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GAHC010051052024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./89/2024
MD SHUMEJ ALI
S/O NAUSAD ALI, R/O VILL- RANGESWARI PAM, P.S.-NAGARBERA, P.O.-
TUPAMARI, DIST- KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. B CHOWDHURY
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
28.03.2024
Heard Mr. B. Chowdhury, learned counsel for the petitioner. Also heard Mr. D.
Das, learned Additional Public Prosecutor for the State respondent.
2. This is an application filed under Sections 397/401/482 of the Code of Criminal
Procedure, 1973 read with Sections 451/457 of Cr. P. C., praying for setting aside and
quashing of the impugned order dated 25.01.2024 passed by the learned Special
Judge, NDPS, Karbi Anglong, Diphu in Dillai P.S. Case No.65/2023 corresponding to
G.R. Case No. 340/2023 registered under Sections 21(b)/29 of NDPS Act, 1985.
3. I have received the Status Report along with the Case Diary and I have perused
the same.
4. It is submitted by the learned counsel for the petitioner, Mr. Chowdhury that the
present petitioner is the registered owner of the vehicle which was seized in
connection with Dillai P.S. Case No.65/2023, wherein, it has been alleged that 233.03
grams of heroin was recovered from 20 (twenty) Nos. of soap boxes from the said
vehicle. He also submitted that the petitioner being the owner, entrusted his vehicle to
the driver on verbal contractual basis and the said driver was given the authority to
carry the passengers at his ends with a condition to give him a sum of Rs.18,000/-
(Rupees eighteen thousand) only on each month. He further submits that the
petitioner was not aware about carrying of any contraband in his vehicle which was
kept concealed inside the front side rear cover of the seized vehicle. He also
approached before the investigating officer and produced all the relevant documents
to proof his ownership, but, the police did not release his vehicle. Hence, he
subsequently approached before the learned Special Judge, NDPS, Karbi Anglong, with
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a prayer for zimma of the seized vehicle bearing a registration No. AS-01-FE-7366
(Maruti Alto Car) to the petitioner, but, the same has been rejected vide order dated
25.01.2024.
5. Mr. Chowdhury, learned counsel for the petitioner further submits that the
vehicle is in custody of police since last 4(four) months and thus, he is suffering from
a great financial loss. and accordingly, he filed the present petition praying for zimma
of the said seized vehicle by setting aside and quashing of the impugned order dated
25.01.2024 passed by the learned Special Judge, NDPS, Karbi Anglong in connection
with Dillai P.S. Case No.65/2023 corresponding to G. R. Case No. 340/2023 registered
under Section 21(b)/29 of NDPS Act.
6. In addition to his submission, he relies on the decision passed by the Hon’ble
Apex Court reported in 2002 (10) SCC 283 (Sunderbhai Ambalal Desai).
7. Further, he submitted that the petitioner being the local person and permanent
resident of Kamrup District, Assam under Nagarbera Police Station is ready and willing
to abide by any terms and conditions to be imposed on him while releasing the seized
vehicle.
8. In this context, Mr. Das, learned Additional Public Prosecutor has submitted that
from the seized vehicle some illegal contraband i.e. heroin was recovered weighing
around 233.03 grams which was kept concealed inside the front side rear cover of the
vehicle. And, as per the report of the IO, the petitioner never approached before
concerned IO with the original documents to proof his ownership of the seized vehicle.
More so, the IO has already made a prayer before the learned Special Judge, NDPS,
Karbi Anglong to pass the order to confiscate the seized vehicle. He further submits
that if, in such a situation, the vehicle is release on zimma, there is a probability of
using the said vehicle to commit similar kind of offence, cannot be outrightly rejected.
Accordingly, the learned Additional Public Prosecutor raised objection in giving zimma
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of the seized vehicle to the present petitioner.
9. On the other hand, Mr. Chowdhury, learned counsel for the petitioner has
submitted that as per Section 60 of NDPS Act, the concerned authority has the power
for confiscation, unless it is proved by the owner that it was used without his
knowledge or it was not committed in connivance of the owner. He also submits that
as per Section 63 of NDPS Act, the confiscation proceeding can be drawn up only at
the stage of trial or after disposal of the case, if it is required. He further submits that
the contraband was alleged to have been recovered from the possession of the driver
of the vehicle and thus, there is nothing in the record that the contraband was carried
in connivance with the present petitioner. Rather, he was not aware about carrying of
any illegal substances in his vehicle as he entrusted his vehicle to the driver. Further,
he also submitted that the petitioner is ready and willing to abide by any terms and
conditions, if to be imposed on him while releasing the seized vehicle and he is also
ready to produce the vehicle as and when required for the interest of further
investigation or at the time of trial.
10. After hearing the submissions made by the learned counsels for both sides, I
have perused the Case Diary as well as the report furnished by the IO. It is seen that
the present petitioner produced some of photo copy of the document in support of his
plea to prove his ownership. Further, it is seen that there is no mention in the report
that as to whether any secret chamber were prepared in the vehicle to carry
contraband or concealed contraband inside the secret chamber etc. Further, it is also
seen from the report of the IO, that there is no mention in regards to the involvement
of the present petitioner to come to a conclusion that the suspected heroin was
allegedly carried in connivance with the present petitioner. The materials in the Case
Diary also do not specifically mentioned about any involvement of the present
petitioner in regards to carrying of the contraband in connivance of present petitioner
in his vehicle.
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11. As per Sub-Section 3 of Section 60 of NDPS Act, the animal and conveyance
used in carrying narcotics is liable for confiscation unless the owner of animal or
conveyance has to proved that it was used without his knowledge. For ready reference
Section 60(3) of NDPS read as under:-
(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 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.”
12. Further from the report of the IO, it is seen that an application has been
submitted before the learned Special Judge, NDPS, Karbi Anglong to pass the order for
confiscation of the seized vehicle, but before passing any order of confiscation
proceeding, it is necessary to hear the person who claim his right over the animal or
conveyance, as per proviso of Section 63 of NDPS Act. Further, it is seen that the
learned Special Judge, NDPS, Karbi Anglong had passed the order by rejecting the
prayer for zimma only on the basis of the report submitted the IO, without passing
any detail order in that regard, as to why, the further custody of the vehicle is required
by the IO for the purpose of further investigation.
13. Thus, considering the entire facts and circumstances of the case, I find that
interference of this Court is requires so as to secure the ends of justice.
14. Accordingly, the impugned order dated 25.01.2024 passed by the learned
Special Judge, NDPS, Karbi Anglong Diphu in connection with Dillai P.S. Case
No.65/2023 is hereby set aside and quashed. It is provided that on execution of a
bond of Rs. 2(two) lakhs and on furnishing 2 (two) solvent sureties of like amount to
the satisfaction of learned Special Judge, NDPS, Karbi Anglong, the seized vehicle shall
be released in the interim custody of the petitioner within a week from today. The
petitioner has to produce all relevant documents and necessary bonds before the
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learned Court below. Further, the learned Special Judge, NDPS, Karbi Anglong Diphu is
hereby asked to hear the matter of confiscation in presence of the present petitioner
while passing any order and further the petitioner is directed to produce the vehicle
before the concerned Court or IO, as and when it is required and shall not dispose the
same till disposal of the case.
15. In terms of above, this criminal revision petition stands disposed of.
JUDGE
Comparing Assistant