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Synopsis

The Supreme Court on January 7, 2024, held that the NDPS Act does not impose any specific restriction on the interim return of a seized vehicle used for transporting narcotic drugs or psychotropic substances while the criminal case is pending.

"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 CrPC 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," a bench of Justices Sanjay Karol and Manmohan said.

The bench explained that upon a reading of the NDPS Act, it transpires that the seized vehicles can be confiscated by the trial court only on conclusion of the trial when the accused is convicted, acquitted or discharged.

Further, the bench said that 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," the bench said.

The court directed for release of a truck, seized after police checked it on April 10, 2023, while coming from Dimapur and found a man carrying heroin. The accused had boarded the truck in Manipur and the driver and helper were cited as witnesses in the case.

The appellant, the truck owner Bishwajit Dey, sought release of his vehicle, which was declined by the trial court and the high court.

The appellant stated he purchased the vehicle for commercial purposes and paid Rs 1,00,20 as monthly EMI. He said the vehicle since seized had been lying unattended at the Police station campus and was exposed to sun and rain thereby rendering it to natural wear and tear and deterioration. He referred to and relied upon Sections 451 and 457 of the Code of Criminal Procedure to seek the release of the vehicle.

Assam government counsel opposed the plea, contending that the NDPS Act, being a complete code, does not, unlike the Code of Criminal Procedure, contemplate interim release of a seized conveyance during pendency of the trial.

The counsel said seized vehicle is a material evidence that directly links the accused to the commission of the offence, particularly since it was used as a means to transport and conceal the contraband substance. She stated that during the course of the trial, the seized vehicle would be required for inspection, demonstration or verification to substantiate the prosecution’s case and to establish the manner in which the offence was committed.

She said the vehicles involved in the commission of offences under stringent laws, such as the NDPS Act, serve as essential tools for offenders to execute their illegal activities and releasing such a vehicle prematurely may increase the risk of its reuse.

Rejecting the arguments, the bench said, "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!"

The court said, 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.

"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," the bench said.

Considering various scenarios, the bench said the vehicle may not be released on superdari, if the accused is the owner or person employed by the owner till reverse burden of proof is discharged by the accused-owner.

However, in the other scenarios, where no allegation has been made against owner 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, the court said.

In the instant case, the bench said, neither the owner of the vehicle nor the driver had been arrayed as an accused. Only a third-party occupant had been arrayed as an accused. The police after investigation had not found that the appellant i.e. the owner of the vehicle, had 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, it opined.

"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," the bench said.

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), the bench added.

The court accordingly issues 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 would be authenticated by the Investigating Officer, owner of the vehicle and accused by signing the same.

Further, the appellant was directed not to sell or part with the ownership of the vehicle till conclusion of the trial. He was told to furnish an undertaking to the trial court that he would surrender the vehicle within one week of being so directed and/or pay the value of the vehicle if so ultimately directed by the court.

Case Title: Bishwajit Dey Vs The State of Assam