Page No.# 1/5 vs The State Of Assam
2025 Latest Caselaw 2585 Gua

Gauhati High Court

Page No.# 1/5 vs The State Of Assam on 8 August, 2025

                                                                          Page No.# 1/5

GAHC010153402025




                                                                    2025:GAU-AS:10439

                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : Crl.Pet./871/2025

             SUNIL KUMAR MAHTO
             S/O- RAM BACHAN MAHATO.
             R/O-HOUSE NO.55, BYE LANE-3, TARUN NAGAR, ABC, NEAR RAJIB
             BHAWAN, GUWAHATI-781005, P.S.- BHANGAGARH, DIST.-
             KAMRUP(METRO), ASSAM.



             VERSUS

             THE STATE OF ASSAM
             REPRESENTED BY THE PP, ASSAM



Advocates for the Petitioner:      Mr. N.J. Dutta, Advocate.


Advocates for the respondent: Mr. D.P. Goswami, Addl. P.P.

                             Date of hearing         : 06.08.2025
                            Date of Judgment: 08.08.2025
                                BEFORE
              HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA
                                      JUDGMENT & ORDER (CAV)

Heard Mr. N.J. Dutta, learned counsel for the petitioner. Also heard Mr. D.P. Goswami, learned Addl. P.P. appearing for the State respondents.

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2. The instant revision petition has been directed against the order dated 09.06.2025 passed by the Sessions Judge, Karbi Anglong at Diphu, in NDPS Case No. 34/2025, rejecting the prayer for zimma of the truck owned by the petitioner.

3. A vehicle bearing Registration no. AS-28-AC-1322 [Tata six-wheeler 1512 LPT Truck] ['the subject-vehicle'] was seized on 05.11.2024 in connection with Dilai Police Station Case no. 49/2024 registered under Sections 21[c]/25/29 of the NDPS Act, 1985. The petitioner has claimed that he is the owner of the subject-vehicle. After completion of investigation, a Charge-Sheet has already been filed in connection with Dilai Police Station Case no. 49/2024 [corresponding GR Case no. 268 of 2024] and the trial of the resultant case, NDPS case no. 34/2025 is presently pending before the Court of Special Judge, Karbi Anglong, Diphu ['the Special Court']. As a petition filed by the petitioner seeking custody of the subject-vehicle has been rejected by the learned Special Court by an Order dated 09.06.2025, the petitioner is before this Court by the instant criminal petition assailing the said Order.

4. Mr. N.J. Dutta, learned counsel for the petitioner submitted that the petitioner is the owner of the truck, which has been driven by the driver accompanied by the handymen, who have been arrested at the time of apprehension of the truck. Subsequently, the I/O has submitted the charge- sheet and a copy of which has been submitted before the Court today.

5. The learned counsel for the petitioner has submitted that a copy of the order dated 14.07.2025 passed by the learned District and Sessions Judge, Nagaon, wherefrom, it appears that charges under Section 21(C)/29 NDPS Act has been framed against the two accused persons, namely, Md. Rashidul Islam and Md. Noor Ahmed but not against the present petitioner. It is submitted at Page No.# 3/5

the Bar that charge-sheet has not named the present petitioner as an accused.

6. Considering the above facts and circumstances, it is submitted that the petitioner is entitled to the custody of the vehicle during the pendency of the trial, more so, as the vehicle has been by the petitioner under finance and he has received Final Demand Notice for clearing outstanding amounts from the finance company and the petitioner would not be in a position to repay the outstanding amount unless he can utilize his truck commercially.

7. In this regard, the learned counsel for the petitioner has placed reliance in the decision of Hon'ble Supreme Court in Bishwajit Dey Vs. The State of Assam (2025 INSC 32), wherein, the Hon'ble Supreme Court has observed as follows:-

"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 Page No.# 4/5

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."

8. In the aforesaid case, the Hon'ble Supreme Court has observed that after conclusion of the investigation, a charge-sheet filed before the learned Special Judge, Karbi Anglong, neither the owner of the vehicle nor the driver has been arrayed as an accused. And that 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. Therefore, the conveyance is entitled to be released on superdari.

9. The Court was also of the view that if the vehicle is allowed to be kept in the custody of police till the trial is over, it will serve no purpose and took 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. 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).

10. The facts of the present case are also strikingly similar inasmuch as the Page No.# 5/5

owner/petitioner has not been arrayed as an accused in the charge-sheet, thereby implying that the contraband that was been carried in the said truck as alleged was not with the knowledge or connivance of the owner/petitioner.

11. Consequently, the present Criminal Petition is allowed with directions to the learned Trial Court to release the vehicle in question in the interim to the custody of the petitioner 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 petitioner 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.

12. Accordingly, the impugned order dated 09.06.2025 passed by the Sessions Judge, Karbi Anglong at Diphu, in NDPS Case No. 34/2025 is set aside and quashed.

13. This criminal petition stands allowed and disposed of.

JUDGE

Comparing Assistant