Introduction:
In a significant judgment balancing the objectives of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) with the rights of property owners, the High Court of Jammu & Kashmir and Ladakh has held that the mere possibility of a vehicle being confiscated at the conclusion of a criminal trial does not justify its continued detention in police custody throughout the pendency of the proceedings. The Court observed that confiscation under the NDPS Act is neither automatic nor immediate upon seizure. Instead, it is a judicial determination to be made only after the conclusion of the trial and after affording the owner a meaningful opportunity of being heard.
The judgment was delivered by Justice M.A. Chowdhary in Anjum Rafiq v. Union Territory of Jammu & Kashmir & Another, 2026 LiveLaw (JKL) 293, while deciding a criminal revision petition challenging the rejection of an application seeking interim release of a seized vehicle on supardari.
The petitioner, Anjum Rafiq, claimed to be the registered owner of a Hyundai i20 car that had been seized by the investigating agency in connection with an FIR registered under Sections 8, 21, 22, 25, and 29 of the NDPS Act. According to the prosecution, the vehicle had been used in the transportation of narcotic substances and therefore constituted material evidence in the criminal case. The prosecution also maintained that the vehicle was liable to eventual confiscation under the provisions of the NDPS Act.
The petitioner approached the Trial Court seeking interim custody of the vehicle, contending that leaving it parked in the open premises of a police station for an indefinite period would result in substantial deterioration and financial loss. He asserted that he was willing to furnish adequate security and comply with any conditions that the Court might impose to safeguard the prosecution’s interests.
However, the Trial Court rejected the application primarily on two grounds. First, it observed that the petitioner himself was an accused in the criminal case. Secondly, it held that since the vehicle was liable to confiscation under the NDPS Act, it ought not to be released during the pendency of the trial.
Aggrieved by this order, the petitioner invoked the revisional jurisdiction of the High Court. The matter required the Court to examine the interaction between Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which empowers criminal courts to make interim orders regarding custody of seized property, and Sections 60 and 63 of the NDPS Act dealing with confiscation of conveyances used in narcotics offences.
The decision assumes considerable importance because vehicles seized in criminal cases frequently remain parked in police stations for years until the completion of trials, resulting in severe deterioration of valuable movable property. The High Court’s judgment therefore addresses the broader question of whether criminal courts possess the power to release such vehicles on interim custody despite the confiscation provisions contained in special legislation like the NDPS Act.
Arguments of the Parties:
The petitioner submitted that he was the registered owner of the Hyundai i20 vehicle seized during the investigation and sought its release on interim supardari pending conclusion of the criminal proceedings. It was argued that the continued retention of the vehicle at the police station would expose it to harsh weather conditions and prolonged neglect, causing irreparable depreciation in its market value.
The petitioner further contended that the quantity of contraband allegedly recovered in the case fell within the category of intermediate quantity and that the trial was likely to take considerable time to conclude. During this prolonged period, continued seizure of the vehicle would serve no useful purpose while simultaneously causing unnecessary financial hardship to its owner.
It was also submitted that the petitioner was prepared to furnish adequate surety, security, or any other undertaking that the Court considered appropriate. He expressed his willingness to produce the vehicle before the Court or investigating agency whenever required and to comply with every condition imposed to ensure that the interests of the prosecution remained fully protected.
The petitioner argued that confiscation under the NDPS Act is not automatic merely because a vehicle has been seized. According to him, confiscation can be considered only after the trial reaches its conclusion and the competent court examines the circumstances in accordance with the statutory provisions. Consequently, the mere possibility of future confiscation could not justify indefinite detention of the vehicle during the pendency of criminal proceedings.
The State opposed the revision petition and defended the order passed by the Trial Court. It was argued that the vehicle had allegedly been used for transporting narcotic substances and therefore constituted an important piece of material evidence in the prosecution case.
The prosecution further submitted that the NDPS Act specifically provides for confiscation of conveyances used in the commission of offences under the Act. Since the seized vehicle was liable to eventual confiscation, its interim release would be inconsistent with the objectives of the special legislation enacted to combat narcotics offences.
The State also expressed apprehension that if the vehicle were released, there existed a possibility that it might once again be used for similar illegal activities. According to the prosecution, continued custody of the vehicle with the investigating agency was necessary both for preserving evidence and for preventing future misuse.
Accepting these submissions, the Trial Court had refused interim custody, observing that since the petitioner himself was an accused and the vehicle was liable to confiscation, release during the pendency of the trial was not appropriate. The correctness of this reasoning came under scrutiny before the High Court.
Court’s Judgment:
Allowing the criminal revision petition, the High Court set aside the order of the Trial Court and directed release of the Hyundai i20 vehicle to its registered owner on interim supardari, subject to appropriate safeguards.
Justice M.A. Chowdhary began by examining the statutory framework governing custody of seized property during criminal proceedings. The Court first referred to Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which confers broad powers upon criminal courts to pass appropriate orders regarding custody, preservation, and disposal of property seized during investigation or trial.
The Court observed that Section 497 BNSS reflects a modern legislative approach towards management of seized property. The provision specifically contemplates preparation of inventories, photographs, and videography so that physical production of seized articles during trial is not always necessary. This legislative framework recognises that valuable movable property should not remain unnecessarily exposed to deterioration merely because criminal proceedings are pending.
The High Court then turned to the provisions of the NDPS Act governing confiscation. It carefully analysed Sections 60 and 63 of the Act and observed that although Section 60 provides for confiscation of conveyances used in commission of narcotics offences, such confiscation does not automatically follow the seizure of the vehicle.
According to the Court, Section 63 makes it abundantly clear that confiscation is a judicial determination to be undertaken only after the conclusion of the criminal trial. At that stage, the owner must be afforded a reasonable opportunity to establish that the vehicle had been used without his knowledge or connivance before any order of confiscation is passed.
The Court emphasised that confiscation is therefore neither an administrative consequence of seizure nor an inevitable outcome of prosecution. Instead, it is a separate judicial exercise dependent upon the final outcome of the trial and the evidence led before the Court.
The Bench categorically observed that upon a proper reading of the NDPS Act, confiscation of a seized vehicle can be ordered only after the accused is convicted, acquitted, or discharged. Until such stage is reached, the statutory provisions do not prohibit interim release of the vehicle.
Having analysed the confiscation provisions, the Court concluded that neither Section 60 nor Section 63 of the NDPS Act contains any express prohibition against granting interim custody of a seized vehicle pending trial. In the absence of such a statutory bar, the general power conferred upon criminal courts under Section 497 BNSS continues to remain fully available.
The High Court therefore rejected the Trial Court’s reasoning that the possibility of future confiscation by itself justified continued detention of the vehicle. Justice Chowdhary observed that the mere fact that a vehicle may eventually become liable for confiscation under Section 60(3) of the NDPS Act cannot be treated as a legal impediment to granting interim custody before the confiscation proceedings themselves become ripe for consideration.
Addressing the prosecution’s submission that the vehicle constituted an important piece of evidence, the Court held that this concern could be adequately addressed by imposing suitable conditions while directing interim release.
The Bench observed that before releasing the vehicle, the investigating agency could prepare a comprehensive inventory accompanied by detailed videography and still photographs clearly depicting the condition and identity of the vehicle. These documents could be authenticated by obtaining the signatures of the Investigating Officer, the owner, and the accused, thereby ensuring preservation of evidentiary value.
The Court further observed that additional safeguards could also be imposed, including restrictions preventing the owner from selling, transferring, or otherwise alienating the vehicle during the pendency of the criminal proceedings. Such conditions would sufficiently protect the interests of the prosecution while simultaneously preventing unnecessary economic loss to the owner.
An important aspect of the judgment relates to the Court’s practical observations regarding prolonged detention of vehicles. Justice Chowdhary noted that vehicles retained in open police premises for extended periods invariably deteriorate because of continuous exposure to weather conditions, lack of maintenance, and natural wear and tear.
The Court remarked that such deterioration serves no meaningful prosecutorial purpose. Instead, it results in avoidable destruction of valuable movable property while criminal trials, particularly under special statutes, often remain pending for several years. The Court observed that the justice delivery system should avoid permitting valuable property to become worthless merely because legal proceedings are likely to consume considerable time.
This reasoning reflects the broader judicial approach consistently adopted by higher courts that seized vehicles should ordinarily not be allowed to decay in police custody where their evidentiary value can be adequately preserved through modern technological methods.
The judgment also harmoniously reconciles the provisions of the BNSS with those of the NDPS Act. Rather than treating the confiscation provisions as excluding the powers available under criminal procedure, the Court interpreted both statutes in a manner that gives full effect to each. Confiscation remains available upon conclusion of the trial wherever legally justified, while interim custody remains permissible during the pendency of proceedings subject to appropriate safeguards.
Ultimately, the High Court concluded that the Trial Court had committed an error in treating potential confiscation as an absolute bar to interim release. Since the statutory scheme did not prohibit such release and adequate safeguards could sufficiently protect the prosecution’s interests, continued detention of the vehicle was found to be legally unjustified.
Accordingly, the revision petition was allowed, the impugned order rejecting interim custody was set aside, and the Hyundai i20 vehicle was directed to be released to its registered owner on interim supardari subject to conditions imposed by the competent court.
The judgment is significant because it reinforces the principle that seizure of property during criminal proceedings does not automatically justify indefinite deprivation of possession. It clarifies that confiscation under the NDPS Act is a post-trial judicial determination rather than an immediate consequence of seizure and that criminal courts retain the authority under Section 497 BNSS to release seized vehicles pending trial. By emphasizing preservation of valuable property, adoption of technological safeguards such as videography and inventories, and the importance of balancing prosecutorial interests with property rights, the High Court has provided valuable guidance for courts dealing with applications for interim custody of vehicles seized in narcotics cases.