Hitender Singh Vs the State of Hp and Others

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2026:HHC:5558

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Revision No. 119 of 2026

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Date of Decision: 03.03.2026

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____________________________________ Hitender Singh Versus	___________________ …….Petitioner
State of Himachal Pradesh & others	… Respondents
____________________________________ Coram:	___________________

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Hon’ble Mr. Justice Sandeep Sharma, Judge.

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Whether approved for reporting?¹ Yes.

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For the Petitioner:	Mr. Mukesh Sharma, Advocate.
For the Respondents:	Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General.
_____________________ Sandeep Sharma, Judge (	__________________________________ oral):

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Cr. MP (M) No.2750 of 2025

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For the reasons stated in the application, which is duly

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supported by an affidavit, this Court is convinced and satisfied that delay in maintaining the accompanying petition is neither intentional nor deliberate, rather same has occurred on account of the circumstances, which were completely beyond the control of the applicant/petitioner and as such, delay of 149 days in filing the petition, which in my considered view has been sufficiently explained, is condoned. The petition be registered. The application stands disposed of.

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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Criminal Revision No. 119 of 2026

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Instant Criminal Revision Petition filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, lays challenge to order dated 14.02.2025, passed by learned Special Judge-II, Solan, District Solan, Himachal Pradesh in Cr.MP No.102 of 2025, whereby an application under Section 503 of Bharatiya Nagarik Suraksha Sanhita filed by the petitioner for release of vehicle bearing registration No. HP-64-A-9822 came to be rejected.

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Precisely, the case of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Mukesh Sharma, learned counsel for the petitioner, is that learned Court below, while passing the impugned order, failed to take note of the fact that no fruitful purpose would be served by not releasing the custody of the vehicle, which is otherwise lying parked in open and in the event of its being not released, there is every likelihood of its being damaged. Learned counsel for the petitioner states that petitioner is ready and willing to furnish an undertaking to the effect that vehicle, sought to be released, shall not be used for illegal activities and immediately after release of the vehicle, the same shall be transferred in the name of father of the petitioner.

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While referring to the to the judgment passed by Hon'ble Apex Court in Criminal Appeal No.87 of 2025, arising out of Special Leave Petition (Crl.) No.13370 of 2024), titled Bishwajit Dey vs. The

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State of Assam, learned counsel for the petitioner states that there is no bar in release of vehicle involved in the commission of offence under NDPS Act.

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To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while supporting the impugned order passed by learned Special Judge-II, Solan, states that petitioner is a drug paddler and has been using the vehicle, sought to be released, in the instant proceeding repeatedly and as such, no illegality can be said to have been committed by the Court below, while rejecting the application for release preferred at the behest of the petitioner. He states that vehicle, sought to be released, is involved in three FIRs registered under NDPS Act against the petitioner, who is otherwise owner of the vehicle. He states that repeatedly petitioner gave an undertaking at the time of release of vehicle that same shall be not used for illegal activities, but yet same was used for transportation and possession of narcotics. Learned Additional Advocate General states that likelihood of the vehicle, if released, being used again for transporting/trafficking contraband substances cannot be ruled out. He contends that vehicle involved in the commission of offence under stringent laws, such as the NDPS Act, serve as essential tools for offenders to execute their illegal activities and releasing such a vehicle prematurely may increase the risk of its reuse. While referring to the judgment passed by Hon'ble Apex Court in Bishwajit Dey case

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(supra), Mr. Kahol, learned Additional Advocate General submitted that same is not applicable in the given facts and circumstances of the case for the reason that vehicle in the case before Hon'ble Apex Court was of third-party. However, in the instant case vehicle, sought to be released, is of the accused, who has used the same vehicle repeatedly in three offences under NDPS Act and as such, there is every likelihood of use of the same in another offence, if ordered to be released.

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Having heard learned counsel representing the parties and perused material available on record vis-à-vis reasoning assigned in the impugned order, this court sees no illegality or infirmity in the same and as such, no interference is called for.

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Careful perusal of the material adduced on record reveals that inasmuch as three FIRs i.e. FIR No. 101 of 2021, dated 19.12.2021, FIR No. 41 of 2022, dated 25.02.2022 and FIR Nos. 49 of 2024, dated 9.06.2024 stand registered against the petitioner in different police stations under NDPS Act. In FIR No. 101 of 2021 and FIR No. 41 of 2022, under Section 20 of NDPS Act, vehicle was earlier ordered to be released on the request of petitioner, but with an undertaking that same shall not be used for illegal activities, but it is an admitted fact that despite there being undertaking given to the Court below, petitioner used the same vehicle for the commission of offence under NDPS Act not once but thrice.

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Mere factum of lodging of three FIRs under NDPS Act against the petitioner, coupled with the fact that detention order was issued against him under PIT NDPS Act itself suggests that petitioner herein is not a consumer, but drug peddler and in that situation, no illegality can be said to have been committed by the Court below, while rejecting his application for release of the vehicle.

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True it is that there is no specific bar /restriction under the provisions of the NDPS Act for return of any seized vehicle used for transporting narcotic drug or psychotropic substance in the interim pending disposal of the criminal case, but such prayer, if any, made shall be considered and decided by the Court concerned in accordance with law in the facts and circumstances of each case.

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In the absence of any specific bar under the NDPS Act

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and in view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr.P.C. for return of the seized vehicle pending final decision of the criminal case, but as has been observed hereinabove, exercise of such power under aforesaid under law would vary from case to case.

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Though, vehicle involved in the commission of offence being a critical piece of material evidence may be required for inspection to substantiate the prosecution’s case, but yet such requirement can be met by stipulating conditions while releasing the Vehicle in interim on superdari like videography and still photographs

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to be authenticated by the Investigating Officer, owner of the vehicle and accused by signing the said inventory as well as restriction on sale/transfer of the Vehicle. However, in the instant case, papers of the vehicle were never produced by the petitioner at the time of impounding the vehicle, coupled with the fact that same vehicle has been used for the commission of offence thrice under NDPS Act.

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It is none of the case of the petitioner that he is not the owner of the vehicle, sought to be released. Though, it has been claimed at the behest of the petitioner that vehicle in question is required to be used by other family members, but once past conduct of the petitioner itself suggest that he despite his having given undertaking to the Courts has repeatedly used the vehicle for the commission of offence punishable under NDPS Act, this Court sees no reason to release the vehicle, subject to certain conditions, as has been prayed for.

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Hon'ble Apex Court in Bishwajit Dey case (supra), which has been heavily relied upon by learned counsel for the petitioner, has talked about four scenarios/situations where seizure of drugs/ substances from conveyances can take place. Firstly, where 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

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accused and contraband is recovered from such stolen vehicle and 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 afore judgment, Hon'ble Apex Court has categorically held that in 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 and as such, 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. In the instant case, vehicle, sought to be released, is owned by the petitioner himself, who is accused in four cases under NDPS Act and same vehicle has been used repeatedly for the commission offence under NDPS in all the four cases.

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At this stage, it would be profitable to reproduce following paras of the judgment passed by Hon'ble Apex Court in Bishwajit Dey case(supra) herein below:-

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“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,

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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 he 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.

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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.

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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.

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In the present case, this Court finds that after conclusion of investigation, a charge-sheet has been filed in the Court of Special Judge, NDPS Karbi Anglong. In the said chargesheet, neither the owner of the Vehicle nor the driver has been arrayed as an accused. Only a third-party occupant has been arrayed as an accused. The police after investigation has not found that the appellant i.e. the owner of the vehicle, has allowed his vehicle to transport contraband drugs/ substances with his knowledge or connivance or that he or his agent had not taken all reasonable precautions against such use.

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Consequently, the conveyance is entitled to be released on superdari.

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In fact, the Supreme Court in similar facts in Sainaba vs. State of Kerala and Another, 2022 SCC OnLine SC 1784 has held as under:-

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“6. The appellant has urged inter alia that as per Section 36- C read with Section 51 of the NDPS Act, Criminal Procedure Code would be applicable for proceedings by a Special Court under NDPS Act and Section 451 has an inbuilt provision to impose any specific condition on the appellant while releasing the vehicle. The appellant is undoubtedly the registered owner of the vehicle but had not participated in the offence as alleged by the prosecution nor had knowledge of the alleged transaction. 7. Learned counsel seeks to rely on the judgment of this Court in Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283 opining that it is no use to keep such seized vehicles at police station for a long period and it is open to the Magistrate to pass appropriate orders immediately by taking a bond and a guarantee as well as security for return of the said vehicle, if required at any point of time.

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On hearing learned counsel for parties and in the conspectus of the facts and circumstances of the case, and the legal provisions referred aforesaid, we are of the view that this is an appropriate case for release of the vehicle on terms and conditions to be determined by the Special Court.

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The appeal is accordingly allowed leaving parties to bear their own costs.”

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This Court is also of the view that if the Vehicle in the present case is allowed to be kept in the custody of police till the trial is over, it will serve no purpose. This Court takes judicial notice that vehicles in police custody are stored in the open. Consequently, if the Vehicle is not released during the trial, it will be wasted and suffering the vagaries of the weather, its value will only reduce”.

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Consequently, in view of the detailed discussion made

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hereinabove as well as law taken into consideration, this Court sees no illegality or infirmity in the impugned order passed by learned court below and as such ,same is upheld.

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