Page No.# 1/8 GAHC010075402026 2026:GAU-AS:10861 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./207/2026 SAHAB UDDIN SON OF LATE ABDUL RAZZAK R/O MASLY, BHANGA, P.S. BADARPUR, DIST. SRIBHUMI, ASSAM, PIN- 787701 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : A SAIKIA, MR. SUMANTA TALUKDAR,A KALITA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 05-08-2026 Heard Mr. S. Talukdar, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent. 2. In this petition, under Sections 401, read with Section 397 of the Cr.P.C. (as applicable Section 442, read with Section 438 of the BNSS, 2023), the Page No.# 2/8 petitioner has challenged the order dated 24.02.2026, passed by the learned Special Judge (NDPS), Hailakandi, in petition No. 252/09, in connection with Algapur P.S. Case No. 100/2025, registered under Section 22(c) of the NDPS Act, 1985. 3. It is to be noted here that vide impugned order dated 24.02.2025, the learned Special Judge (NDPS), Hailakandi (‘trial Court’, for short) had dismissed the petition No. 252/09, filed by the petitioner, seeking custody of the vehicle, bearing Registration No. AS-01DJ-5736 (Maruti Suzuki WagonR, white coloured), which was seized in connection with Algapur P.S. Case No. 100/2025, registered under Section 22(c) of the NDPS Act, 1985. 4. Mr. Talukdar, learned counsel for the petitioner submits that the vehicle of the petitioner was seized in connection with Algapur P.S. Case No. 100/2025, registered under Section 22(c) of the NDPS Act, 1985, and thereafter, the petitioner had preferred an application seeking custody of the said vehicle before the learned trial Court. However, vide impugned order, dated 24.02.2026, the learned trial Court had dismissed the petition on the ground that the available materials prima facie show that the given contraband (cough syrup containing codeine) was seized from the possession of the accused-petitioner soon after he was found transporting the contraband by the said vehicle, and also by holding that visibly enough, the vehicle may be subject to confiscation at the appropriate stage under Sections 60/63 of the NDPS Act, though the I.O. had reported that the said items, including the vehicle are no more required for investigation. 4.1. Mr. Talukdar also submits that the petitioner was arrested in the said case and he was granted bail for not mentioning the quantity of contraband substances seized in the seizure list, and that the petitioner had prayed for Page No.# 3/8 interim custody of the vehicle and at the end of trial, in the event the petitioner is found guilty, then the Court may proceed with the vehicle, as per Sections 60/63 of the NDPS Act. 4.2. Mr. Talukdar has also referred to a decision of Hon’ble Supreme Court in the case of Sundarbhai Ambala Desai vs. State of Gujarat, reported in (2002) 10 SCC 283. 5. Per contra, Mr. Borthakur, learned Additional Public Prosecutor for the State respondent has referred to a decision of Hon’ble Supreme Court in the case of Bishwajit Dey vs. The State of Assam, in Criminal Appeal No. 87 of 2025, arising out of Special Leave Petition (Crl.) No. 13370 of 2024, especially to paragraph Nos. 29 and 30, and submits that the case of the petitioner is squarely covered by the first scenario, discussed in the said paragraphs, and as such, the petitioner herein is not entitled to get the interim custody of the seized vehicle, until reverse burden is discharged by him. And therefore, he has contended to dismiss the petition. 6. In reply to the submission of Mr. Borthakur, learned Additional Public Prosecutor, Mr. Talukdar, learned counsel for the petitioner submits that the petitioner’s case will come under paragraph No. 31 of the aforesaid decision, wherein Hon’ble Supreme Court has clarified that the aforesaid discussion would not be taken as laying down a rigid formula as it will be open to the learned trial Courts to take a different view, if the facts of the case so warrant. 7. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 24.02.2026, and also gone through the decision of Hon’ble Supreme Court in the case of Bishwajit Dey Page No.# 4/8 (supra). 8. It is to be noted here that under Section 60 of the NDPS Act, any conveyance used in carrying a narcotic drug/psychotropic substance is liable to confiscation, unless the owner proves that it was used without his knowledge or connivance and that he and his agent, if any, had taken all reasonable precautions against such use. 9. In the case of Bishwajit Dey v. State of Assam reported in (2025 INSC 32), Hon’ble Supreme Court has linked the reverse burden directly to interim release of the vehicles and laid down four broad scenarios of seizure from a conveyance. (i) In the first two scenarios is, owner is the person from whom the contraband is recovered, or the contraband is recovered from the owner’s agent such as a hired driver/cleaner — so the owner/agent is an accused, the vehicle may not be released on superdari until the reverse burden of proof is discharged by the accused-owner. (ii) In the other scenarios such as stolen vehicle, or recovery from a third-party occupant with no allegation of the owner’s knowledge/connivance, the vehicle should normally be released on interim custody subject to conditions. 9.1. The relevant paragraph Nos. 29 and 30 of Bishwajit Dey (supra), are extracted herein 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 Page No.# 5/8 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 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.” 9.2. It is also to be noted here that in paragraph No. 31 of the aforesaid decision, it has been held as under: “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, Page No.# 6/8 if the facts of the case so warrant.” 10. Further, from the materials placed on record, especially from the impugned order dated 24.02.2026, it becomes apparent that cough syrup containing codeine was seized from the possession of the present petitioner and he was found transporting the contraband substances by the seized vehicle. And this is an undisputed fact at this stage. And he is the owner of the said vehicle involving recovery of a commercial quantity of contraband substances. 10.1. And in that view of the matter, the case of the petitioner comes under the first scenario in paragraph No. 29 of the aforesaid decision, wherein it is stated that where the owner of the vehicle is the person from whom the possession of contraband drugs/substance is recovered and in that scenario, the owner of the vehicle and/or his agent would necessarily be arrayed as an accused. 10.2. Further, in view of the observation made in paragraph No. 30, the vehicle in question must be released till reverse burden of proof is discharged. And the question of discharging reverse burden under Section 35 and 54 of the NDPS Act arises only then when the prosecution side has establish the charge beyond all reasonable doubt. Admittedly, said stage is yet to be reached by the prosecution. And until the owner discharge the release of the vehicle can be refused. The reverse burden therefore acts as a significant barrier to interim release of the vehicle when the owner is implicated. Even then, it remains discretionary and fact-specific. 10.3. And it is well settled proposition of law that when exercising discretionary jurisdiction a court passes a particular order, the revisional Courts, sitting in revision, cannot substitute its own view merely on the ground that another view is possible. Interference of High Court in criminal revision is limited to cases of perversity, illegality, jurisdictional error, or gross miscarriage of justice. Page No.# 7/8 Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of State of Kerala v. Puttumana Illath Jathavedan Namboodiri, reported in (1999) 2 SCC 452, wherein it has been held that the High Court’s revisional power is supervisory and cannot be equated with appellate (or second appellate) jurisdiction. It is ordinarily inappropriate for the High Court to re-appreciate evidence and arrive at its own conclusion when the evidence has already been appreciated by the Magistrate and the Sessions Judge, unless a glaring feature is pointed out that would amount to a gross miscarriage of justice. Again in the case of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, reported in (2015) 3 SCC 123, Hon’ble Supreme Court reiterated that a revisional court can interfere with the findings of fact recorded by the lower court only when those findings are perverse, and not merely because another view is also possible. The High Court in exercising it’s revisional jurisdiction cannot substitute its own views. 11. Though, Mr. Talukdar, learned counsel for the petitioner has contended that his case is covered under the observation made by Hon’ble Supreme Court in paragraph No. 31 of Bishwajit Dey (supra), yet, he could not demonstrate from the record as to as to how the facts of his case warrants taking of a different view, as stated in the said paragraph. 12. It is however a fact that keeping the vehicle in police custody indefinitely serves little purpose rather it would deteriorates and its value would be diminished. But, at the same time the risk of further misuse and the vehicle’s status as material evidence weigh against release when the owner is implicated. 13. Thus, having examined the impugned order in the light of given factual and legal matrix, this Court is of the considered opinion that finds the impugned Page No.# 8/8 order suffers from no illegality or irregularity, requiring interference of this Court. 14. In the result, this Court finds no merit in this petition, and accordingly, the same stands dismissed, leaving the parties to bear their own costs. JUDGE Comparing Assistant