Page No.# 1/8 GAHC020001292025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : Crl. Pet./9/2025 MR. H. DASOU R/O TUNGAM KHULLEN VILLAGE, P.O/P.S. TADUBI, DISTRICT SENAPATI, MANIPUR VERSUS THE STATE OF NAGALAND NAGALAND Advocate for the Petitioner : A. ZHO, B. SOTO,AJANO Advocate for the Respondent : P.P, NAGALAND, Page No.# 2/8 BEFORE HON'BLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 23-05-2025 Heard Mr. B. Soto, learned counsel for the petitioner. Also heard Ms. S. Mere, learned Public Prosecutor for the State respondent. 2. This application is filed under Section 528 of the BNSS read with Section 438 of the BNSS, seeking a direction for the release of the vehicle on zimma by invoking the inherent powers of this Hon’ble Court. 3. Mr. Soto, learned counsel for the petitioner has submitted that during the investigation, the petitioner’s vehicle bearing registration No. MN03P-82855 (Alto 800 LXI) was seized in connection with the present case, along with certain relevant documents including the driving licence and the car registration certificate. He further submitted that the petitioner had filed an application for zimma of the said vehicle before the learned Special Judge (NDPS), Kohima. However, after hearing both parties, the said petition was rejected vide order dated 30.01.2025 [I.A. No. 406/2024], on the observation that the petitioner was the owner/driver of the seized vehicle as well as the owner of the seized contraband. The Court also considered the Investigating Officer’s report, wherein it was stated that a report from the RTO was still awaited. Accordingly, the Court rejected the prayer for release of the vehicle on zimma at that stage. Nevertheless, the learned trial Court partially allowed the zimma application, but refused to grant interim zimma of the vehicle, as well as the car registration certificate and driving licence. 4. On the other hand, Ms. Mere, learned Public Prosecutor, submitted that the status report of the case has already been received by this Court. From the report, it is evident that the petitioner himself admitted his Page No.# 3/8 involvement in the alleged offence. His voluntary statement reveals that he admitted to concealing six soap cases containing heroin in the vehicle. Accordingly, she submitted that the petitioner is not merely the driver but was actively involved in the offence and is, in fact, the main accused who concealed the contraband in the vehicle, which was recovered from his conscious possession. 5. In this context, she relied on the judgment of the Hon’ble Supreme Court in Biswajit Dey vs. State of Assam [Criminal Appeal No. 87/2025, decided on 07.01.2025], and specifically stressed paragraphs 29 and 30 of the said judgment, wherein it was held that a vehicle cannot be released on zimma to its owner if the owner is an arrested accused and contraband was recovered from his possession. Paragraphs 29 and 30 read as under: “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 vehicle may not be released on superdari till reverse burden of proof is Page No.# 4/8 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.” 6. She further relied on another decision passed by the Hon’ble Madras High Court in Palaniappan vs. State Rep. by Inspector of Police [Crl. R.C. No. 1115 of 2024, dated 02.07.2024], wherein, the prayer for release of the vehicle on zimma was rejected, even though the owner of the vehicle was the father of the accused/petitioner. In this regard, she specifically referred to paragraph 10 of the said judgment, which reads as under: “10. Coming to the facts in issue, there is no quarrel that the petition u/s 451 Cr.P.C. has been filed before the trial court, which exercises jurisdiction and that the petition has been filed by the petitioner, who claims to be owner of the vehicle. Therefore, the first arm with regard to jurisdiction and ownership stands fulfilled, but the second arm with regard to the owner of the vehicle satisfying the Court by proving that the vehicle was used without his knowledge or connivance has not been established, as the petitioner is the father of the accused A2, and only after investigation it could be elicited whether the petitioner was involved in the offence. Though the name of the petitioner is not shown in the FIR, merely on the said ground it cannot be inferred that the petitioner has no nexus with the trafficking of the contraband unless the investigation is completed. Since the complicity of the petitioner in the offence would be clear only after completion of investigation, it would not be in the interest of the prosecution to have the vehicle given interim custody to the petitioner, as the vehicle is a material object, which is connected with the commission of the offence.” 7. Citing the aforementioned judgments, the learned Public Prosecutor Page No.# 5/8 submitted that this is a case where not only was contraband recovered from the possession of the accused/petitioner, but the petitioner was also fully aware that the contraband was kept in his vehicle. In fact, he was the very person who had concealed the contraband in the said vehicle. Accordingly, she raised a vehement objection to the granting of zimma of the vehicle to the accused/petitioner at this stage, especially when the investigation is still ongoing. 8. In response, Mr. Sota, learned counsel for the petitioner, submitted that it is fact that the petitioner has been arrayed as an accused and the contraband is alleged to have been recovered from his possession, there is no absolute bar to the release of the vehicle in his favour, particularly in the absence of any initiation of confiscation proceedings regarding the seized vehicle. He further contended that in the case of Biswajit Dey (supra), as relied upon by the learned Public Prosecutor, the Hon’ble Supreme Court has clearly held in paragraph 23 that there is no statutory bar or restriction under the provisions of the NDPS Act preventing the return of the seized vehicle used for the transportation of drugs and psychotropic substances on an interim basis, pending disposal of the criminal case. 9. In support of his submission, Mr. Sota also relied on another decision of the Hon’ble Supreme Court in Tarun Kumar Majhi vs. The State of West Bengal [Arising out of Special Leave Petition (Crl.) No. 17081/2024, dated 03.03.2025], wherein paragraph 12 of the said judgment it has been held that the vehicles can be confiscated by the Trial Court only after the conclusion of the trial when the accused is convicted or acquitted or discharged. Further, even where the Court is of the view that the vehicle is liable for confiscation, it must give an opportunity of hearing to the person who may claim any right to the seized vehicle before passing an order of confiscation. He basically Page No.# 6/8 emphasized paragraphs 12, 13, and 14 of the said judgment, which read as under: “12. It is settled law that the seized vehicles can be confiscated by the Trial Court only on conclusion of the trial when the accused is convicted or acquitted or discharged. Further, even where the Court is of the view that the vehicle is liable for confiscation, it must give an opportunity of hearing to the person who may claim any right to the seized vehicle before passing an order of confiscation. However, the seized vehicle is not liable to confiscation if the owner of the seized vehicle can prove that the vehicle was used by the accused person without the owner’s knowledge or connivance and that he had taken all reasonable precautions against such use of the seized vehicle by the accused person. 13. Recently this Court in Bishwajit Dey vs. The State of Assam, Criminal Appeal No.87 of 2025 dated 7th January, 2025 has held that there is no specific bar/restriction under the NDPS Act for release in the interim of any seized vehicle. 14. Since the respondent-State is unable to give any definitive timeline as to when trial against the fifth accused would conclude, this Court directs the Trial Court to release the vehicle in question after preparing a video and still photographs of the vehicle, subject to the Appellant furnishing a surety bond of Rs.2,10,000/- (Rupees Two Lakhs Ten Thousand) instead of Rs.6,00,000/- (Rupees Six Lakhs).” 10. He further submitted that the Co-ordinate Bench of this Hon’ble High Court, in the case of Chaktar Ali @ Sattar Ali vs. The State of Assam [Criminal Rev. P. No. 479/2023, dated 05.12.2023], held in paragraph 5 of the judgment that the vehicle was released on zimma to the accused/petitioner, as no confiscation proceedings were pending before the learned Trial Court. Accordingly, learned counsel for the petitioner submitted that the vehicle in question can similarly be released on zimma to the present petitioner, who undertakes to produce the vehicle whenever required during the course of investigation or trial. Page No.# 7/8 11. Having heard the submissions of the learned counsel for both sides and upon perusal of the case status report submitted by the Investigating Officer, the following facts emerge: 12. It is observed from the status report that the petitioner, in his statement to the IO, stated he is not the registered owner of the vehicle; rather, his elder brother is. He claimed he would often drive the vehicle as his elder brother does not know how to drive. On the day of the incident, he allegedly took the vehicle without informing his elder brother and, during the journey, came into contact with a co-accused. Thereafter, he himself concealed the contraband within the vehicle. 13. On one hand, the petitioner now claims ownership of the vehicle and has filed annexures to that effect. On the other hand, he has made a contradictory statement before the IO, asserting that the vehicle belongs to his elder brother. Furthermore, it is evident from the IO’s report that the petitioner was driving the vehicle on the date of the incident, and it was he who concealed six soap cases containing contraband in the vehicle. 14. Thus, this is not a case where the petitioner is merely the owner or driver of the vehicle unaware of the contraband's presence. Rather, the materials on record suggest his active involvement in the transportation and concealment of the contraband, which was recovered from his conscious possession. The case law cited by the learned counsel for the petitioner primarily deals with situations where confiscation proceedings were either pending or considered at the stage of trial or post-trial. However, the present case is still at the investigation stage, and the charge sheet has not yet been filed. Consequently, the issue of confiscation has not arisen. 15. In light of the nature and gravity of the alleged offence, the Page No.# 8/8 petitioner’s involvement, and the fact that further custody of the vehicle may be necessary for the purpose of investigation, this Court finds no justification to allow the release of the vehicle on zimma at this stage. Accordingly, the prayer for zimma stands dismissed. 16. With above observation, this criminal petition stands disposed of. Sd/- JUDGE Comparing Assistant