Orissa High Court
Rabindra Kumar Behera vs State Of Odisha .... Opposite Party on 15 January, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.503 of 2022 & batch
CRLREV No. 503 of 2022
Rabindra Kumar Behera .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 555 of 2022
Bajrang Lal .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 400 of 2021
Kumuda Chandra Mohapatra .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 154 of 2022
Chitaranjan Sikdar .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 205 of 2022
Babuli Pangi .... Petitioner
-versus-
CRLREV No.503 of 2022 and batch Page 1 of 25
State of Odisha .... Opposite Party
CRLREV No. 253 of 2022
Raj Kumar Soni .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 266 of 2022
Narayan Chandra Mohanty .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 346 of 2022
Nasim Khan .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 353 of 2022
Bhupendra Sahu .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 356 of 2022
Malaya Ranjan Bhukta .... Petitioner
-versus-
CRLREV No.503 of 2022 and batch Page 2 of 25
State of Odisha .... Opposite Party
CRLREV No. 361 of 2022
Surender .... Petitioner
-versus-
Union of India (N.C.B.) .... Opposite Party
CRLREV No. 380 of 2022
Renubala Nayak .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 383 of 2022
Tofan Nayak .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 384 of 2022
Abhisek Biswas .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 388 of 2022
Tara Devi .... Petitioner
-versus-
CRLREV No.503 of 2022 and batch Page 3 of 25
State of Odisha .... Opposite Party
CRLREV No. 389 of 2022
Prasanta Kumar Pradhan .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 395 of 2022
Miriyala Showribabu .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 436 of 2022
Rahul Digal .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 438 of 2022
Mohammad Rizwan .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 444 of 2022
Madhaba Khara .... Petitioner
-versus-
CRLREV No.503 of 2022 and batch Page 4 of 25
State of Odisha .... Opposite Party
CRLREV No. 450 of 2022
Fatima Bibi .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 451 of 2022
Chittaranjan Moharana .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 471 of 2022
Sabina Bibi .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 479 of 2022
Rajesh Jani .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 482 of 2022
Mohammad Ashan Alam .... Petitioner
-versus-
CRLREV No.503 of 2022 and batch Page 5 of 25
State of Odisha .... Opposite Party
CRLREV No. 487 of 2022
Narottam Digal .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 491 of 2022
Susanta Debnath .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 515 of 2022
Pankajini Bagha .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLMC No. 150 of 2023
K. Mahaswar Rao .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 19 of 2023
Prime Mover Mobility
Technologies Pvt. Ltd, Bangalore .... Petitioner
-versus-
CRLREV No.503 of 2022 and batch Page 6 of 25
State of Odisha .... Opposite Party
CRLREV No. 26 of 2023
Sadasiva Bhola .... Petitioner
-versus-
State of Odisha .... Opposite Party
CRLREV No. 77 of 2023
Santosh Kumar Dash .... Petitioner
-versus-
State of Odisha .... Opposite Party
Advocates appeared in this case through Hybrid Mode :
For Petitioner :Mr. S. R. Mulia, Advocate
Mr.Devasish Panda, Amicus Curiae
(In CRLREV No. 503 of 2022)
Mr.Anupam Dash, Advocate
(In CRLREV No. 555 of 2022 & batch)
For Opposite Party : Mr. L. Samantary, A.G.A.
CORAM:
HON'BLETHE CHIEF JUSTICE
AND
HON'BLE MS. JUSTICE SAVITRI RATHO
...............................................................................
Date of Judgment : 15.01.2025
...............................................................................
SAVITRI RATHO, J. The following question had been referred to the
Division Bench by a learned Single Judge of this Court by a common order
dated 23.08.2022 passed in CRLREV No. 346 of 2022, CRLREV No. 205 of
2022, CRLREV No. 253 of 2022, CRLREV 266 of 2022, CRLREV No. 353
of 2022 and CRLREV No. 356 of 2022 :-
"to examine the question as to whether the provision under Section
457 of Cr.P.C. will have no application in a case of release of the
vehicle seized under the N.D.P.S. Act during investigation or trial
of the case."
2. This common order dated 23.08.2022 had been passed by the
learned Single Judge while hearing the batch of criminal revisions which
had been filed challenging the orders rejecting applications filed U/s. 457
of Cr.P.C., for release of vehicles, seized in connection with prosecutions
under the NDPS Act, by the learned Courts below. Other criminal revisions
involving similar question had also been tagged and listed before us
alongwith CRLREV No. 346 of 2022, CRLREV No. 205 of 2022, CRLREV
No. 253 of 2022, CRLREV 266 of 2022, CRLREV No. 353 of 2022 and
CRLREV No. 356 of 2022.
3. We have heard Mr. D Panda learned amicus curiae, Mr. S.R. Mulia
and Mr. Anupam Dash learned counsel and Mr. L. Samantray, learned
Additional Government Advocate. The other counsel for the petitioners
adopted the submissions of Mr. Panda, learned amicus curiae.
4. It was the submission of Mr. Panda and Mr. Dash learned counsel
that there is no bar in the NDPS Act for entertaining applications under
Section - 451 and 457 of the Cr.P.C for interim release during pendency of
the trial for which the power under Sections 451 and 457 of the Cr. P.C
could be invoked for interim release of such vehicles. They had also
submitted that in many of the cases, the owner is not an accused in the case
but the vehicles seized during investigation are left lying in open in the
Police Station or Excise Office premises, exposed to the vagaries of weather
and miscreants. As a result the vehicles get damaged and sometimes its parts
are also stolen. So by the time of conclusion of the trial and / or the
confiscation proceedings, the value of the vehicle has gone down
substantially which does not benefit the State or the owner. Often the owners
who are not accused in the case and even where the vehicle has been utilised
for carrying contraband inspite of precautions taken by them , have to suffer
pecuniary loss due to damage to the vehicles. They have also submitted that
if the vehicles are released in the interim, pending finalization of the
proceedings, imposing suitable conditions, the interest of the prosecution as
well as the owner will be protected.
5. The learned counsel for the State did not dispute the contention that
there was no prohibition in the NDPS Act for interim release of the vehicle
during pendency of the confiscation proceeding or criminal case. But he had
submitted as the Legislature had not included any provision for interim
release of the vehicle in the NDPS Act, which is a special enactment and as
there was a provision in the NDPS Act for confiscation of the vehicle, the
provision would be rendered redundant and the trial of the case would be
hampered, if the interim release of a vehicle would be allowed during
pendency of the trial. It was also his submission that the vehicle may again
be used for similar purpose, which would defeat the aims and objection of
the enactment of the NDPS Act.
6. The learned counsel had relied on a number of decisions of this
Court as well as the Supreme Court in support of their submissions.
7. After the reference had been heard and reserved for judgment but
before we could deliver the judgment answering the reference, the Supreme
Court in the case of Bishwaji Dey vs. State of Assam: 2025 INSC 32: 2025
SCC Online SC 40 has delivered a judgment on 07.01.2025, dealing with
the identical question, in the application filed by the owner of a vehicle for
interim release of the vehicle which had been seized in connection with a
case registered for commission of offences under the NDPS Act .
8. In the case of Bishwajit Dey (supra), the truck had been seized by
the police on 10.04.2023 and two soap boxes covered with black tarpaulin
containing heroin were recovered from the hood of the vehicle. The
suspected substance was confirmed to be 24.8gm of heroin which was being
carried by the main accused who had boarded the vehicle at Manipur. The
owner of the vehicle was not an accused in the case and had been cited as a
witness in the case. As his prayer for interim release of the vehicle was
rejected by the learned Special Judge as well as the High Court, the appellant
had approached the Supreme Court, stating that the vehicle which had been
purchased for commercial purpose on monthly equated installment was the
only source of income of the appellant and it was getting damaged lying
unattended in the police station campus, exposed to sun and rain. He relied
on the case of Sunderbhai Ambala Desai V. State of Gujarat, (2002) 10
SCC 283 and the decision of the Patna High court in the case of Bhola
Singh @ Ayush Singh vs. The State of Bihar, Criminal Misc.
No.40912/2016.
9. The counsel appearing on behalf of the State of Assam had opposed
the prayer for interim release interalia contending that the NDPS Act being a
special enactment is a complete code by itself and did not contemplate
interim release of a vehicle during pendency of the trial. She had referred to
Chapter-IV of the NDPS Act which dealt with offences and penalties and
Chapter-V which deals with procedure and relied on the decisions of the
High Court of Delhi, Kerala and Calcutta where interim release had been
refused. Relying on the decisions in the cases of (i) Smt. Narender Kaur vs
Arun Sheoran: 2000 SCC OnLine Del-502, (ii) Ganga Hire Purchase
Pvt. Ltd. vs State Of Punjab & others:(1999) 5 SCC 670, (iii) Union of
India vs. Dinesh Kumar Verma: (2005) 9 SCC 330, (iv) Shajahan vs.
Inspector of Excise: (2019) SCC OnLine Ker 3685, (v) Moumita Saha :
2023 SCC OnLine Cal 1094, she had submitted that the seized vehicle
would be required during trial and if it was released during pendency of
the trial, it may not be available for such purpose. She had also submitted
that if released, the vehicle may again be utilized for the same purpose
and encourage third party misuse for transportation and smuggling of
drugs and undermine the drive to combat such illegal activity.
10. The Supreme Court after discussing the provisions of Section- 36C,
Section 60, the second proviso to Section 63 of the NDPS Act and the earlier
decisions of different High courts and the Supreme Court, observed that in
the decisions relied on by the State of Assam, interim release of vehicles had
not been allowed, but in the cases of 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, in NDPS cases, the
Courts had directed for release of vehicles in the interim. It further held that
the judgments of the Supreme Court did not lay down any general
proposition of law and went on to lay down the law.
11. The relevant portions of Section - 451 and 457 of the Code of
Criminal Procedure and Section- 36 C, Section 51, 52 A Section 60 and, the
second proviso to Section 63 of the NDPS Act are extracted below:
Code of Criminal Procedure
"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 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."
Narcotics drugs and Psychotropic Substances Act
"Section 36C of the NDPS Act: "Save as otherwise provide 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...."
". Section 51. 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."
"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...."
"Section 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 [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 subsection
(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.
"Section 63 Second Proviso:
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
12. The relevant portions of the judgment of the Supreme Court
are extracted below;
"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 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:KHCK: 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
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.
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
NDPS Karbi Anglong. 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.
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).
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."
13. On a consideration of the submission of the learned counsel, the
provisions of Section - 451 and 457 of the Cr.P.C and Section 51 of the
NDPS Act, and the decision of the Supreme Court in the case of Bishwajit
Dey (supra), we answer the reference in the following manner:-
(i) 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.
(ii) 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 release of the seized vehicle
pending final decision in the criminal case.
(iii) The Court has the discretion to release the seized vehicle in the
interim but the power has to be exercised in accordance with law, in the
facts and circumstances in each case.
(iv) If the Court decides to exercise its discretion to release a vehicle in
the during pendency of the criminal case, suitable conditions have to be
imposed to ensure its identification and production during trial with an
embargo on its sale and / or transfer till conclusion of the trial and for
submission of a specific undertaking for production of such vehicle.
14. The cases may now be listed before the assigned Single Bench for
disposal in accordance with law.
(SavitriRatho)
Judge
Chief Justice. I agree.
(ChakradhariSharan Singh)
Chief Justice
Orissa High Court, Cuttack
Dated 15.01.2025/Subhalaxmi
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 20-Jan-2025 19:39:54
