Page No.# 1/3 GAHC010226162024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1310/2024 KHULAKPAM MUHASHINA W/O MD. ZIAUR RAHMAN, VILL- KWAKTA SABAL LEIKAI, P.S.-MOIRANG, DIST-BISHNUPUR, MANIPUR VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MOTIUR RAHMAN, MR. NOOR KUTUB ALAM,I AMIN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 13.02.2025 1. Heard Mr. M. Rahman, learned counsel for the petitioner. Also heard Mr. D.P. Goswami, learned Additional Public Prosecutor. 2. This Criminal Petition has been filed by the petitioner impugning the order dated 27.09.2024, passed by the learned Special Judge, Kamrup, Amingaon in connection with NDPS Case No.4/2024 arising out of North Guwahati P.S. Case No. 116/2023 under Sections 21(C)/29 of the NDPS Act, 1985, whereby the prayer of the petitioner seeking zimma of the seized vehicle was rejected. Page No.# 2/3 3. Learned counsel for the petitioner has submitted that the petitioner is not an accused in the said NDPS Case No.04/2024, which is pending before the Court of learned Special Judge. He has submitted that he is the owner of the seized vehicle. 4. Learned counsel for the petitioner has also submitted that though this case was registered under Section 21(C) of the NDPS Act, however, in the meanwhile, the Trial Court has allowed the accused persons to go on bail by holding that the contraband seized in this case is of intermediate quantity. 5. Learned counsel for the petitioner also submits that the petitioner’s vehicle was used in commission of the alleged offence without his knowledge or consent. He further submits as the case is still pending trial and has not yet culminated, the question of confiscation of the seized vehicle does not arise at this stage. 6. On the other hand, learned Additional Public Prosecutor has opposed the petition filed by the present petitioner on the ground that the materials on record shows that the recovery of the seized contraband was made from the vehicle of the present petitioner and in the event any conviction of the accused, the vehicle may be subjected to confiscation and therefore, the Trial Court was right in rejecting the prayer for zimma of the vehicle. 7. I have considered the submission made by the learned counsel for both sides and also perused the materials available on record. 8. On perusal of the impugned order, it appears that the main ground on which the Trial Court rejected the zimma prayer was that the seized vehicle may be subjected to confiscation and as the petitioner has not taken any plea before the Trial Court that the vehicle was used without his knowledge, the prayer for zimma was rejected. The relevant portion of the impugned order is quoted hereinbelow:- “Section 60 of the NDPS Act deals with the procedure of confiscation of drugs, substances, articles, conveyance etc. As per section 60 (3) of NDPS Act any animal or conveyance used in carrying any narcotic drugs or Psychotropic substance are liable to confiscation under sub-section 1 or 2, 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 and conveyance and each of them had taken reasonable precautions against such use. In the present case the petitioner has not denied recovery of the contraband Page No.# 3/3 from vehicle no. MN06L6393. The petitioner also has not averred any statement that the vehicle was used without her knowledge or connivance or that she has taken all precautions against the use of the vehicle in transportation of the contraband. That being the position I am of the view that it is not a fit case to grant zimma to the petitioner Khulakpam Muhashina of vehicle No. MN06L6393. Accordingly the zimma petition is rejected.” 9. It appears that the Trial Court has rejected the prayer for zimma on the ground that the vehicle would be subjected to confiscation proceeding under Section 60 of the NDPS Act. However, Section 63 of NDPS Act provides that the confiscation proceeding may be initiated only if the accused is convicted or acquitted or discharged. It is only on these contingencies, the Trial Court may initiate a confiscation proceeding. In the instant case, the trial is still pending at the evidence stage. Therefore, during the pendency of the trial, if the vehicle is kept under open sky in the police compound, it would certainly get damaged and the value of the said vehicle would get diminished. Instead of that, the petitioner who is the owner of the seized vehicle, may be granted zimma of the seized vehicle during the pendency of the trial, on such terms and conditions as deem fit by the Trial Court. 10. This Criminal Petition is accordingly allowed and the impugned order is set aside. The Trial Court shall consider the zimma petition afresh in light of the observations made hereinabove. 11. With the above observation, the criminal petition stands disposed of. JUDGE Comparing Assistant