Judgement & Order (Cav)

1. Heard Mr. S.C. Biswas, learned for the petitioner. Also heard Mr. D. Borah, learned Sr. SC, DRI.

2. This revision petition is directed against the order dated 06.062025 passed in Departmental Case No.07/CL/NDPS/DRI/SIL/2024-2025 rejecting the Zimma of the said vehicle by the learned Sessions/Special Judge – Cachar, Silchar.

3. The facts of the case may be briefly stated:-

That, the Directorate of Revenue Intelligence (DRI), Silchar Sub-Regional Unit, Silchar, acting on specific intelligence shared by DRI Guwahati Zonal Unit, had intercepted the impugned Mahindra TUV300 T8 MHA vehicle bearing Registration No. AS 02 Z2315 at approximately 20:45 hours on 03.02.2025 at the Ramnagar area of Cachar District of Assam when the vehicle was on its way to Silchar from Aizawl, assisted by Assam Rifles Personnel and in presence of independent witnesses. At the time of interception, the said vehicle was found to be proceeding towards Silchar from Aizwal.

That, rummaging of the said vehicle conducted under videography in the presence of the driver, Panchas and Assam Rifles personnel had resulted in recovery of 9 rectangular-sized packets from the body cavity of the said vehicle, out of which 8 packets were found to contain methamphetamine tablets, and one packet contained a 9 mm Sig Sauer Brand Pistol along with two magazines and 30 rounds of live 9mm ammunition and a case registered vide Seizure Case No. 07/CL/NDPS/DRI/SIL/2024-25 dated 04.02.2025.

4. In course of the recording of his statement under Section 67 of the NDPS Act, the said driver stated that he was introduced to the present petitioner by the person name Lelen, who deals with the supply of contraband goods to the different parts of the North East. Lelen introduced the said driver to the present petitioner of Churachandpur area who is the owner of the vehicle involved in the present case and it was told to him that the vehicle loaded with contraband goods under deep concealment would be handed over him on the morning of 03.02.2025 for departure at Barak valley and accordingly, the same was handed over.

5. Subsequently, the vehicle was apprehended by the DRI Official as aforesaid. The prayer for Zimma of the vehicle was rejected by the learned court below. Hence this revision.

6. I have heard learned counsel for the petitioner as well as learned counsel representing the DRI.

7. Mr. S. C. Biswas, learned counsel for the petitioner submitted that the law in this regard is quite settled and it was held way back by the Apex Court in Sunderbhai Ambalal Desai Vs State of Gujarat reported in (2002) 10 SCC 283 that there is no reason to keep such seized vehicles at the police station for a long period and the Magistrate should pass an appropriate orders by taking appropriate bond and guarantee as well as security for return of the said vehicle if required at any point of time. The learned counsel has also referred to a decision of the High Court of Madhya Pradesh at Jabalpur wherein it was held as follows:-

                   “6. I have heard the arguments advanced by the learned counsel for the parties and also perused the record. From perusal of the impugned order it is clear that the court below has rejected the application of the applicant only on the ground that the vehicle, which was seized by the police, was carrying 146 Kgs. of Ganja. It was more than the commercial quantity and it was kept in a special chamber tactfully prepared in the offending vehicle so as to hide the narcotic substance and that the said vehicle would be required during the course of trial, because if chamber is removed from the vehicle, the material evidence would be destroyed. However, I am not satisfied with the reasoning given by the court below while rejecting the application because there are other alternative ways available to keep the evidence safe and alive such as, making video and taking still photographs of the the vehicle from every angle and keeping the same safe in a device like pen drive or hard-disk; the owner of the vehicle can also be directed not to tamper or remove the said chamber from the vehicle and as and when required by the court to examine the vehicle physically, the owner can be directed to produce the same during the trial. As such only on the aforesaid grounds, the vehicle cannot be allowed to lie idle in an open place of police station because allowing the said vehicle lying for a long time unattended in the police station would expose it to sun and rain rendering it to natural wear and tear and deterioration.

                   9. Accordingly, this revision is allowed. The order dated 21.03.2025 passed by the court below in SC NDPS/7/2025 is hereby set aside. The application submitted by the applicant under Section 497 of BNSS, 2023 is allowed. The trial court is directed to release the vehicle bearing Registration No.

                   HR61E1347 on Supurdgi after verifying its ownership. It is further directed that while releasing the vehicle, the trial court shall also impose adequate conditions as it deems fit, proper and necessary in the facts and circumstances of the present case.”

8. Further, amongst other decisions, the learned counsel has also placed before this Court an order dated 06.10.2021 in Crl. Rev. P. 200/2021 passed by Coordinate Bench of this Court wherein it has been held as follows:-

                   “13. It is to be noted here that the provisions of the Code of Criminal Procedure including sections 451 & 457 have been expressly made applicable by virtue of Section 36-C of the NDPS Act and there is no express bar contained in the NDPS Act for grant of interim custody of the vehicle. There is no proposition of law that once the vehicle is seized for commission of the offence under Section of NDPS Act, the interim custody cannot be allowed, rather it should be disposed of expeditiously and judiciously so that the owner of the vehicle would not suffer because of its remaining unused or by its misappropriation and the Police should be required to keep the vehicle in safe custody. In the case, in hand, the learned Court below, vide the impugned order dated 16.08.2021, rejected the prayer of interim custody of the vehicle, on the ground, that it was used for transporting commercial quantity of contraband.”

9. Countering the aforesaid submissions, the learned counsel representing DRI, submitted with reference to the objection filed by the DRI that the petitioner has been named as an accused in the final report/charge-sheet submitted by the DRI inasmuch as, his involvement clearly revealed on an analysis of the call detail records of the accused persons which shows that they are closely known to each other and had been in constant touch with each other and the call detail records have also been mentioned in the objection submitted by the DRI which was shows as many as 51 calls were made between them in a span of seven days from 28.01.2025 to 03.02.2025. Further, the call details of the present petitioner along with the middle men namely Lelen has also been procured and projected in the objection which clearly indicates towards the conspiracy angle. It is further submitted that the investigation reveals that the petitioner was a conspirator to the crime of illicit trafficking of drugs and arms and had constantly used his vehicle to transport the contraband goods under seizure which is clearly established by the call detail records refereed to an above.

10. The learned counsel has referred to a decision of the Hon’ble Apex Court in Biswajit Dey Vs. State of Assam 2025 INSC 32 as stated below:-

                   “29. 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 thirdparty 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.

                   30. 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 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 is finally of the opinion that the vehicle needs to be confiscated.

                   31. 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.”

11. It is further submitted that since the petitioner has been arrayed as an accused in the present case in the final report/charge-sheet submitted by the DRI, he would come within the second category as outlined by the Apex Court i.e. where the contraband is recovered from the possession of the agent of the owner like driver or cleaner hired by the owner and it has been stated that in such a scenario the vehicle may not be released on superdari till reverse burden of proof is discharged by the accused owner.

12. Accordingly, it is submitted that the prayer for Zimma of the vehicle may be rejected, especially in view of the fact that the contraband was concealed in a specially constructed chamber within the vehicle and it would be necessary for the purpose of the trial to retain the vehicle in the custody of the Investigating Agency. Hence, handing over the same in Zimma would result in the petitioner destroying such evidence and in any case the likelihood thereof cannot be discounted.

13. An Affidavit-in-reply has been submitted by the petitioner wherein it is contended that the call detail records are electronic records and it has been held by the Apex Court in Anvar P.V. Vs P.K Basheer (2014) 10 SCC 473 as also in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorontyal and Anrs. in Civil Appeal No. 20825/20826 of 2017 that such records are admissible in evidence only if accompanied by a certificate in terms of Section 65B of the Evidence Act or Section 63 of BSA 2023 and in their absence the said seizure are cannot be read in evidence at all. It is further stated that the evidentiary value of the seizure list is inherently limited and at best they may indicate that a call was made between two mobile numbers at a particular point of time, but they cannot establish the identity of the speaker, the content of conversation or the purpose for which the call was made. They are at best supporting evidence and cannot be the foundation for a conviction. Furthermore, the statements of the driver recorded under Section 67 of the NDPS Act being statements of co-accused are themselves inadmissible in view of the law as settled by the Supreme Court in various decisions.

14. I have duly considered the rival submissions.

15. The adequacy or inadequacy of the evidence or material available against the present petitioner is matter to be considered by the learned trial Court at the time of consideration of charge or thereafter, if a trial commences against the present petitioner and the fact remains that the petitioner has been arrayed as an accused in the final report/charge-sheet submitted by the DRI under a fact situation where the contraband was recovered from the possession of the agent/driver of the owner of the registered vehicle i.e. the petitioner and in view of the decision of the Apex Court in Biswajit Dey (supra) , the case would come within the second category as indicated above and in such circumstances, it is the guideline laid down by the Apex Court that the vehicle is not to be released on superdari until reverse burden of proof is discharged by the accused owner.

16. Although it has been clarified that the same should not be taken as laying down a rigid formula and it will be open for the trial Courts to take in different view. I see no reason why a different view should be taken in the facts and circumstances of the present case.

17. Furthermore, once the vehicle is released to the custody of the petitioner, the likelihood of the said vehicle being used for similar illegal activities cannot be ruled out and the petitioner being a resident of Manipur, his presence at the trial will also be difficult to secure once the custody of the vehicle is handed over to him which will further delay the trial as against the remaining accused persons.

18. It is also to be noted that the petitioner has not responded to the notices under Section 67 of the NDPS Act issued to him by the DRI.

19. In view of the above, the prayer for zimma is rejected and the revision petition is dismissed.