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 aPage 1 of 5
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
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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.”
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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
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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.
6. Accordingly, the impugned order dated 12.11.2021 passed
by the learned Additional Sessions Judge, Padampur in Special
G.R. Case No.35 of 2021 is set aside. The petitioner is granted
liberty to move appropriate application before the learned trial
Court for reconsideration of the prayer for release of the vehicle in
subject.
7. With this observation, the CRLMC is disposed of.
(S.S. Mishra)
Judge
Swarna
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 10-Mar-2025 12:29:35
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