Jammu & Kashmir High Court
Waqar Younis vs Ut Of J&K on 2 May, 2025
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Sr. No.99
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl R No. 50/2025
CrlM No., 714/2025
Waqar Younis .....Petitioner(s)
Through: Mr. Ashish Sharma, Advocate
vs
UT of J&K ..... Respondent(s)
Through: Mr. Eishaan Dadhichi, GA
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER
02.05.2025
1. Through the medium of the instant petition filed under the provisions of
Section 438 read with Section 442 of the Bharatiya Nagrik Suraksha
Sanhita 2023 (for short BNSS), the petitioner has thrown challenge to the
order dated 22.03.2025 passed by the Court of learned Principal Sessions
Judge, Poonch (for short the trial Court), whereby the learned trial Court has
dismissed the application of the petitioner for release of the vehicle bearing
registration No.JK12A/4098 alleged to have been seized in an NDPS case, in
his favour.
2. The brief facts of the case relevant for disposal of this application are that, a
case FIR No. 167/2024 came to be registered with the Police Station,
Poonch under Sections 8, 21, 22 and 29 of the Narcotic Drugs and
Psychotropic Substances Act (hereinafter referred to as NDPS Act for short)
upon recovery and seizure of the contraband narcotic substance heroin from
the vehicle bearing registration No. JK12A/4098, which at the relevant time
was being driven/boarded by the petitioner and another. The petitioner, after
the conclusion of the investigation in the case FIR and the presentation of
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the final report before the learned trial Court, filed an application for release
of aforementioned seized vehicle. However, the learned trial Court through
the order impugned, dismissed the application for want of jurisdiction on the
ground that the power for disposal of the seized material including
conveyances valuing upto Rs. 50.00 lacs as per Rule 22 of the Notification
bearing GSR 899(E) of 2022 dated 23.12.2022 issued by the Central
Government, Ministry of Finance (Department of Revenue) in exercise of
its powers vested under sections 52-A, read with 76 NDPS Act, lies with the
Drugs Disposal Committee constituted under Rule 19 of the said
Notification.
3. The order impugned has been assailed mainly on the grounds that the
powers of a Special Court constituted for the trial of the offences under the
NDPS Act to consider the release of a seized vehicle in terms of the
provisions of Sections 60 and 63 of the NDPS Act have an overriding effect
on the powers of the Drugs Disposal Committee constituted under Rule 19
of the Notification dated 23.12.2022. That the Drugs Disposal Committee
can exercise its powers regarding disposal of the seized material including
conveyances upto the value of ₹50.00 lacs strictly in terms of the rules
framed by the Central Government, Ministry of Finance (Department of
Revenue) in exercise of powers under Section 76 read with Section 52-A of
the NDPS Act. That the powers already vested with the Court under the
provisions of Sections 60 and 63 of the NDPS Act have an overriding effect
and a special Court is competent to entertain an application to decide the
claim of a person seeking the release thereof, and there is no provision in the
NDPS Act barring the powers of the Court to consider the release of a
vehicle allegedly seized in an NDPS case.
4. I have heard the learned counsel for the parties.
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5. Learned counsel for the petitioner during his arguments inter alia contended
that the powers vested with the Drugs Disposal Committee constituted under
Rule 19 of the Notification dated 23.12.2022 issued by the Central
Government, Ministry of Finance (Department of Revenue) regarding
disposal of the Narcotic Drugs, Psychotropic substance, Controlled
substance or Conveyance, no way bar the powers of the Special Courts
constituted under NDPS Act to entertain and hear an application of the
owner of a vehicle or any other person so as to decide the claim of said
person regarding the release of the vehicle in his favour pending and subject
to the outcome of the trial. He further contended that the provisions of
Sections 60 and 63 of the NDPS Act providing for confiscation of the
contraband Narcotic Substance as also of conveyance at the conclusion of
the trial do not bar the release of a vehicle alleged to have been seized in
NDPS Act in favour of the owner or the bonafide purchaser/holder in
justified circumstances. He further contended that the provisions of sections
60 and 63 of the NDPS Act have an overriding effect over the powers of
Drugs Disposal Committee constituted in pursuance of the Rules farmed by
the Government in exercise of its powers under Section 52-A read with 76.
The learned counsel in support of his arguments placed reliance on the
judgments cited as, “Sunderbhai Ambalal Desai vs State of Gujarat, AIR
2003 SC 638; Manoj Kumar Pandey vs. State of Madhya Pradesh High
Court, August 27, 2019 and Gurbinder Singh @ Shinder vs. State of
Punjab CRR No. 1765 of 2015 decided on Sept. 19, 2016 by the High
Court of Punjab and Hiryana at Chandigarh.”
6. Per contra, the learned counsel for the respondents Mr. Eishaan Dadhichi,
Ld. GA, contended that the order impugned in the revision petition dated
22.03.2025 passed by the learned trial court does not suffer from any
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illegality, incorrectness or impropriety. He contended that the Central
Government, in exercise of its powers under Section 76 read with Section
52-A of the NDPS Act have issued the Notification bearing number GSR
899 (E) of 2022 dated 23.12.2022 for disposal of any Narcotic Drugs,
psychotropic substance, controlled substance and conveyance, having
regard to the hazardous nature, vulnerability to theft, substitution, constraint
of proper storage space, wherein the proper mechanism stands workout for
the disposal of such substances and conveyances. He contended that as per
the said notification of the Central Govt, the Drugs Disposal Committee
constituted under Rule 19 is vested with the powers regarding disposal of
the seized material including conveyance up to the value of Rs.50/- lacs.
7. The learned counsel for the UT further contended that the provisions of
Sections 60 and 63 also provide for the confiscation of the seized Narcotic
Drugs/substance and conveyance.
8. Keeping in view the perusal of the instant petition and the consideration of
the rival arguments advanced on both the sides, in the light of the law on the
subject, this court is of the considered opinion that the order impugned
suffers from illegality, incorrectness and impropriety.
9. While reading the different relevant provisions of the NDPS Act especially
as contained under Sections 51, 52 (4), 52-A, 60 and 63 in juxtaposition,
one reaches to an irresistible conclusion to the effect that :-
i) Provisions of Section 52-A and the Notification issued by
Central Government, there under regarding disposal of
Narcotic Drugs and Psychotropic substance, Controlled
substance or conveyance having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant consideration,
are mainly applicable during investigation process.
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ii) The power of the trial court to order confiscation in
respect of any article or thing liable to such confiscation
in terms of the provisions of sections 60, 61 and 62 is to
be exercised at the conclusion of the trial whether by
way of early discharge or by conviction or by acquittal.
iii) The application of the provisions of Section 497 (1) of
BNSS, 2023, corresponding to Section 451 of the
erstwhile repealed Code of Criminal Procedure, 1973, in
connection with the consideration of an application for
temporary release (subject to final out come of the trial)
of a vehicle allegedly involved in a NDPS case, by a
competent criminal court during investigation of the case
and even pending trial, is not barred in view of the
Section 51 of the NDPS Act.
iv) The initiation of proceeding for disposal of conveyance
(vehicle) alleged to be involved in a NDPS case by the
Drugs Disposal Committee in pursuance of the
notification issued by the Central Government in
exercise of its powers U/ss 76 and 52-A NDPS Act need
to be communicated to a criminal Court seized of an
application for release of a vehicle especially when a
report is called from the Investigating agency in that
behalf.
10.The provisions of Sections 60 and 63 of the NDPS Act do no bar the
consideration of an application for release of conveyance allegedly involved
in NDPS Act during investigation and pending trial of a case.
11.Any order made by a competent criminal court in respect of the release of
conveyance in NDPS case shall be temporary on the basis of
superdnama/panchnama and subject to the outcome of the final orders in
that behalf at the conclusion of the trial of the case.
12.The impugned order providing that, Narcotic Drugs and Psychotropic
substances, controlled substances or conveyances seized under NDPS Act
shall be exclusively disposed of by the Drugs Disposal Committee
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constituted under the Notification dated 23.12.2022 of the Central
Government issued under Section 52-A read with Section 76 of the NDPS
Act and as such according to said Notification the seized vehicle can be
disposed of by the said Committee only, does not appear to be correct.
13.The provisions of Sections 52 (3) and 52-A(2) read with the provisions of
the Notification dated 23.12.2022 issued by Central Government under No.
GSR 899 (E) of 2022 leads to a clear inference that such provisions
regarding disposal of contraband substance and conveyance are mainly
applicable during the investigation stage, as the disposal process, if any,
initiated is meant to be immediately preceded by the requirement of
forwarding of seized property as per inventory before the Magistrate for
satisfying the correctness of the same and for sampling purposes etc.
14.The powers of the criminal court under section 60(3) and 63 of NDPS Act
for consideration of temporary release in respect of a seized vehicle in
NDPS Act have an overriding effect. Sections 60(3) and 63 of NDPS Act
bearing relevance to the issue involved in this case deserve a needful
mentioned as under:-
“60. Liability of illicit drugs, substances, plants, articles and conveyances
to confiscation.-
(1) xxxxx (2) xxxxx (3) Any animal or conveyance used in carrying any
narcotic drug or psychotropic substance, 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.
63. Procedure in making confiscation.- (1) In the trial of offences
under this Act, whether the accused is convicted or THE HIGH COURT
OF MADHYA PRADESH (Manoj Kumar Pandey vs. State of
M.P.) acquitted or discharged, the court shall decide whether any article or
thing seized under this Act is liable to confiscation For Subsequent orders
under section 60 or section 61 or section 62, and, if it decides that the
article is so liable, it may order confiscation accordingly.
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(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 [or 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.”
15.The insertion of Section 52-A enabling the Central Government to issue
notification appear to be backed by the necessity because earlier in the
NDPS Act there were no provisions regarding the pre-trial disposal of the
seized Narcotic drugs and psychotropic substances.
16.The storage of seized narcotic drugs and psychotropic substances up to the
final conclusion of the trial of the cases created many problems. Section 52-
A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe
by a notification the procedure to be followed for seizure, storage and
disposal of drugs and psychotropic substances. So to counter the problems
like vulnerability to theft, substitution, constraints of proper storage space
and other relevant problems, the Central Government in the exercise of that
power has issued said notification, which prescribes the procedure of pre-
trial disposal of seized narcotic drugs, psychotropic substances and
conveyance.
17.This court is in full agreement with the law laid down by Madhya Pradesh
High Court in case titled “Manoj Kumar Pandey vs. State of Madhya
Pradesh decided on 27th August, 2019″, also relied upon by the learned
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counsel for the petitioner. The relevant paras 9, 12 and 13 of the judgment
are reproduced for the sake of convenience:-
“9. However the legislature has not given any power to the Drugs Disposal
Committee to decide the claim of a person who place claims on the
conveyance (vehicle) seized under the provisions of NDPS Act for illegal
transporting of any narcotic drugs and psychotropic substances, as given
by the legislature to the special court under section 60 and 63 of the Act.
Where a person claims for release the vehicle seized under the provisions
of NDPS Act for illegal transportation of any narcotic drugs and
psychotropic substances there are no provisions in the notification to
decide that claim. So, in that case, the provisions of Section 60 & 63 of the
NDPS Act would prevail on the provisions of the notification issued by
the central government under Section 52A of the NDPS Act.
According to the provisions of Section 60 & 63 of the NDPS Act,
seized conveyance cannot be disposed of without deciding the claim of the
person who claimed that conveyance and the power to decide the claim of
such a person is only given by the legislature to special court
under Section 60 & 63 of the NDPS Act. In Sections 52 and 52A of NDPS
Act, the word ‘confiscation’ is not used because the trial is yet to come and
it is the discretion of the trial Court “to confiscate or not to confiscate” the
conveyance seized under the NDPS Act as per the legal provisions.
12. On perusal of the provisions of Section 60(3) and Section 63 of
the NDPS Act, as mentioned above it is clear that the conveyance seized
under the NDPS Act shall be liable to confiscation only when the owner of
the conveyance who was given an opportunity by the Court could not
prove that the conveyance was used without his knowledge or connivance.
The Court will have to decide whether a vehicle seized under the NDPS
Act is liable to confiscation only on conclusion of the trial.
13. There is no provision in the NDPS Act to restrict the power of
the trial Court to release the vehicle in 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 in
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.”
18. The provisions of clause (3) of the Section 60 clearly reveal that a
seized conveyance or an animal liable to be confiscated under clause (1) and
(2) of the said section, can be so confiscated unless the owner of the
conveyance or animal proves that same was so used without his knowledge
or connivance or of his agent.
19. The mere fact that a vehicle used in carrying contraband articles is
liable to confiscation under the provisions of NDPS Act especially under
section 60 (3), is no bar for giving the interim custody of the same to its
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registered owner before passing confiscation order. It is also well settled that
under the provisions of section 497 (1) BNSS corresponding to section 451
of the repealed Code, the court before whom the property is produced is
empowered to release the vehicle during enquiry and trial of the accused
persons. In case “Basawa Kom Dyamangouda Patil vs. State of Mysore“,
the Hon’ble Apex court held “the object and scheme of various provisions
of the Code appear to be: that where the property which has been subject
matter of the offence is seized by the police, it ought not to be retained in the
custody of the court or of the police for any time longer than what is
absolutely necessary.
20. In Nirmal Singh vs State of Punjab, it has been held by the Hon’ble
Apex court that no useful purpose would be served by keeping the vehicle
seized under NDPS Act, parked in the premises of Police Station and it will
be in the interest of justice if such vehicle is ordered to be released on
‘Superdari’ to the petitioner on his furnishing the requisite undertaking.
21. In Khema vs State of Rajasthan, it has been held that the fact that a
vehicle seized under NDPS Act is liable to be confiscation under section 60
of the Act is no ground for denying the interim custody of the vehicle to its
registered owner before passing the confiscation order subject to reasonable
conditions.
22. In 2003 C.L.J 3142 Orissa it has been held that a vehicle seized under
NDPS Act, if allowed to remain in the premises of Police Station without
any care and subjected to rain and sun, is likely to deteriorate. That the
interim release of said vehicle subject to final decision of the case and after
taking undertaking from the registered owner that he will produce it as and
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when required by the trial court and will not transfer it, will meet ends of
justice.
23. In 2002 C.L.J. 2605, Delhi, it has been held that the interim release of
a vehicle seized under, NDPS Act is not inconsistent with the provisions of
NDPS Act. That the pendency of the trial against the driver accused under
NDPS Act is likely to take some time during which period the vehicle
concerned is likely to get further damaged because of its disuse.
24. In Kulvinder Kour vs State 2005 (2) Criminal Court Cases 903
Rajasthan, it has been held that a vehicle seized under the NDPS Act could
be released in favour of the owner if he is not an accused of the offence.
25. In Surjeet Kumar vs State of U.P. 2002 (1) RCR (Cri) 476 Allahabad,
a Special Court had rejected a release application in respect of vehicle seized
under NDPS Act on the ground that the same did not disclose the facts as to
what precautions were taken against the wrongful user of the vehicle. The
Hon’ble High Court has held that the rejection of the application was not
justified.
26. In Drugs Cases (Narcotic 2007 155 Punjab & Haryana), it was held
that it will fetch no useful purpose by not releasing the vehicle to its owner
whose livelihood is linked with the earning of the said vehicle. The owner
should be bound down with the direction to produce it as and when directed
by the trial Court and not the dispose of the said vehicle. Vehicle be released
on Superdnama to the owner.
27. In Hoshar Singh vs State, Crimes 2011 Vol. IV 176 Allahabad, it
was held while making a reference to Hon’ble Apex court judgment titled
Basawa Kom Dyamangouda Patil vs State of Mysore that “from the law laid
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down by Apex Court, it clearly shows that rejecting the application of the
applicant only on the ground that it may be liable for confiscation and it was
used for transporting the Narcotic Substance was against the law. If the
vehicle is given in the Supurdgi and custody of the owner of the vehicle and
later on at final stage of the case, it is found that the same is liable for the
confiscation, the same Court can direct the owner to produce the vehicle
before the Court or the authority concerned.”
28. This court is also conscious of the law laid down by the Hon’ble Apex
Court in “Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003
Supreme Court 638″ in which it has been held that ” Powers under section
451 Cr.P.C (corresponding to Section 497 (1) of BNSS) is intended to serve
various purposes viz:-
i) “Owner of the article would not suffer because of its remaining
unused or by its misappropriation;
ii) Court or the police would not be required to keep the articles in safe
custody;
iii) 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
iv) The jurisdiction of the Court to record evidence should be
exercised promptly so that there may not be further chance
of tampering with the articles.”
29.The transfer of vehicle is governed by a Sale of Goods Act and the transfer
of vehicle under law is complete by the transfer of possession of the same in
a bona fide manner. It has been held by the Hon’ble Apex Court in
“Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari
and others etc. 1997 STPL(LE)23797 SC” that “the definition of owner
under Section 2(19) of the Act is not exhaustive. It has, therefore, to be
construed, in a wider sense, in the facts and circumstances of a given case.
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The expression owner must include, in a given case, the person who has the
actual possession and control of the vehicle and under whose directions and
commands the driver is obliged to operate the bus. To confine the meaning
of ‘owner’ to the registered owner only would in a case where the vehicle is
in the actual possession and control of the hirer, not be proper for the
purpose of fastening of liability in case of an accident.”
30.In “Beni Dan Vs. Laxmichand, 1996 Cri.L.J 1191″ a learned Single bench
of Rajasthan High Court in the context of Sections 451 and 452, Code of
Criminal Procedure, under which provisions also the Magistrate is to decide
who is the best person for the custody and disposal of the property pending
trial and at the conclusion of the trial, respectively, has held in para 15 that:-
“….. It is also true that interim custody under Section 451,
Cr.P.C of the motor vehicle should generally be given to registered
owner for use in the public road and that a heavy burden lies on a
person, who claims that such vehicle has been sold to him or that he has
superior claim, but there cannot be any inflexible rule that under Section
452, Cr.P.C the vehicle should be invariably returned to its registered
owner. On the other hand, the court while passing an order under
Section 452 Cr.P.C should find out as to who is the best person entitled
to the possession of such property.”
31.A similar view has also been already taken by this court in Shanta Devi Vs.
State SLJ 1987 page 132.
32. An application for consideration of the release of a vehicle seized under
NDPS case, can be filed by a bonafie owner also in his capacity as a
purchaser or the attorney holder, as such categories are also included in the
definition of owner.
It is true that Motor vehicles Act. 1988 casts an obligation on the
parties to, transfer of a vehicle, to report the fact to the concerned
Registering Officer and to ensure the transfer of the vehicle in his records
within a stipulated period.
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33. The consideration of a release of the seized vehicle in justified circumstances
where a registered or bonafide owner of the vehicle prima facie satisfies the
court that the vehicle was involved in the alleged commission of offences
under NDPS Act, without his knowledge or connivance or of his agent,
appears to be well tenable under law.
34. In the case in hand it is not a case of the respondent UT that the investigating
agency or any competent forum has/had initiated the process for disposal of
the seized vehicle.
35. In the backdrop of aforementioned discussion, the impugned order dated
23.03.2025 passed by the court of learned Principal Sessions Judge Poonch is
set aside and the learned trial court is directed to rehear the application of the
petitioner for release of the seized vehicle on merits.
36. Disposed of.
(Mohd Yousuf Wani)
Judge
Jammu
02.05.2025
ayaz
i) Whether order is speaking? Yes.
ii) Whether order is reportable? Yes.
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Vijay Kumar
2025.05.05 18:20
I attest to the accuracy and
integrity of this document
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