Page No.# 1/6 GAHC010094942025 2025:GAU-AS:11755 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./166/2025 MASUM CHOUDHURY S/O MD. JAINUL CHOWDHURY R/OVILL-HAWAITAL,SONAI ROAD, P.S. DHOLAI, PIN CODE- 768120 DIST. CACHAR, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:NABAJIT DEKA SI AMINGAON POLICE OUT POST UNDER NORTH GUWAHATI POLICE STATION AMINGAON DIST. KAMRUP ASSA Advocate for the Petitioner : MR. B CHOWDHURY, MR. O FARUK,MR. M. ALOM,MR. S R ISLAM Advocate for the Respondent : PP, ASSAM, Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 01.09.2025 Heard Mr. B. Choudhury, learned counsel appearing for the petitioner. Also heard Mr. Kuldeep Baishya, learned Addl. Public Prosecutor for the State respondents. 2 This Criminal Petition is directed against the impugned order dated 03.04.2025, rejecting the zimma petition of the vehicle of the petitioner passed by the Court of learned Sessions Judge, Kamrup, Amingaon in connection with North Guwahati Police Station Case No. 162/2024 under Section 21 (b)/29 of NDPS Act, 1985. 3. The petitioner submitted that he is the registered owner of the above vehicle and the same was seized by police of North Guwahati P.S on 06.12.2024 in connection with this case and since then the vehicle is lying in the police station campus unattended which may cause damage to the vehicle. The petitioner accordingly prayed to allow him to take zimma of the vehicle. 4. I/O has submitted the report through Officer-In-Charge of North Guwahati P.S. In the report it is submitted that 13 nos. of soap boxes containing suspected heroin were recovered from the secret compartment of the vehicle which was driven by present accused/petitioner Masoom Choudhury along with one Kazi Sanowar Hussain. It is submitted that the petitioner has not produced any documents regarding ownership of the vehicle before the I/O. It is further submitted that requisition has been sent to the DTO office Page No.# 3/6 requesting vehicle owner's details, but till date no response has been received. It is submitted that accused/petitioner Masoom Choudhury is one of the accused in this case and if the vehicle is given in zimma there is possibility of using the vehilce again for the purpose of transporting narcotic drugs. OC North Guwahati P.S accordingly prayed not to grant zimma in the interest of investigation as well as to unearth drugs smuggling. 5. The Ld.Counsel for the petitioner has furnished copy of the registration certificate of vehicle number AS24B2485 which shows Masoom Choudhury,S/O- Joynul Choudhury of post Office-Lailapur, P.S- Dholai, Cachar is the registered owner of the vehicle. 6. It is submitted on behalf of the petitioner that since the investigation of the case is long over, there is no necessity of retaining the vehicle by the Police and the condition of the vehicle is deteriorating with the passage of time and accordingly prays for its release. It is further submitted that almost nine months have lapsed since the passage of the impugned order dated 03.04.2025, rejecting the prayer for zimma of the said vehicle. 7. The learned counsel has relied on the decision of this Court in Criminal Petition No. 999/2023 dated 30.11.2023, and also on the decision of the Hon’ble Supreme Court in Sunder Bhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283, wherein it was observed that by the Hon’ble Apex Court that it is of no use to keep the seized vehicle at the Police Station for a long period and that the object of Section 451 and Section 457 of the Cr.PC is that the owner of the Page No.# 4/6 vehicle should not suffer for it remaining unused or by its misappropriation. 8. In a recent decision of the Hon’ble Supreme Court in Bishwajit Dey Vs. State of Assam 2025 INSC 32; it was observed as follows: ”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 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. 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 Page No.# 5/6 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” 9. In the present case, the owner of the vehicle i.e the petitioner was himself driving the vehicle wherefrom the seized contraband was recovered and therefore, this case is squarely covered by the first category referred to and the Hon’ble Supreme Court has held that in such a scenario, the vehicle may not be released till reverse burden of proof is discharged by the accused owner. 10. However, in the said Judgment, 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 Court to take at different view if the facts of the case so warrant. 11. In the present case, the vehicle has been lying in the custody of Page No.# 6/6 the Police since 06.12.2024 and almost nine months have lapsed and the condition of the said vehicle would also have deteriorated considerably due to disuse and exposure. It is also stated that the vehicle was the source of livelihood of the petitioner. 12. It cannot be disputed that if the vehicle is allowed to remain in its present state, it will be of little value at the end of the Trial in the event that the vehicle is not found liable for confiscation. The investigation was not complete when the impugned order was passed but now the charge- sheet has been submitted. Therefore, the Court is of the considered view that in the facts of the present case, it would be in the interest of justice to hand over custody of the vehicle to the petitioner for the remainder of the Trial. 13. Accordingly, the impugned order dated 03.04.2025 is set aside. 14. The learned Trial Court is directed to pass appropriate orders imposing necessary conditions upon which the concerned authorities may release the vehicle Alto K-10 VXI, bearing registration no. AS24B2485, to the custody of the petitioner. 15. The Criminal Petition accordingly stands allowed. JUDGE Comparing Assistant