No Bar For Interim Release Of Vehicle Seized Under NDPS Act Pending Investigation/Trial: Orissa High Court

The Orissa High Court has held that there is no bar either under the Code of Criminal Procedure ('CrPC') or the Narcotic Drugs and Psychotropic Substances Act ('NDPS Act') for interim release of vehicles seized for commission of offences under the latter Act and thus, those can be released during the pendency of investigation/trial by putting appropriate conditions.While clarifying the position of law, the Division Bench of Chief Justice Chakradhari Sharan Singh (now retired) and Justice Savitri Ratho held –“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.”Case BackgroundWhile hearing the batch of criminal revisions filed challenging orders of the trial Courts in rejecting applications filed under Section 457 of CrPC, for release of vehicles seized in connection with prosecutions under the NDPS Act, a Single Bench of Justice SK Sahoo had prima facie held –“When there is no specific provision in the N.D.P.S. Act which debars applicability of section 457 of Cr.P.C. relating to the release of the vehicles during investigation or pendency of trial rather there are provisions in the N.D.P.S. Act regarding application of Cr.P.C. to proceedings before Special Court so also to the searches and seizures etc. and particularly keeping in view the consequences likely to follow if the vehicles are kept in the police stations after its seizure for a longer period, it cannot be said that in view of the provision under section 52-A of the N.D.P.S. Act, the prayer for release of the vehicle under section 457 of Cr.P.C. no more survives.”However, the Single Judge had remarked that there were inconsistencies in the orders of coordinate Benches regarding legality of interim release of vehicles seized under the NDPS Act. Therefore, by a common order dated 23.08.2022, it had referred the following question for authoritative adjudication by an appropriate Bench/Division Bench –“Whether the provision under section 457 of Cr.P.C. will have no application in a case of release of the vehicle seized under the N.D.P.S. Act during investigation or trial of the case?”ContentionsAmicus Curiae Devashis Panda and Advocate Anupam Dash submitted that there is no bar in the NDPS Act for entertaining applications under Sections 451 (custody and disposal of property pending trial) and 457 (procedure by police upon seizure of property) of the CrPC for interim release of vehicles during pendency of the trial. They also submitted that in many of the cases, owner is not an accused but the vehicles seized during investigation are left lying in open in the Police Station or Excise Office premises, exposed to the vagaries of weather and miscreants. As a result, the vehicles get damaged and by the time of conclusion of the trial and/or the confiscation proceedings, the value of the vehicle goes down substantially. Therefore, they suggested that if the vehicles are released in the interim, pending finalization of the proceedings, imposing suitable conditions, the interest of the State/prosecution as well as the owner will be protected.On the other side, the counsel for the State though did not dispute that there is no prohibition under the NDPS Act for interim release of vehicle, but contended that the legislature has not included any enabling provision for interim release in the NDPS Act. It was his further contention that as there is a provision for confiscation of the vehicle in the NDPS Act, it would be rendered redundant and the trial of the case would be hampered, if the interim release of a vehicle is allowed during pendency of the trial. He also expressed apprehension that vehicles may again be used for similar purposes, which would defeat the very objective of the special legislation.Court's ObservationsAfter referring to the relevant statutory provisions of the CrPC as well as the NDPS Act, the Court referred to a recent judgment of the Supreme Court in Bishwajit Dey v. The State of Assam, wherein a similar issue came up for adjudication.While deciding the question of applicability of Sections 451 and 457, CrPC to seizures of vehicles made under the NDPS Act, the Court propounded mainly four scenarios. 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.“…it is only in the first two scenarios...

No Bar For Interim Release Of Vehicle Seized Under NDPS Act Pending Investigation/Trial: Orissa High Court

Jyoti Prakash Dutta

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