Gauhati High Court
Page No.# 1/6 vs The Union Of India on 28 August, 2025
Page No.# 1/6
GAHC010182752024
2025:GAU-AS:11528
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1179/2024
JIAUR RAHMAN @ JIYAUR RAHMAN
S/O ALA UDDIN
VILL- TELITIKAR PART-II, P.O. RAJARTILLA, P.S. KATIGORAH,
DIST. CACHAR, ASSAM
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, CUSTOM DEPARTMENT.
Advocate for the Petitioner : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR
Advocate for the Respondent : SC, CUSTOMS,
BEFORE
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
ORDER
28.08.2025
Heard Mr. H.R. Choudhury, learned counsel appearing for the
petitioner. Also heard Ms. P. Upadhaya, learned Standing Counsel for
Customs.
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2. This Criminal Petition is directed against the impugned order dated
16.07.2024, rejecting the zimma petition of the vehicle of the petitioner
passed by the Court of learned Addl. Sessions Judge, Karimganj in
Special NDPS Case No. 01/2023 arising out of departmental Case No.
02/CL/NDPS/AS/KXJ/2022-2023 filed by the Inspector, Anti Smugling
Unit, Customs Division, Karimganj.
3. The facts of the case is that acting on specific Information, one
Alto-800 Car bearing registration no. ML-05P-8654 was intercepted at
Hilara Railway Crossing on NH-6, near Kalain, Assam at about 01:20 hrs
on 28.12.2022. On checking of the said Car 17000 Yaba Tablets in 89
plastic pouches recovered from secret cabinet which was made in Left-
Rear-door's board of the car. The 17000 Yaba Tablets kept in 89 plastic
pouches further kept in 02 packages each one wrapped with brown
Paper and brown cello tape along with Alto-800 car bearing Registration
No. ML-05P-8654, one No. of mobile handset, Driving License of said Shri
Jiaur Rahman and RC of the said car were seized by the Customs Officer
vide seizure case No.02/CL/NDPS/AS/KXJ /2022-23 dated 28/12/2022 for
contravention of provisions of Section 8 (c) of the NDPS Act, 1985 by the
person.
4. It is submitted on behalf of the petitioner that since the
investigation of the case is long over, there is no necessity of retaining
the vehicle by the Police and the condition of the vehicle is deteriorating
with the passage of time and accordingly prays for its release. It is
further submitted that more than one year has lapsed since the passage
of the impugned order dated 16.07.2024, rejecting the prayer for zimma
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of the said vehicle.
5. The learned counsel has relied on the decision of this Court in
Criminal Petition No. 999/2023 dated 30.11.2023, and also on the
decision of the Hon'ble Supreme Court in Sunder Bhai Ambalal Desai
Vs. State of Gujarat reported in (2002) 10 SCC 283, wherein it was
observed that by the Hon'ble Apex Court that it is of no use to keep the
seized vehicle at the Police Station for a long period and that the object
of Section 451 and Section 457 of the Cr.PC is that the owner of the
vehicle should not suffer for it remaining unused or by its
misappropriation.
6. In a recent decision of the Hon'ble Supreme Court in Bishwajit
Dey Vs. State of Assam 2025 INSC 32; it was 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
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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"
7. In the present case, the owner of the vehicle i.e the petitioner was
himself driving the vehicle wherefrom the seized contraband was
recovered and therefore, this case is squarely covered by the first
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category referred to and the Hon'ble Supreme Court has held that in
such a scenario, the vehicle may not be released till reverse burden of
proof is discharged by the accused owner.
8. However, in the said Judgment, it has been clarified that the same
should not be taken as laying down a rigid formula and it will be open for
the Trial Court to take at different view if the facts of the case so
warrant.
9. In the present case, the vehicle has been lying in the custody of
the Customs Department since 28.12.2022 and more than 2 and a half
years have lapsed and the condition of the said vehicle would also have
deteriorated considerably due to disuse and exposure. It is also stated
that the vehicle was the source of livelihood of the petitioner who a
driver by profession.
10. It cannot be disputed that if the vehicle is allowed to remain in its
present state, it will be of little value at the end of the Trial in the event
that the vehicle is not found liable for confiscation. Therefore, the Court
is of the considered view that in the facts of the present case, it would
be in the interest of justice to hand over custody of the vehicle to the
petitioner for the remainder of the Trial.
11. Accordingly, the impugned order dated 16.07.2024 is set aside.
12. The learned Trial Court is directed to pass appropriate orders
imposing necessary conditions upon which the concerned authorities
may release the vehicle Alto-800 Car bearing registration no. ML-05P-
8654, to the custody of the petitioner.
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13. The Criminal Petition accordingly stands allowed.
JUDGE
Comparing Assistant
