This criminal revision has been filed under Section 438 read with Section
442 of BNSS Act assailing order dated 25.10.2024 passed in MJCR case No.
No. MBLHAW285R4E01865 on Supurdagi has been dismissed.
investigation has not been completed. Trial Court has wrongly dismissed
applicant's application. Learned counsel for the applicant, after referring to
Bench of this Court in M.Cr.C. No. 38089/2021 (Surendra Dhakad Vs. State
of MP) vide order dated 13.01.2022, in Cr.R. No. 2971/2019 (Manoj Kumar
Vs. State of MP) vide order dated 27.08.2019 and in Cr.R. No. 3530/2021
(Rahul @ Anurag Chourasiya Vs. State of MP) vide order dated
only after completion of trial and Collector has no right to confiscate the vehicle
seized under NDPS Act. On above grounds, it is urged that order passed by the
trial Court be set aside and HF Deluxe motorcycle bearing chesis No.
MBLHAW285R4E01865 be released and given on supurdagi.
3. Learned counsel for the State submits that confiscation proceedings are
under going on. No final order of confiscation has been passed in the instant
case. Further, investigation under Section 193 of BNSS (Section 173 of Cr.P.C.)
is still going on. If vehicle is released on supurdagi, then, it may be disposed of
by the owner of vehicle. Learned counsel for the respondent/State further
seized under NDPS Act can only be disposed of by drug disposal committee. On
above grounds, it is urged that revision filed by the applicant be dismissed.
4. Heard learned counsel for the parties and considered rival submissions
made hereinabove and has also gone through the record of the case.
5. Before discussing the issues involved in the case, it would be appropriate
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 after
following the procedure hereinafter specified.
(iv). 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
such offence has been committed, shall be liable to confiscation.
(2) Any narcotic drug or psychotropic substance for 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 for 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 for 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 for 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) 63. Procedure in making confiscations:-
(1) In the trial of offences under this Act, whether the accused is
convicted or acquitted or discharged, the cour shall decide
whether any article or thing seized under this Act is liable to
confiscation under Section 60 or Section 61 or Section 62 and, if
it decides that the article is so liable, it may order confiscation
accordingly.
(2) Where any article or thing seized under this Act appears to be
liable to confiscation under Section 60 or Section 61 or Section
62, but the person who committed the offence in connection
therewith is not known or cannot be found, the court may inquire
into and decide such liability, and may order confiscation
accordingly:
Provided that no order of confiscation of an article or thing shall
be made until the expiry of one month from the date of seizure,
or without hearing any person who may claim any right thereto
and the evidence, if any, which he produces in respect of his
claim:
Provided further that if any such article or thing, other than a
narcotic drug psychotropic substance, [controlled substance,] the
opium poppy, coca plant or cannabis plant is liable to speedy and
natural decay, or if the court is of 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."
6. Thus, Section 60 of NDPS Act provides for confiscation of vehicle seized
in commission of the offence punishable under the provisions of the NDPS Act.
Section 60 of NDPS Act does not provide for confiscation of any vehicle
immediately after its seizure. Confiscation is a separate procedure unconnected
with conviction, acquittal, or discharge of the accused. It is only satisfaction of
the court trying an offence under the Act, to decide as to whether the vehicle is
liable to be confiscated or not. A detailed procedure for making confiscation
under Section 60 of the NDPS Act has been provided in Section 63 of NDPS
Act.
7. As such, by virtue of Section 60 of the NDPS Act, any conveyance used
for commission of offence is liable to confiscation in accordance with Section
63 of the NDPS Act after hearing the person who may claim any right thereto
and considering the evidence, if any, which he may produce in support of the
claim and confiscation order can be made only at the end of the trial. Neither of
the said provisions (Section 60 and 63 of the NDPS Act) contained in the Act
prohibits/bars trial Court to make an order for proper custody of such a
conveyance pending trial.
8. By virtue of Section 51 of the NDPS Act, the provisions of the Code of
Criminal Procedure, 1973 have been made applicable in so far as they are not
inconsistent with the provisions of the Act, to searches and seizures made under
the Act. Since the provision contained in Section 451/457 of the Cr.P.C.,
providing provision for interim custody, in so far as it relates to passing of order
for proper custody of conveyance pending conclusion of trial, is not inconsistent
with any of the provisions including Sections 60(3) and 63 of the NDPS Act, in
appropriate cases, order for release of conveyance used for carrying narcotic
drugs pending conclusion of trial can be passed under Section 451/457 of the
Cr.P.C.
9. Further, vide Amendment Act No.2 to 1989, the NDPS Act was amended
and Section 36-C was inserted in the Act. By virtue of Section 36-C of the
NDPS Act, "Save as otherwise provided in this Act", the provisions of the
Cr.P.C. have been made applicable to the Special Court constituted under the
provisions of the NDPS Act by Amendment Act No.2 of 1989 with effect from
29.5.1989. "Save as otherwise provided in the Act" employed in Section 36-C
of the NDPS Act, is indicative of the fact that unless, either expressly or
impliedly, operation/application of any provisions contained in Cr.P.C. stands
excluded to NDPS Act, including any provision of Cr.P.C., which is
contrary/inconsistent with provision of NDPS Act, remaining provisions of
Cr.P.C. shall apply to the proceeding under NDPS Act. Hence, once the Cr.P.C.
has been made applicable, the provisions of the Cr.P.C. contained in Sections
451 and/or 457 of the Cr.P.C. would automatically be attracted. As such, with
effect from 29.5.1989, the Cr.P.C. as a whole, subject to the exception carved
out as noticed herein-above, has been made applicable to the proceeding before
the Special Court constituted under NDPS Act and therefore application under
Section 451 or 457 of the Cr.P.C. for interim custody of the vehicle seized for
commission of offence punishable under the NDPS Act would be maintainable
and the Special Judge, NDPS Act is empowered to consider the application
under Section 451/457 of the Cr.P.C. on merits.
10. Since the provisions of the Cr.P.C., including Section 451/457, have been
expressly made applicable by virtue of Section 36-C/51 of the NDPS Act to the
proceedings before the Special Court (NDPS) and there is no express bar
contained in the NDPS Act for grant of interim custody, therefore, merely on
the ground that the vehicle is liable to confiscation under Section 60 of the
NDPS Act, it cannot be held that once the vehicle is seized for commission of
offence under the NDPS Act, interim custody cannot be granted, as jurisdiction
of criminal court has to be construed strictly unless expressly excluded.
11. There is no provision in the NDPS Act to restrict the power of the trial
Court to release the vehicle on interim custody. It has been held by this Court in
the case of Pandurang Kadam vs State of M.P., 2005 (2) ANJ MP 351, that
notwithstanding the fact that the vehicle is liable to be confiscated under Section
60 of the NDPS Act, it may be released on interim custody in appropriate cases.
Thus, interim custody should not be denied to the owner of the vehicle, simply
because it is liable to be confiscated under Section 60 of the NDPS Act.
12. So far as submissions of learned counsel for the respondent/State with
respect to applicability of 16 to 23 of Rules 2022 are concerned, perusal of
aforesaid rules clearly reveals that they also deals with "disposal" of
conveyances seized under the NDPS Act. Aforesaid rules do not deal with
confiscation of conveyances seized under the NDPS Act. "Confiscation" and
"Disposal" are not one and the same. Sections 60 and 63 of NDPS Act deals
with confiscation of vehicles used for commission of offence under the NDPS
Act and Section 63 of NDPS Act provides for procedure for confiscation of any
such vehicle. In Rules 16 to 23 of Rules 2022, there is no reference or mention
of Sections 60 and 63 of NDPS Act. Further, aforesaid rules 2022 do not
prohibit or bar Special Court constituted under NDPS Act to release/give
vehicle on interim supurdagi during pendency of trial. Hence, in this Courts‟
considered opinion, rules 16 to 23 of Rules 2022 cannot be
interpreted/construed so as to mean that trial Court under NDPS Act is not
empowered to release/give vehicle on interim supurgadi. In this courts‟ opinion,
harmonious interpretation of Sections 60 and 63 of NDPS Act and Rule 16 to 23
of Rules 2022 would be that whenever Special Court constituted under NDPS
Act confiscates the conveyance in accordance with Section 60 and 63 of NDPS
Act, thereafter such vehicle would be disposed of by drug disposal committee as
per Rules 2022.
13. Recently Hon‟ble Apex Court in Bishwajit Dey Vs. State of Assam,
2025 SCC Online SC 40 has examined the issue in detail and has laid down in
as under:-
COURT'S REASONING
NO SPECIFIC BAR/RESTIRICTION 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 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 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
superdagi 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.
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 supurdagi 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 supurdagi 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 charge sheet has been filed in the Court of
Special Judge, NDPS Karbi Anglong. In the said charge sheet,
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 supurdagi.
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."
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)."
14. The Supreme Court in Sunderbhai Ambala Desai Vs. State of Gujarat,
2002(10) SCC 283 has laid down parameters for considering the application for
interim custody expeditiously and judiciously so that the owner of the article
would not suffer because of its remaining unused or by its misappropriation and
court or the police would not be required to keep the vehicle in safe custody. It
was observed as under:-
"7. In our view, the powers under Section 451 Cr.P.C. should be
exercised expeditiously and judiciously. it would serve various
purposes, namely:-
1. owner of the article would not suffer because of its remaining
unused or by its misappropriation.
2. court or the police would not be required to keep the vehicle in
safe custody;
3. if the proper panchanama before handing over possession of
article is prepared, that can be used in evidence instead of its
production before the Court during the trial. If necessary,
evidence could also be recorded describing the nature of the
property in detail; and
4. this jurisdiction of the Court to record evidence should be
exercised promptly so that there may not be further chance of
tampering with the articles."
15 Thus, from discussion in the forgoing paras and having regard to relevant
legal provisions as well as pronouncements of Hon‟ble Apex Court as well as
Coordinate Bench of this court, this court is of the opinion that there is no such
bar/prohibition under NDPS Act/Rules 2022 that Special Court constituted
under NDPS Act, during pendency of trial, cannot release/give conveyance
seized under the NDPS Act on interim custody/Supurdagi. Hence, Special
Court under NDPS Act, after having regard to all the facts and circumstances of
the case, has jurisdiction to release conveyance seized under the NDPS act on
interim custody/supurdagi during pendency of the trial.
Final Conclusions:-
16. So far as facts of present case are concerned, in the instant case, one HF
Deluxe motorcycle bearing chesis No. MBLHAW285R4E01865 has been
seized under NDPS Act on the ground that the vehicle was being used for
transportation of ornex cough syrup bottles without any licence. This court has
examined record of the case and there is nothing on record as such so as to
justify not to give vehicle on interim supurdagi during pendency of the trial.
17. Accordingly, the present Criminal Revision in respect of seized HF
Deluxe motorcycle bearing chesis No. MBLHAW285R4E01865 is allowed and
the impugned order dated 25.10.2024 passed by the learned 2 nd Additional
Special Judge (NDPS), Rewa, in MJCR No. 2160/2024, to the extent of
rejection of application for releasing of seized HF Deluxe motorcycle in MJCR
No. 2160/2024 filed by the applicant under Sections 451 and 457 of Cr.P.C, is
hereby set aside. It is directed that the vehicle of the applicant bearing chesis
No. MBLHAW285R4E01865, in Crime No. 401/2024 registered at Police
Station Semariya, District Rewa for the offence Punishable under Section 8, 21
and 22 of NDPS Act be released on temporary supurdagi till the conclusion of
trial on the following terms and conditions :-
1. The applicant Rishabh @ Prakash Singh shall furnish
Supurdiginama of a sum of Rs.,50,000/- (Rupees Fifty
Thousand Only) alongwith a surety of the like amount to the
satisfaction of the trial Court for releasing the vehicle in
question;
2. The applicant shall also furnish an undertaking that he shall
produce the vehicle in question on his own expenses as and when
required during the trial;
3. The applicant shall not alienate the same and shall not use
such vehicle for any unlawful purpose during pendency of the
case;
4. An undertaking shall also be given by the applicant that
condition of the vehicle in question shall not be changed or
altered in any manner whatsoever;
5. In the event of confiscation order by the Court competent, the
applicant shall produce the vehicle positively for confiscation.
18. It is further directed that before releasing the vehicle on interim custody
of the applicant, the S.H.O. of concerning police station shall get all the papers
of vehicle from registered owner and shall verify the same and will also get
video and still photographs of 18 x 12 inches of the concerned vehicle taken
from all sides and also the photographs showing engine number and chassis
number. Such papers and photographs etc. shall be authenticated by
Investigating Officer and owner/accused and they shall be filed in the trial Court
to be kept along with the record.
19. With the aforesaid directions, this petition stands disposed of.
[
(ACHAL KUMAR PALIWAL)
JUDGE
Digitally
L.R. signed by
LALIT SINGH RANA
-
Date: 2025.03.28
17:49:10 +05'30'
