle and/or his agent would not be arrayed as an accused.
30. This 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 Special
Judge, NDPS Karbi Anglong. In the said chargesheet, neither the
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Bishwajit Dey v. The State of Assam
owner of the Vehicle nor the driver has been arrayed as an accused.
Only a third-party occupant has been arrayed as an accused. The
police after investigation has not found that the appellant i.e. the
owner of the vehicle, has allowed his vehicle to transport contraband
drugs/ substances with his knowledge or connivance or that he or
his agent had not taken all reasonable precautions against such use.
Consequently, the conveyance is entitled to be released on superdari.
33. In fact, the Supreme Court in similar facts in Sainaba vs. State
of Kerala and Another, 2022 SCC OnLine SC 1784 has held as
under:-
“6. The appellant has urged inter alia that as per Section
36-C read with Section 51 of the NDPS Act, Criminal
Procedure Code would be applicable for proceedings by
a Special Court under NDPS Act and Section 451 has
an inbuilt provision to impose any specific condition on
the appellant while releasing the vehicle. The appellant is
undoubtedly the registered owner of the vehicle but had not
participated in the offence as alleged by the prosecution
nor had knowledge of the alleged transaction.
7. Learned counsel seeks to rely on the judgment of this
Court in Sunderbhai Ambalal Desai v. State of Gujarat
(2002) 10 SCC 283 opining that it is no use to keep such
seized vehicles at police station for a long period and
it is open to the Magistrate to pass appropriate orders
immediately by taking a bond and a guarantee as well
as security for return of the said vehicle, if required at
any point of time.
8. On hearing learned counsel for parties and in the
conspectus of the facts and circumstances of the case,
and the legal provisions referred aforesaid, we are of the
view that this is an appropriate case for release of the
vehicle on terms and conditions to be determined by the
Special Court.
9. The appeal is accordingly allowed leaving parties to
bear their own costs.”
312 [2025] 1 S.C.R.
Digital Supreme Court Reports
IF THE VEHICLE IN THE PRESENT CASE IS KEPT IN THE
CUSTODY OF POLICE TILL THE TRIAL IS OVER, IT WILL SERVE
NO PURPOSE
34. This Court is also of the view that if the Vehicle in the present case
is allowed to be kept in the custody of police till the trial is over, it
will serve no purpose. This Court takes judicial notice that vehicles
in police custody are stored in the open. Consequently, if the Vehicle
is not released 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), if so ultimately directed by the Court.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Ankit Gyan
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