Patna High Court
Smt.Sheelu Jha @ Sheelu Jha vs The State Of Bihar on 8 August, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.9 of 2022
Arising Out of PS. Case No.-464 Year-2021 Thana- AHIYAPUR District- Muzaffarpur
======================================================
Smt.Sheelu Jha @ Sheelu Jha, wife of Vijay Jha, R/O Village- Pirauchha
Kanta Raghopur Katra, P.S.- Gaighat, District- Muzaffarpu.r
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sunil Kumar Pandey, Advocate
For the State : Mr. Ram Anurag Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 08-08-2025
Introduction
The present revision petition has been preferred
against the impugned order dated 30.10.2021 passed by learned
5th Additional Sessions Judge, Muzaffarpur, in N.DP.S. Case
No. 97 of 2021, arising out of Ahiyapur P.S. Case No. 464 of
2021, whereby learned Court below has rejected the application
of the petitioner for releasing the Pulsar 150 CC Motorcycle
bearing Registration No. BR06BT-2837, Engine No. DHYRJD
26606, which was seized in connection with Ahiyapur P.S. Case
No. 464 of 2021 registered on 16.07.2021 for offence
punishable under Section 414 read with Section 34 of the
Indian Penal Code and Section 8/20(b)(ii)(B) of N.D.P.S. Act.
Factual Background
2. As per the prosecution case, the informant/Police
Officer along with other Police Personnel saw three accused
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persons viz. Keshav Kumar, Saurav Kumar and Rahul Kumar
coming on two Motorcycles. But, on seeing the Police, they
tried to flee away, but with the help of Police Personnel, they
were apprehended. Keshav Kumar was riding the Motorcycle in
question bearing Registration No. BR06BT-2837, Engine No.
DHYRJD 26606, whereas co-accused Saurav Kumar and Rahul
Kumar were riding another Motorcycle, but that Motorcycle
was not bearing any Registration number. However, the Chassis
number of that Motorcycle bears MD2A13EY6KCL11042,
Engine No. DKYCKL-81583. On search, 60 sachets of Smack
wrapped in white paper were recovered from the pocket of the
pant which accused Keshav Kumar was wearing, besides one
Mobile. 45 sachets of Smack were also recovered from the
person of the co-accused Saurav Kumar and 35 sachets of
Smack from the person of the co-accused Rahul Kumar. Both
the Motorcycles were also seized including one which is subject
matter of this case. On the basis of the search and seizure, the
FIR was lodged on 16.07.2021 bearing Ahiyapur P.S. Case No.
464 of 2021 against Keshav Kumar, Saurav Kumar and Rahul
Kumar leading to registration of NDPS Case No. 97 of 2021 in
the Special Court of NDPS Act.
3. The petitioner herein/Sheelu Jha moved an
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application before the Special Court, NDPS, under Section 457
Cr.PC to release the vehicle. However, the same was rejected
by learned Special Court, by the impugned order, holding as
follows:-
"From the records of the case, it appears that
the Pulsor 150 CC motorcycle Regn. No. BR06BT-2837,
Engine No. DHYRJD 26606 has been seized in
connection with Ahiyapur P.S. Case no. 464/2021 dated
16.07.2021
U/s 414/34 of I.P.C. and U/s 8/20(b)(ii)(B)
ND.P.S. Act. Keshav Kumar S/o Vijay Jha has been
apprehended with the said motorcycle when he was trying
to escape and from him 60 sachet of smack has been
recovered
Reports have been called from D.T.O.,
concerned P.S. and D.M. Muzaffarpur in this regard.
From the report of D.TO. it appears that the motorcycle
bearing registration No. BR06BT-2837 has been
registered in name of Sheelu Jha W/o Vijay Jha, having
chasis No. MD2411CY9JRD01756, Engine No.
DHYRJD266606. Same and similar report has also been
submitted from the concerned P.S. By letter No. 2716
dated 14.09.2021. It has been communicated by the office
of Collector, Muzaffarpur that proposal of forfeiture of
aforesaid motorcycle BR06BT-2837 has yet not received
by him from S.S.P, Muzaffarpur/concerned P.S.
It has not been disclosed by the petitioner
about the source of income by which the motorcycle in
question has been purchased. It appears from the FIR that
it was being used as conveyance in dealing with smack.
Considering the aforesaid facts, 1 am not
inclined to release the motorcycle Regn. No. BR06BT-
2837. Hence, petition dated 02.08.2021 preferred by Smt.
Sheelu Jha stands rejected.”
4. I heard learned counsel for the petitioner and
learned APP for the State.
Submissions on behalf of the Petitioner
5. Learned counsel for the petitioner submits that the
petitioner is innocent and no way involved in the alleged
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offence. She is not even accused in the case. He further submits
that in the alleged facts and circumstances, the vehicle in
question could not be held to have been used in the commission
of the alleged offence. The contraband, 60 sachets of Smack,
was recovered from the person of the accused Keshav Kumar
i.e. from the pocket of the pant, the accused Keshav Kumar was
wearing. It is not a case of the prosecution that the contraband
was concealed in the Motorcycle. Hence, the Motorcycle could
not be held to have used in conveyance of the contraband.
Hence, the vehicle was no way liable to be seized, let alone
confiscation. He also submits that the petitioner is a bona fide
owner of the vehicle and admittedly, she is registered owner of
the vehicle.
6. Hence, in view of learned counsel for the
petitioner, the impugned order is not sustainable in the eye of
law. The petitioner is entitled to get interim custody of the
vehicle during pendency of the trial before the Special Court.
Submissions on behalf of the State
7. However, learned APP for the State defends the
impugned order submitting that the vehicle in question has been
seized for offence committed under the NDPS Act and under
the NDPS Act, there is no provision for interim release of the
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vehicle and provisions of the Criminal Procedure Code
regarding release of the vehicle to interim custody of the owner
of the vehicle not applicable.
8. He also submits that the vehicle in question is also
liable to confiscation and hence, it cannot be released to the
petitioner, even if she is registered owner of the vehicle.
Consideration
9. I considered the submissions advanced by both the
parties and perused the relevant materials on record.
10. Before I proceed, it would be desirable to discuss
the relevant law regarding seizure, confiscation and disposal of
the vehicle involved in the commission of the offence under
NDPS Act and jurisdiction of the Special Court to release the
vehicle to interim custody of the bonafide owner during trial or
inquiry.
Seizure and Confiscation of Vehicles under the
NDPS Act
11. Section 60 of the NDPS Act deals with liability
of illicit drugs, substances, plants, articles and conveyances to
confiscation. Sub-Section-3 of Section 60 provides that 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
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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. In other words, if the
owner of the vehicle/conveyance proves that his vehicle was
used in the commission of the offence without his knowledge or
connivance and he has taken all reasonable precautions against
such use, the conveyance cannot be confiscated despite it being
used in the commission of the alleged offence under the NDPS
Act. Section 60 the NDPS Act read as follows:-
“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 the
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 2[or controlled
substances], or any article liable to confiscation under
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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.”
(Emphasis supplied)
12. The procedure in making confiscation has been
provided in Section 63 of the NDPS Act. As per Sub-
Section 1 of Section 63 of the Act, irrespective of conviction,
acquittal or discharge of the accused, the Special Court is
required to decide whether any article or thing seized under
this Act is liable to confiscation. If the court decides that the
article is so liable, it may order confiscation accordingly. It
implies that decision regarding confiscation of any article can
be taken only by the Special Court and only after conviction,
acquittal or discharge.
13. Sub-Section 2 of Section 63 of the NDPS Act
provides 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. It implies that if within one month of the
seizure of an article or thing, if any body claims that he is a
bona fide owner and he has right to possess the article or
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thing, the court is bound to hear him before deciding the
liability of the article or thing to confiscation.
14. Section 63 of the NDPS Act reads as follows-
“Section 63. Procedure in making confiscations.–
(1) In the trial of offences under this Act,
whether the accused is convicted or acquitted or
discharged, the court shall decide whether any
article or thing seized under this Act is liable to
confiscation under section 60 or section 61 or
section 62 and, if it decides that the article is so
liable, it may order confiscation accordingly.
(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, [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.”
(Emphasis supplied)
15. From the conjoint reading of Sections 60 and
63 of the NDPS Act, it emerges that it is the Special court
established under NDPS Act which decides liability of any
article or thing including vehicle to confiscation and not
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police or any authority like Drugs Disposal Committee
constituted under Section 52A of the NDPS Act. It also
emerges that when any person claims any right to the vehicle
seized, the vehicle is liable to confiscation only when its
owner fails to prove that it was used in the commission of the
offence without his knowledge and connivance and he had
taken all precautions against such use.
Procedure for Disposal of Confiscated Vehicles
16. The procedure of disposal has been provided in
Section 52A of the NDPS Act and the notifications issued by
the Central Government under it. This Section has been
inserted in 1989 providing for disposal of contraband drugs.
However, in 2014, conveyance was also added in this
Section. Section 52A of the NDPS Act reads as follows:
“52A. Disposal of seized narcotic drugs and
psychotropic substances.
(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 after following the procedure
hereinafter specified.
(2) Where any narcotic drugs, psychotropic
substances, controlled substances or conveyances has
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nearest police station or to the officer empowered under
section 53, the officer referred to in subsection (1) shall
prepare an inventory of such narcotic drugs, psychotropic
substances, controlled substances or conveyances
containing such details relating to their description,
quality, quantity, mode of packing, marks, numbers or
such other identifying particulars of the narcotic drugs,
psychotropic substances, controlled substances or
conveyances or the packing in which they are packed,
country of origin and other particulars as the officer
referred to in subsection (1) may consider relevant to the
identity of the narcotic drugs, psychotropic substances,
controlled substances or conveyances in any proceedings
under this Act and make an application, to any Magistrate
for the purpose of
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such Magistrate,
photographs of such drugs or substances or conveyances
and certifying such photographs as true; or
(c) allowing to draw representative samples of such
drugs or substances, in the presence of such Magistrate
and certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under subsection
(2), the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an
offence under this Act, shall treat the inventory, the
photographs of narcotic drugs, psychotropic substances,
controlled substances or conveyances and any list of
samples drawn under subsection (2) and certified by the
Magistrate, as primary evidence in respect of such
offence.”
17. As per Section 52 A, Central Government is
authorized to determine the procedure to dispose of
contraband drugs and conveyances and accordingly, the
Central Government has issued four Standing Orders,
namely, (1) 1/88 dated 15.03.1988, (2) 2/88 dated 11.04.1988
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and (3) 1/89 dated 13.06.1989 and Notifications have also
been issued by the Central Government, namely, (1)
Notification dated 10.05.2007, Ministry of Finance, (2)
Notification dated 26.03.2013, Ministry of Finance, (3)
Notification dated 16.01.2015, Ministry of Finance and (4)
Notification dated 23.12.2022, issued by Ministry of Finance
(Department of Revenue).
18. However, it is relevant to note that the Standing
Order 1/89 dated 13.06.1989 was superseded by Notification
dated 10.05.2007. Notification dated 10.05.2007 was
superseded by Notification dated 16.01.2015. Even Notification
dated 16.01.2015 has been superseded by a Notification dated
23.12.2022. As such, only Notification dated 23.12.2022 is in
operation.
19. From the aforesaid provisions of Standing
Order bearing no. 1/88 and Standing Order 2/88, it transpires
that approval of Special Court was required for disposal of
contraband drugs or conveyance. However, as per
Notifications dated 16.01.2015 or 23.12.2022, there is no
such requirement for disposal of contraband drugs or
conveyances. Only the prepared inventory of the contraband
drugs and conveyance is required to be certified by any
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Magistrate before disposal. In other words, as per the
Notification dated 16.01.2015 and 23.12.2022, pre-trial
disposal of contraband drugs and conveyances has been
provided without approval of the Special Court. However,
such provision of the Notification cannot be read in isolation.
It has to be read with Sections 60 and Section 63 of the
NDPS Act. As per Section 60(3), any animal or conveyance
is liable to confiscation only if the owner thereof fails to
prove that it was used without his knowledge or connivance
and he had not taken all reasonable precautions against such
use. Sub-Section 2 of Section 63 also provides that no order
of confiscation or article or thing shall be made until the
expiry of one month from the date of seizure or without
hearing any person who made claim any right thereto and the
evidence if any which he produces in respect of his claim.
20. As such, as per conjoint reading of Sections 60
and 63 of the NDPS Act and the Notification dated
23.12.2022, it transpires that pre-trial disposal of
conveyance/vehicles is possible under Notification dated
23.12.2022 only if no one claims right to possession and
interim release of vehicle under the provision of Section 60
and 63 of the NDPS Act. If anybody claims for release of the
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vehicle, the Special Court has to hear him to decide liability
of the vehicle to confiscation and if it is proved by the
claimant that he has right to possess the vehicle and it has not
been used in commission of the offence with his knowledge
or connivance and he had taken all precautions against such
use, the vehicle cannot be confiscated and disposed of by the
Drug Disposal Committee. This position of law is not
affected even by the judgment of Hon’ble Supreme Court in
Mohan Lal v. Union of India as reported in (2016) 3 SCC
379 dealing with handling and disposal of seized Narcotic
Drugs and Psychotropic Substance, giving directions to
prevent re-circulation of seized contraband drugs into the
system.
21. The aforesaid discussions clearly shows that
in case of any article, thing or conveyance/vehicle is
claimed by any person as provided under Sections 60 and
63 of the NDPS Act, the Special Court is duty bound to
decide the liability of that thing, article or vehicles to
confiscation and only if it is decided by the Special Court
that such article, thing or vehicle is liable to confiscation,
the Drug Disposal Committee can dispose it by sale or
auction or otherwise.
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Jurisdiction of Special Court to release vehicle to
interim custody of Bonafide owner
(Applicability of Sections 451 and 457 Cr.PC)
22. However, there is no provision under the NDPS
Act for passing any order by the Special Court for interim
release of vehicles/articles during pendency of the trial or
inquiry in regard to the liability of the vehicle to confiscation
before itself. In such a situation, now question is whether
Special Court has any jurisdiction to pass any order to release
vehicle/article to interim custody of the rightful owner or not.
23. Here, Sections 36C of the NDPS Act, becomes
relevant. It reads as follows-
“Section 36C. Application of Code to
proceedings before a Special Court-Save as
otherwise provided 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 and
for the purposes of the said provisions, the Special
Court shall be deemed to be a Court of Session and the
person conducting a prosecution before a Special
Court, shall be deemed to be a Public Prosecutor.”
24. As per Section 36 C, the provisions of the CrPC
is applicable if it is not inconsistent or contrary to the
provisions of the NDPS Act which is a special enactment.
25. Section 5 of the CrPC also provides that the
provisions of CrPC is applicable in case of special enactments
only if there is such provisions in that special enactment. It
reads as follows-
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“Section 5. Saving- Nothing contained in
this 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.”
26. In such situation, chapter-XXXIV comprising
Section 451 to Section 459 of the Cr.PC, 1973, becomes
applicable to the proceeding before the Special Court
established under NDPS Act.
27. Even in the recent judgment of Bishwajit Dey
v. State of Assam, as reported in (2025) 3 SCC 241, Hon’ble
Supreme Court has clearly held that Special Court has
jurisdiction to release the vehicle to interim custody to his
owner during pendency of the trial under Sections 451 and
457 Cr.PC, which deals with interim custody of case
property. The relevant part of judgment reads as follows:
“26. 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.
27. In the absence of any specific bar under the
NDPS Act and in view of Section 51 of the NDPS Act,
the Court can invoke the general power under Sections
451 and 457CrPC 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.”
28. In Bhola Singh @ Ayush Singh Vs. State of
Patna High Court CR. REV. No.9 of 2022 dt.08-08-2025
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Bihar (2024 SCC OnLine Pat 855) and Md. Hakim Khan
@ Hakim Khan Vs. State of Bihar (2024 SCC OnLine Pat
5977), this Court, after discussing relevant provisions of
NDPS Act and the judicial precedents, has also held that
during pendency of the trial or inquiry in regard to liablity of
the vehicle to confiscation, the Special Court is empowered to
release the vehicle to interim custody of the rightful owner,
subject to required conditions. The following cases may be
also referred to wherein similar view has been expressed by
different High Courts –
i. Baldhir vs. State of UP, 2025 SCC Online All 1234
ii. Sudharsan vs. State, MANU/TN/1328/2024
iii. Rathnamma Vs. State of Karnataka
(CRL. P No. 3571 of 2021, decided on 17.06.2021
by Karnataka High Court)
iv. Tikeshwar Singh Vs. State of Chhattisgarh
(2020 SCC Online Chh 2473)
v. Tej Singh Vs. State of Haryana (2020
SCC OnLine P& H 4679)
vi. Gurbinder Singh Vs. State of Punjab
(2017 SCC OnLine P&H 16026)
vii. Abhijeet Kumar Vs. State of Uttarakhand
(2019 SCC OnLine Utt 265)
viii. Waish Ahmed Vs. The State of West Bengal
(MANU/WB/0073/2019)
ix. Aniul Haque Vs. State of West Bengal
( 2015 SCC ONLINE CAL 1612)
x. Tridip Mitra Vs. State of West Bengal
(2005 SCC OnLine Cal 551)
xi. Manoj Kumar Pandey Vs. State of M.P.
(2019 SCC OnLine MP 2315)
xii. Sri Sankar Das Vs. The State of Tripura
(Crl. Petn No. 9 of 2018 decided on 16.03. 2018)
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Extent and Scope of jurisdiction under Sections
451 ad 457 Cr.PC
29. The celebrated judgment of Sunderbhai Ambalal
Desai v. State of Gujarat, [(2002) 10 SCC 283] is a leading
case on the subject and still holding the field. In this case,
Hon’ble Supreme Court has explained the extent and scope of
jurisdiction under Section 451 Cr.PC and how it should be
exercised. The relevant parts of the judgment are as follows:
” 5. Section 451 clearly empowers the court to pass
appropriate orders with regard to such property, such as:
(1) for the proper custody pending conclusion of the
inquiry or trial;
(2) to order it to be sold or otherwise disposed of,
after recording such evidence as it thinks necessary;
(3) if the property is subject to speedy and natural
decay, to dispose of the same.
…………………………………………………….
7. In our view, the powers under Section 451 CrPC
should be exercised expeditiously and judiciously. It
would serve various purposes, namely:
1. owner of the article would not suffer because of its
remaining unused or by its misappropriation;
2. court or the police would not be required to keep
the article in safe custody;
3. if the proper panchnama before handing over
possession of the 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
4. this jurisdiction of the court to record evidence
should be exercised promptly so that there may not be
further chance of tampering with the articles.
……………………………………………….
10. To avoid such a situation, in our view, powers
under Section 451 CrPC should be exercised promptly
and at the earliest.
Valuable articles and currency notes
11. With regard to valuable articles, such as, golden
or silver ornaments or articles studded with precious
stones, it is submitted that it is of no use to keep such
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our view, this submission requires to be accepted. In such
cases, the Magistrate should pass appropriate orders as
contemplated under Section 451 CrPC at the earliest.
12. For this purpose, if material on record indicates
that such articles belong to the complainant at whose
house theft, robbery or dacoity has taken place, then
seized articles be handed over to the complainant after:
(1) preparing detailed proper panchnama of such
articles;
(2) taking photographs of such articles and a bond
that such articles would be produced if required at the
time of trial; and
(3) after taking proper security.
13. For this purpose, the court may follow the
procedure of recording such evidence, as it thinks
necessary, as provided under Section 451 CrPC. The bond
and security should be taken so as to prevent the evidence
being lost, altered or destroyed. The court should see that
photographs of such articles are attested or countersigned
by the complainant, accused as well as by the person to
whom the custody is handed over. Still however, it would
be the function of the court under Section 451 CrPC to
impose any other appropriate condition.
14. In case, where such articles are not handed over
either to the complainant or to the person from whom
such articles are seized or to its claimant, then the court
may direct that such articles be kept in bank lockers.
Similarly, if articles are required to be kept in police
custody, it would be open to the SHO after preparing
proper panchnama to keep such articles in a bank locker.
In any case, such articles should be produced before the
Magistrate within a week of their seizure. If required, the
court may direct that such articles be handed back to the
investigating officer for further investigation and
identification. However, in no set of circumstances, the
investigating officer should keep such articles in custody
for a longer period for the purposes of investigation and
identification. For currency notes, similar procedure can
be followed.
……………………………………………….
17. In our view, whatever be the situation, it is of no
use to keep such seized vehicles at the police stations for
a long period. It is for the Magistrate to pass appropriate
orders immediately by taking appropriate bond and
guarantee as well as security for return of the said
vehicles, if required at any point of time. This can be
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done pending hearing of applications for return of such
vehicles.
18. In case where the vehicle is not claimed by the
accused, owner, or the insurance company or by a third
person, then such vehicle may be ordered to be auctioned
by the court. If the said vehicle is insured with the
insurance company then the insurance company be
informed by the court to take possession of the vehicle
which is not claimed by the owner or a third person. If the
insurance company fails to take possession, the vehicles
may be sold as per the direction of the court. The court
would pass such order within a period of six months from
the date of production of the said vehicle before the court.
In any case, before handing over possession of such
vehicles, appropriate photographs of the said vehicle
should be taken and detailed panchnama should be
prepared.
19. For articles such as seized liquor also, prompt
action should be taken in disposing of it after preparing
necessary panchnama. If sample is required to be taken,
sample may be kept properly after sending it to the
Chemical Analyser, if required. But in no case, large
quantity of liquor should be stored at the police station.
No purpose is served by such storing.
20. Similarly for the narcotic drugs also, for its
identification, procedure under Section 451 CrPC should
be followed of recording evidence and disposal. Its
identity could be on the basis of evidence recorded by the
Magistrate. Samples also should be sent immediately to
the Chemical Analyser so that subsequently, a contention
may not be raised that the article which was seized was
not the same.
21. However, these powers are to be exercised by
the Magistrate concerned. We hope and trust that the
Magistrate concerned would take immediate action for
seeing that powers under Section 451 CrPC are properly
and promptly exercised and articles are not kept for a long
time at the police station, in any case, for not more than
fifteen days to one month. This object can also be
achieved if there is proper supervision by the Registry of
the High Court concerned in seeing that the rules framed
by the High Court with regard to such articles are
implemented properly.
30. In Bishwajit Dey case (supra), Hon’ble
Supreme Court has also held that if there is no allegation
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made against the owner of the vehicle or his agent, the
vehicle should normally be released to his interim custody,
subject to furnishing 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 finally opines that vehicle needs to be
confiscated. The relevant part of the judgment reads as
follows:-
“Broadly speaking there are four scenarios
33. 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.
34. 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
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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.
35. 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 Sainabav.State
of Kerala [Sainaba v. State of Kerala, (2024) 13 SCC 382
has released the vehicle.”
(Emphasis supplied)
Present Case
31. Coming to the case on hand, I find that
undisputedly, the petitioner herein is the registered owner of
the vehicle, but she is not an accused in the subject FIR. It is
Keshav Kumar, who was riding the motorcycle, is accused on
account of recovery of 60 sachet of Smack from the pant which
he was wearing. It is not the case of the prosecution that the
contraband was concealed in any part of the vehicle. In such
facts and circumstances, by no imagination, the vehicle could
be held to have been used in transportation/conveyance of the
contraband.
32. The word “use” which has come in Section 60(3)
of the NDPS Act, cannot be given liberal or expansive meaning.
It has to be interpreted strictly as it has penal consequences.
Kerala High Court in Wilson C.C. Vs. State of Kerala [2022
LiveLaw (Ker) 627] has expressed similar view, wherein a
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person was driving a vehicle and 0.06 grams of LSD Stamp was
recovered from wallet kept in his pocket. Kerala High Court
held that it could not be said that the vehicle was used for
conveyance of the contraband. The vehicle was not held subject
to confiscation.
33. In Thausif Ahammad Bengre Vs. State of
Kerala [MANU/KE/0426/2018], the vehicle was being driven
by the driver and 40 grams Ganja was recovered from his
possession. In that situation, Kerala High Court again held that
it is really fallacious to contend that the vehicle was used for
carrying the contraband.
34. Similar view has been expressed by a Division
Bench of this Court, of which I was a part, in the context of
Bihar Prohibition and Excise Act, 2016 in Binit Kumar Vs.
State of Bihar (2024 SCC OnLine Pat 850), wherein 180 ml.
liquor was recovered from the pant of the petitioner and it was
held that Motorcycle could not be held to have been used in
carrying the illicit liquor, which was recovered from the person
of the petitioner. At most, the accused could be prosecuted for
illegal possession of the contraband, but vehicle was not liable
to be seized or confiscated. Similar view has been also
expressed by the same Division Bench in Sunaina @ Suneina
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Vs. The State of Bihar and Ors. (2024 SCC OnLine Pat 851).
35. As such, in the case on hand, the seizure of the
vehicle in question was not permissible under the N.D.P.S. Act.
If such seizure is allowed, it may lead to absurd situations,
requiring even aircraft, train or any public transport to be seized
and confiscated if a passenger therein is found to be carrying
some contraband on his person without the knowledge of the
owner of the carrier. There can be never such object of the
N.D.P.S. Act. The provision for confiscation of vehicles under
the N.D.P.S. Act has been made to discourage the owner of any
vehicle from using his vehicle or permitting it to be used with
his consent or connivance in illegal trade of contraband under
the N.D.P.S. Act. However, such purpose may not be served if
any vehicle is confiscated, which was neither used by the owner
or allowed by him with consent or connivance to transport the
contraband under the N.D.P.S. Act. It may only lead to
harassment of the innocent owners and wastage of national
resources. The seized vehicles generally turn into waste/junk in
course of time on account of corrosion and decay.
36. As such, the seizure of the vehicle in question was
not only arbitrary, but also violative of Article 300A of the
Constitution. Had the petitioner moved this Court invoking writ
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jurisdiction, the petitioner could have got not only
unconditional/absolute custody of the vehicle, but even
compensation on account of violation of his constitutional
rights to hold property, which could not be deprived of except
as per the procedure as established by law, as Division Bench of
this Court, of which I was a part, has held in the cases of Binit
Kumar Vs. State of Bihar (2024 SCC OnLine Pat 850) and
Sunaina @ Suneina Vs. The State of Bihar and Ors. (2024
SCC OnLine Pat 851).
37. Moreover, I have already found that even in case
of use of vehicle in transportation of contraband under the
N.D.P.S. Act, the bonafide owner is entitled to get interim
custody of the vehicle during trial or inquiry if he claims right
to the vehicle before the Special Court. The Drugs Disposal
Committee has no jurisdiction to dispose of such vehicle
forthwith by way of sale or auction just after seizure of the
vehicle in view of the claim of the owner for return of the
vehicle. Only after Special Court holds after conclusion of the
trial that the vehicle is liable to confiscation, the vehicle could
be disposed of by the Drugs Disposal Committee by way of
sale/auction under Section 52 of the N.D.P.S. Act read with
notification dated 23.12.2022 issued by the Central
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Government.
Order
38. Hence, I find that there was no reason to the
Special Court, NDPS to reject the application of the petitioner
for release of the vehicle in question to her interim custody,
subject to the required conditions to ensure production of
vehicle to the Court as and when required during pendency of
the Trial and Confiscation Proceedings. Even, the ground given
by learned Special Court that the Petitioner had not disclosed
the source of income by which the vehicle was purchased is not
sustainable. The ownership of the vehicle is not disputed, nor
anybody else has been claiming to the custody of the vehicle as
bonafide owner.
39. Hence, the impugned order is set aside and the
Motorcycle in question is directed to be released to the interim
custody of the Petitioner, subject to the following conditions:
(i) The petitioner shall furnish bank guarantee of
rupees twenty five thousand before the Special Court.
(ii) The petitioner shall produce the seized vehicle
before the Special Court as and when called for during
investigation, inquiry or the trial and also during the
confiscation proceeding if any such proceeding is initiated.
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(iii) The petitioner shall not alienate the seized
vehicle or change its nature and character during the pendency
of the case.
(iv) The seized vehicle shall not be used for the
commission of any offence.
(v) The vehicle, before its release, should be properly
photographed and the photograph will be made part of record.
Engine number and chassis number of the motorcycle should
be also noted for future reference.
40. The petition stands allowed, accordingly. Pending
applications, if any, stand disposed of. Send a copy of this
judgment to the Court below for information and needful.
41. Before I part with, it is clarified that the
Petitioner is still at liberty to file appropriate writ petition for
unconditional/absolute custody of his vehicle and
compensation for arbitrary seizure of the vehicle and violation
of Article 300A of the Constitution of India.
(Jitendra Kumar, J.)
Ravishankar/
Shoaib/
S. Ali/Chandan
AFR/NAFR AFR
CAV DATE 04.08.2025
Uploading Date 11.08.2025
Transmission Date 11.08.2025