Page No.# 1/4 GAHC010247332025 2025:GAU-AS:15835 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./466/2025 SRI HEMANTA SARMAH S/O NITYAANANDA SARMAH RESIDENT OF A.T ROAD, MARGERITHA, ASSAM, P.S., P.O. DISTRICT- TINSUKIA, PIN- 786181 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR OF ASSAM Advocate for the Petitioner : MR P KATAKI, MS. A LALA Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER 21-11-2025 1. Heard Mr. P. Kataki, learned counsel for the petitioner, and Mr. P. Borthakur, learned Additional Public Prosecutor, Assam, for the respondent. Page No.# 2/4 2. The present application under Sections 438/442 BNSS, 2023, is filed assailing an order dated 14.10.2025 passed by the learned Special Judge, NDPS, Jorhat, in connection with Titabor P.S. Case No. 128/2025, whereby a prayer for zimma of the vehicle bearing Registration No. AS-23-DC-0901, seized in connection with the aforementioned case, was rejected. 3. The brief fact is that from the five occupants of the said vehicle, 5 gm of Heroin was recovered, and accordingly, they were arrested, which includes the driver of the vehicle. These accused were granted bail by the learned Special Judge. 4. Subsequently, the present petitioner applied before the concerned learned Judge seeking zimma of the vehicle. Such a prayer of zimma of the vehicle was rejected on the ground that the vehicle is liable to be confiscated under the provisions of the NDPS Act, and also for the reason that the concerned investigating officer has sought permission for confiscation of such vehicle. 5. It is essential to record herein that the owner of the vehicle is not an accused and there are contemporaneous records suggesting that the contraband was seized from the personal possession of the accused or not from the vehicle or any concealed state inside the vehicle. 6. The law is well settled that, under the NDPS Act, the seized vehicle can be confiscated by the Trial Court only at the conclusion of the trial. Further, if the Court concludes that the vehicle is liable to be confiscated, 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. 7. The law is equally well settled that a vehicle cannot be confiscated 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 the owner had taken all the reasonable precautions against use of such seized vehicle by the accused person. Page No.# 3/4 8. There is no bar and/or restriction under the NDPS Act for the return of any seized vehicle used for transporting narcotic drugs or psychotropic substances in the interim, pending disposal of the criminal cases and therefore, a Court under Section 51 of the NDPS Act is empowered to exercise the general power under Sections 451 and 457 CrPC./497 BNSS for return of the seized vehicle pending the final decision of the criminal case. However, such power must be exercised in accordance with the law and the facts and circumstances of the case. 9. However, in the case in hand, the learned Trial Court has failed to appreciate such settled propositions of law while passing the impugned order. 10. Mr. Borthakur, learned Additional Public Prosecutor, Assam, on instruction received from the concerned investigating officer, submits that after verification of the record of ownership and having satisfaction based on such documents, the investigating officer still can release the vehicle to the registered owner, subject to the condition that they may take legal course of action as per law. 11. The Hon’ble Apex Court in Sunder Bhai Ambala Desai Vs. State of Gujrat reported in (2002) 10 SCC 283, while dealing with the power of a Magistrate under Sections 451 Cr.P.C. and 457 Cr.P.C., regarding disposal of seized material, has laid down the following propositions of law:- I. That the application for zimma of seized material shall be dealt expeditiously and judiciously with the object that the owner of the seized article should not suffer for it being remaining unused or by its misappropriation, II. The Hon’ble Apex Court at paragraph 17 observed that whatever the situation may be, it is of no use to keep the materials, more particularly, seized vehicles at the Police Station for a long period. Page No.# 4/4 12. In view of the aforesaid settled propositions of law, this Court, in the given facts of the present case, is of the view that the seized vehicle be released to the registered owner subject to the following conditions: I. The investigating authority shall prepare a proper Panchnama of the vehicle and take photographs of such vehicle and get the signature of the owner or representative of the owner, and the owner shall give a bond that such articles should be produced on issuing a bond of Rs.1,00,000/-. II. The petitioner/owner shall not change the colour or structure of the vehicle and shall not dispose of the vehicle till the disposal of the case. III. The petitioner/owner shall produce the vehicle before the investigating officer or the concerned authority/court, as and when called for investigation or trial. 13. With the aforesaid observations and determinations, the present petition stands disposed of. JUDGE Comparing Assistant