Page No.# 1/7 GAHC010130352026 2026:GAU-AS:11019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./942/2026 WARISUL ALOM BARBHUIYA SON OF ABDUL MATIN BARBHUIYA RESIDENT OF GANGPAR DHUMKAR PART III, P O LAKSHMISHAR, P.S. HAILAKANDI, DISTRICT HAILAKANDI, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR F U BARBHUIYA, MS S DAS,MR. R A CHOUDHURY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 06-08-2026 Heard Mr. F.U. Borbhuyan, learned counsel for the petitioner. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the State respondent. 2. In this petition, under Sections 528 of BNSS, 2023, the petitioner has challenged the order, dated 25.11.2025, passed by the learned Special Judge (NDPS), Hailakandi, in Special NDPAS case No. 13/2025, in connection with Hailakandi P.S. Case No. 102/2025, registered under Section 22(c) of the NDPS Act, 1985. Page No.# 2/7 3. It is to be noted here that vide impugned order dated 25.11.2025, the learned Special Judge (NDPS), Hailakandi (‘trial Court’, for short) had dismissed the petition No. 214/08, filed by the petitioner, seeking custody of the Motor Cycle, bearing Registration No. AS-24D 4306 (Glamour), which was seized in connection with Hailakandi P.S. Case No. 102/2025, registered under Section 22(c) of the NDPS Act, 1985. However, the learned trial court had allowed custody of the Mobile Handset which was also seized in connection with said case. 4. Mr. Borbhuya, learned counsel for the petitioner submits that the Mobile Handset of the petitioner and his Motor Cycle, bearing Registration No. AS-24D 4306 (Glamour), was seized in connection with Hailakandi P.S. Case No. 102/2025, registered under Section 22(c) of the NDPS Act, 1985. And thereafter, the petitioner had preferred an application seeking custody of the said vehicle, being petition No. No. 214/08, before the learned trial Court. However, vide impugned order, dated 25.11.2025, the learned trial Court had dismissed the petition on the ground that the Motor Cycle was used for transporting the concerned contrabands and hence the vehicle may be required in due course for confiscation, unless such proceeding has been initiated/concluded. 4.1. Mr. Borbhuyan also submits that the petitioner is the legal owner of the vehicle and hi is entitled to custody of the said vehicle and the learned Trial Court had misread the provision of Section 497 of BNSS, and that retaining the vehicle will caste a burden upon the State to for maintaining without any benefit. It has also failed to appreciate the fact that the vehicle is being kept in open space and thereby subjected to natural decay and in due course it would be damaged and ultimately it would becomes useless. 4.2. Mr. Borbhuyan has also referred to a decision of Hon’ble Supreme Court in Page No.# 3/7 the case of Sundarbhai Ambala Desai vs. State of Gujarat, reported in (2002) 10 SCC 283, to contend that even if at the end of trial the vehicle will be required for confiscation under Section 60 of the Act, interim custody of the same could have been granted by the learned trial court. And that the impugned order is illegal and arbitrary and on such court the same may be interfered with and the vehicle may be released in interim custody of the petitioner. 5. Per contra, Mr. Baishya, 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. Baiskya, learned Additional Public Prosecutor, Mr. Borbhuyan, learned counsel for the petitioner submits that the petitioner’s case will come under paragraph No. 26 and 27 of the aforesaid decision, wherein Hon’ble Supreme Court has held that there is no specific bar/restriction under the provision of the NDPS Act in releasing the seized vehicle in interim custody by invoking the general provision of Section 451/457 Cr.P.C. 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 Page No.# 4/7 record, and also perused the impugned order dated 25.11.2025,, and also gone through the decision of Hon’ble Supreme Court in the case of Bishwajit Dey (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 Page No.# 5/7 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 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: Page No.# 6/7 “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.” 10. Further, from the materials placed on record, especially from the impugned order dated 25.11.2025 and also from the record it becomes apparent that the petitioner was found transporting the contraband substances by the seized vehicle. And this is an undisputed fact at this stage. And the petitioner is the owner of the said Motor Cycle, as per Annexure-3 of the petition, and the quantity of contraband substance so recovered and seized from the vehicle is of commercial quantity, i.e. 21 Nos. of Tripolidine and Codine Phosphate Syrup (weighing 2887 grans) and 4 numbers of Codine Phosphate and Tripolidine HC7(100ml in each bottle weighing 557 grams. 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. Page No.# 7/7 11. Though, Mr. Borbhuyan, learned counsel for the petitioner has contended that his case is covered under the observation made by Hon’ble Supreme Court in paragraph No. 26/27 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 paragraph 31 of the said decision. 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. It is to be noted here that in the case of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, reported in (2015) 3 SCC 123, Hon’ble Supreme Court has held 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. 14. Thus, having examined the impugned order dated 25.11.2025, in the light of given factual and legal matrix, this Court is of the considered opinion that finds the impugned order suffers from no illegality or irregularity, requiring interference of this Court. 15. 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