Orissa High Court

Chinmaya Mallick vs State Of Odisha .... Opposite Party(S) on 7 March, 2025

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    CRLMC No.5032 of 2023
                 Chinmaya Mallick                  ....                Petitioner(s)
                                                           Mr. J. Sahu, Advocate
                                            -versus-

             State of Odisha                       ....          Opposite Party(s)
                                                             Mr. B. Nayak, AGA


                     CORAM: JUSTICE SIBO SANKAR MISHRA

                                          ORDER

Order No.                                07.03.2025
 05.        1.        Heard.

2. The petitioner is aggrieved by the order dated 12.11.2021

passed by the learned Additional Sessions Judge, Padampur in

Special G.R. Case No.35 of 2021, whereby his application under

Section 457 Cr.P.C. for releasing of the DZIRE VXI four wheeler

vehicle bearing Registration No. OD-15R-0821 has been rejected.

The learned trial Court has rejected the application of the petitioner

inter alia observing as under:-

"There is no provision under the NDPS Act, which empowers the trial court to make an order for granting Interim custody of such a conveyance, pending trial. Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure shall apply, in so far as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Section 5 of the Code provides that nothing contained in the Code shall, in the absence of a

specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 5 of Cr.P.C. provides that nothing in the code shall affect any special law. A special law is a law applicable to a particular subject. The existence of a special law does not exclude the operation of the Code unless the special law expressly or impliedly provides in that regard, in which case, special law will apply. There is no specific provision in the NDPS Act which expressly or impliedly excludes the operation of Section 451 of the Code. The provisions of Section 451 of the Code are also not inconsistent with any of the provisions of the NDPS Act, including Sections 60(3) and 63 of the NDPS Act. Therefore, the court can invoke the general provisions of Section 451 of the Code for handing over the interim custody of the seized vehicle, pending the final decision of the criminal case. The only consideration on the part of the court in handing over the interim custody of the vehicle to the registered owner is that the registered owner of the vehicle must produce the vehicle before the court for trial and also for the purpose of confiscation, if required by the court and for securing that the said vehicle is not used in similar type of offence in future.

Under the NDPS Act, the court alone is having the Jurisdiction to confiscate the vehicle seized under the Act. No Officer of the Police or Excise Department is vested with the power of confiscation of vehicle under the NDPS Act. Section 63(1) clearly says that the court shall decide whether any article or thing seized under the Act is liable to confiscation under Section 60, Section 61 or Section 62, irrespective of whether the accused is convicted or acquitted or discharged. This would show that the question of confiscation arises only after the conclusion of the criminal case. It is not possible to state when the trial will be concluded after the seizure of the property. Therefore, if the vehicle is not released to the interim custody of the registered owner of the vehicle, there is likelihood that the value of the vehicle will be lost due to the ruining of the vehicle in rain and sun."

3. Learned counsel for the petitioner by relying upon the

judgment of the Division Bench of this Court in CRLREV No.503

of 2022 and batch and submits that the law in this regard is now

well settled and the Division Bench of this Court has already settled

the law that during pendency of the trial, the vehicle involved in a

NDPS case can be released interregnumly, as there is no legal bar.

He has relied upon paragraphs-33 to 36 of the said judgment, which

reads as under:-

"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 CRLREV No.503 of 2022 and batch Page 23 of 25 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 CRLREV No.503 of 2022 and batch Page 24 of 25 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."

4. Learned counsel for the State submits that the vehicle has

been used for commission of alleged offence punishable under

Section 20(b)(ii)(B)/25/27 of the NDPS Act and the petitioner is

one of the accused therein. The trial in the present case is going on.

However, in so far as the judgment of the Division Bench of this

Court cited by learned counsel for the petitioner is concerned, he

has no serious objection to the same.

5. Regard being had to the aforementioned, I am of the

considered view that the petitioner shall move appropriate

application before the learned trial Court afresh and the same shall

be considered in the light of the judgment of the Division Bench of

this Court passed in CRLREV No.503 of 2022 and batch.