Bombay High Court
Apurva Suresh Khambaswadkar Thr His … vs The State Of Maharashtra Thr Pso Ps … on 5 March, 2026
2026:BHC-NAG:3664
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.161 OF 2025
Apurva Suresh Khambaswadkar, aged
about 35 years, occupation - business,
r/o 20/1B Wing C&T No.11838A,
Santoshi Mata Road, Bhandar Wadi,
Oppo Sa Dahisr Thane, M.S.400601.
Through his power of attorney holder
Shaikh Amin s/o Shaikh Husain, aged
about 35 years, occupation- driver,
r/o Yusuf Ali Anjan Chowk, near
Husainiya Masjid, Indira Nagar
Akot file, Akola, taluka and district Akola. ..... Applicant.
:: V E R S U S ::
1. State of Maharashtra, through its
Police Station Officer, Police Station
Barshitakli, taluka and district Akola.
2. Nisar Mukhtar Niyaji, aged about 45
years, occupation- business, r/o
Akot File, near Sufa School, Akot
Road.
(At present, the respondent No.2 is in
Central Prison, Akola) ..... Non-applicants.
================================
Shri A.B.Mirza, Counsel for the Applicant.
Shri N.B.Jawade, APP for the NA No.1/State.
================================
.....2/-
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CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 16/02/2026
PRONOUNCED ON : 05/03/2026
JUDGMENT
1. Heard learned counsel appearing for the respective
parties. Admit. Heard finally by consent.
2. The present revision application is filed by the
applicant for setting aside order 8.8.2025 passed by learned
Special Judge, NDPS Court, Akola in Criminal Misc.
Application No.38/2025 and for interim custody of vehicle
namely “TATA ZEST” bearing registration No.MH-47/N/6379
(the said vehicle) seized in Crime No.532/2025 registered
under Sections 8(c), 22(c), 25, and 29 of the Narcotic Drugs
and Psychotropic Substances Act (the NDPS Act) and under
Sections 238, 318(4), 336(3), 338, and 341(2) of the BNS.
3. Brief facts necessary for disposal of the revision are
as under:
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The applicant is registered owner of the said vehicle
having engine No.100A20000672170 and chasis
No.MAT624031HPB07480. The said vehicle is registered in
the name of the applicant and he is the registered owner of
the said vehicle. The crime was registered at Barshitakli
Police Station for offences under Sections 8(c), 22(c), 25, and
29 of the NDPS Act under Sections 238, 318(4), 336(3), 338,
and 341(2) of the BNS against five accused persons. During
course of investigation, the Investigating Officer seized the
said vehicle found parked within the premises of the house
where the raid was conducted. The said vehicle was seized
from non-applicant No.2. The seizure was made on the
ground that the said vehicle was used for transportation of
“Mephedrone.”
4. After registration of the crime, investigation was
carried out. Seizure panchanama of the said vehicle was
drawn and after completion of the investigation, chargesheet
was submitted.
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5. The applicant filed an application before the Special
Court for grant of interim custody, which came to be rejected
by order dated 8.8.2025.
6. Being aggrieved and dissatisfied with the same, the
applicant has preferred the present revision.
7. It is the contention of the applicant that he is neither
made accused nor Power of Attorney (PoA) is named as
accused in the said crime. He has no connection whatsoever
with the aforesaid offence. The applicant being lawful owner
of the said vehicle has filed an application, but learned
Special Court has not considered the same as the entire
chargesheet discloses his involvement in the alleged offence
and rejected the application.
8. Learned counsel for the applicant reiterated the said
contentions and submitted that the applicant is the lawful
owner of the said vehicle. He is neither an accused nor his
PoA is named as accused in the said crime. He has no
…..5/-
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connection whatsoever with the said offence. Merely on the
basis of apprehension that the said vehicle may be used in
commission of crime, it is seized by the investigating officer
and, therefore, the order passed by the Special Court, without
considering the aspect that there is no involvement of the
applicant in the commission of the crime, is erroneous and
perverse and liable to be quashed and set aside.
9. In support of his contentions, learned counsel for the
applicant has placed reliance on following decisions:
1. Sunderbhai Ambalal Desai vs. State of
Gujarat, reported in 2002 0 Supreme (SC) 982;
2. Tarun Kumar Majhi vs. The State of West
Bengal, reported in 2025 Supreme (SC) 1612,
and(3) Bishwajit Dey vs. State of Assam, reported
in (2025)3 SCC 241.
10. Per contra, learned APP for the State has strongly
opposed the said contentions and submitted that the trial
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court in the order impugned considered that certificate of
registration prima facie shows ownership of the applicant
over the said vehicle. The said vehicle was kept in custody of
PoA Shaikh Amin Shaikh Hussain who resides at Akola. His
occupation is labour work. It is claimed that the applicant
and his PoA are good friends and acquainted with each other
and, therefore, the said vehicle was in his possession appears
to be improbable. There is no nexus between the
businessman residing at Thane and labour residing at Akola.
The offences for which the said vehicle is seized at the spot
are under NDPS Act for huge commercial quantity of
“Mephedrone” weighing 5.5. kilograms worth in crores. The
vehicle was used in transportation of the said “Mephedrone”
and, therefore, there is likelihood of use of the said vehicle in
future also in the similar type of offence and prays for
rejection of the application.
11. On hearing both sides and perusing the entire
investigation papers, it reveals that the FIR came to be
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registered against the accused persons on the basis of report
lodged by the PI Prakash Tunkalwar. As per the allegations,
on the day of the incident, i.e. 24.10.2024, he along with
other police officials were patrolling at Barshitakli. At the
relevant time, they received a secret information that on
Barshitakli-Mahagaon Road one person by name Mohd.Shafi
Mohd.Suleman is having his ginning factory. In the said
ginning factory, some persons are involved in manufacturing
“Mehedrone” and to manufacture the “Mephedrone” some
raw materials were called by them. He immediately along
with panchas visited the said ginning factory and found that
the said vehicle was parked in front of the said factory and
one person was keeping carton box in the said vehicle.
Therefore, they conducted a raid and during the raid, raw
materials used for preparation of “Mephedrone” were seized
in huge quantity. On the basis of the said FIR, the crime was
registered.
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12. During investigation, the said raw material was
seized as well as accused persons Adil Mohd.Shamim Ansari
resident of Mumbai, Pawan Manik Muddanar resident of
Mumbai, Firoz Khan Shabbir Khan resident of Akola, Nisar
Niyaji Mukhtar resident of Akot, and Mohd.Irfan Mohd.Yusuf
resident of Akola were found at the spot of the incident. At
the same time, the said vehicle was seized. During the
investigation, all seized materials are forwarded to the
Chemical Analyzer. The CA Report shows that Exh.1 white
colour crystalline powder stapled in polythene, brown colour
crystalline powder stapled in polythene, white colour
crystalline powder colcolourless liquid and pale yellowish
colourless liquid were forwarded for analysis. On analysis,
“Mephedrone” is detected in Exhs.1 and 2 i.e. vide colour
crystalline powder in a stapled polythene and brown colour
crystalline powder in Exh.3 and white colour crystalline
powder in Exh.4 mytheylpropiophenone is detected in
colourless liquid. “Methedrone” in Exh.5 i.e. colourless liquid
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and chloroform are detected. Thus, the CA Analysis Report
also supports the allegations that the raw material were used
for manufacturing of “Mephedrone”. Thus, there is no
dispute that the said vehicle was seized by the investigating
agency when it was found in front of the said ginning factory
where the raid was conducted.
13. Recital of the FIR further shows that where the raid
was conducted, one person was seen placing carton box in the
said vehicle. Therefore, the said vehicle was seized.
14. The present application is filed for releasing of the
said vehicle seized during the investigation of the said crime.
15. Section 451 of the CrPC deals with order for custody
and disposal of property pending trial in certain cases.
The said Section is reproduced below for reference:
“451. Order for custody and disposal of property
pending trial in certain cases.
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When any property is produced before any
Criminal Court during an inquiry or trial, the
Court may make such order as it thinks fit for the
proper custody of such property pending the
conclusion of the inquiry or trial, and, if the
property is subject to speedy and natural decay, or
if it is otherwise expedient so to do, the Court
may, after recording such evidence as it thinks
necessary, order it to be sold or otherwise
disposed of.”
16. Section 457 of the CrPC deals with procedure by police
upon seizure of property.
The said Section is reproduced below for reference as
under:
“457. Procedure by police upon seizure of property.
(1) Whenever the seizure of property by any police
officer is reported to a Magistrate under the provisions
of this Code, and such property is not produced before
a Criminal Court during an inquiry or trial, the
Magistrate may make such order as he thinks fit
respecting the disposal of such property or the delivery
of such properly to the person entitled to the
possession thereof, or if such person cannot be…..11/-
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ascertained, respecting the custody and production of
such property.
(2) If the person so entitled is known, the Magistrate
may order the property to be delivered to him on such
conditions (if any) as the Magistrate thinks fit and if
such person is unknown, the Magistrate may detain it
and shall, in such case, issue a proclamation specifying
the articles of which such property consists, and
requiring any person who may have a claim thereto, to
appear before him and establish his claim within six
months from the date of such proclamation.”
17. Admittedly, the crime is registered under the
provisions of the NDPS Act. Chapters-IV and V (Offences and
Penalties) of the NDPS Act are relevant which deal with
provisions as to disposal of seized narcotic drugs and
psychotropic substances.
18. Section 52A of the NDPS Act deals with disposal of
seized narcotic drugs and psychotropic substances.
The said Section is reproduced below for reference as
under:
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“52A. Disposal of seized narcotic drugs and
psychotropic substances.
(1) The Central Government may, having regard to
the hazardous nature, vulnerability to theft,
substitution, constraint of proper storage space or any
other relevant consideration, in respect of any
narcotic drugs, psychotropic substances, controlled
substances or conveyances, by notification in the
Official Gazette, specify such narcotic drugs,
psychotropic substances, controlled substances or
conveyance or class of narcotic drugs, class of
psychotropic substances, class of controlled
substances or conveyances, which shall, as soon as
may be after their seizure, be disposed of by such
officer and in such manner as that Government may,
from time to time, determine after following the
procedure hereinafter specified.
(2) Where any 3[narcotic drugs, psychotropic
substances, controlled substances or conveyances] has
been seized and forwarded to the officer-in-charge of
the nearest police station or to the officer empowered
under section 53, the officer referred to in sub-section
(1) shall prepare an inventory of such 3[narcotic
drugs, psychotropic substances, controlled substances
or conveyances] containing such details relating to
their description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars
of the 3[narcotic drugs, psychotropic substances,…..13/-
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controlled substances] or conveyances or the packing
in which they are packed, country of origin and other
particulars as the officer referred to in sub-section (1)
may consider relevant to the identity of the 3[narcotic
drugs, psychotropic substances, controlled substances
or conveyances] in any proceedings under this Act
and make an application, to any Magistrate for the
purpose of–
(a) certifying the correctness of the inventory
so prepared; or
(b) taking, in the presence of such magistrate,
photographs of [such drugs, substances or
conveyances] and certifying such photographs
as true; or
(c) allowing to draw representative samples of
such drugs or substances, in the presence of
such magistrate and certifying the correctness
of any list of samples so drawn.
(3) Where an application is made under sub-section
(2), the Magistrate shall, as soon as may be, allow the
application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the
inventory, the photographs of [narcotic drugs,
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psychotropic substances, controlled substances or
conveyances] and any list of samples drawn under
sub-section (2) and certified by the Magistrate, as
primary evidence in respect of such offence.”
19. Section 60 of the NDPS Act deals with liability of
illicit drugs, substances, plants, articles and conveyances to
confiscation.
The said Section is reproduced below for reference as
under:
“60. Liability of illicit drugs, substances, plants,
articles and conveyances to confiscation.
[(1) Whenever any offence punishable under this
Act has been committed, the narcotic drug,
psychotropic substance, controlled substance,
opium poppy, coca plant, cannabis plant,
materials, apparatus and utensils in respect of
which or by means of which such offence has
been committed, shall be liable to confiscation.
(2) Any narcotic drug or psychotropic substance
[or controlled substances] lawfully produced,
imported inter-State, exported inter-State,
imported into India, transported, manufactured,
possessed, used, purchased or sold along with, or
in addition to, any narcotic drug or psychotropic…..15/-
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substance [or controlled substances] which is
liable to confiscation under sub-section (1) and
the receptacles, packages and coverings in which
any narcotic drug or psychotropic substance [or
controlled substances], materials, apparatus or
utensils liable to confiscation under sub-section
(1) is found, and the other contents, if any, of
such receptacles or packages shall likewise be
liable to confiscation.
(3) Any animal or conveyance used in carrying
any narcotic drug or psychotropic substance [or
controlled substances], or any article liable to
confiscation under sub-section (1) or sub-section
(2) shall be liable to confiscation, unless the
owner of the animal or conveyance proves that it
was so used without the knowledge or connivance
of the owner himself, his agent, if any, and the
person-in-charge of the animal or conveyance and
that each of them had taken all reasonable
precautions against such use.”
20. Sub section (3) of Section 60 of the NDPS Act states
that any animal or conveyance used in carrying any narcotic
drug or psychotropic substance [or controlled substances], or
any article liable to confiscation under sub-section (1) or sub-
section (2) shall be liable to confiscation, unless the owner of
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the animal or conveyance proves that it was so used without
the knowledge or connivance of the owner himself, his agent,
if any, and the person-in-charge of the animal or conveyance
and that each of them had taken all reasonable precautions
against such use.
21. Second proviso to Section 63 of the NDPS Act states
that, “Provided further that if any such article or thing, other
than a narcotic drug, psychotropic substance, controlled
substance, the opium poppy, coca plant or cannabis plant is
liable to speedy and natural decay, or if the court is of opinion
that its sale would be for the benefit of its owner, it may at
any time direct it to be sold; and the provisions of this sub-
section shall, as nearly as may be practicable, apply to the net
proceeds of the sale.”
22. 451 of the CrPC deals with order for custody and
disposal of property pending trial in certain cases.
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23. Thus, provisions of Section 451 of the CrPC provide
for order for interim custody and disposal of property pending
trial is identical in case the property is subject to speedy and
natural decay and if it is otherwise in the interest of the
owners.
24. The provisions of Section 451 of the CrPC are not
applicable in view of decision in the case of Assistant
Collector of Customs vs. Shaikh Abdul Karim, reported in
1989 SCC OnLine Bom 33 wherein it has been observed that,
“The object of the Act is to see that the vehicle which is used
for such an offence is not made available to the persons who
have indulged in these activities. They shall not have the
benefit of such a vehicle. By and large if an accused person
himself is the owner of the vehicle and he uses such a vehicle
for the purpose of conveying the drugs, then of course, it is
possible for the prosecution to contend that it is against the
interest of justice that such a vehicle be given to the accused
pending the trial. But in a given case, it might be that a
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vehicle belonging to an innocent owner is stolen by the
accused, and in that event, later on, if the vehicle is
intercepted and seized by the officer, it does not mean that
such an owner has to wait till the trial is completed, for the
purpose of getting an order of return of the vehicle from the
Magistrate. In such cases, subject to a guarantee that the
vehicle becomes available for the purpose of confiscation, if
any, the Court has necessarily the jurisdiction to pass an order
for interim custody either u/s 451 or 457(1) of the Cr.P. Code,
as the case may be. An order u/s 451 or 457(1) of the Cr.P.
Code guarantees return of the vehicle at the time of the final
hearing of the matter, or as and when called upon by the
Court. It secures, subject to certain terms and conditions, the
interim custody of the vehicle, pending the trial. In fact, the
operation of section 451 or 457(1) of the Cr.P. Code comes
into existence only after the vehicle is seized and brought into
safe custody, as provided u/s 55 of the Act. If that is so, it
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cannot be said that section 451 or 457(1) of the Cr.P. Code is
not any way inconsistent with the scheme of the Act.”
25. Thus, there would be two yardsticks to be used, one in
case the person carrying the contraband is the owner of the
vehicle, that vehicle would not be given on interim custody to
its owner, and another in case some other person claims
ownership of the vehicle, the vehicle could be given to him by
way of interim custody.
26. Learned counsel for the applicant placed reliance on
the decision in the case of Bishwajit Dey vs. State of Assam
supra wherein this aspect is considered by the Hon’ble Apex
Court and it is observed, “assuming the petitioner is the
owner of the vehicle but the question whether the vehicle was
used without her knowledge or connivance is a question of
fact to be determined after evidence, if any, is produced in
proper inquiry. It may not be safe always to accept such a plea
as a gospel truth to give interim custody of the vehicle to such
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a person. Question remains that the vehicle in question was
used as a conveyance by the accused who is the husband of
the petitioner for carrying the contraband. There seems to be
no sound reason that if the owner is not entitled to interim
custody of such vehicle because the vehicle is liable to be
confiscated, why another person who may be the owner of the
vehicle should be given the custody of the vehicle during the
pendency of the case till he proves his non-complicity. As also
observed by the Bombay High Court, the purpose of the Act is
to see that the vehicle which is used for such conveyance is
not made available to the persons indulging in these activities.
Confiscation of the vehicle is an additional safeguard to
discourage this crime.”
27. Here, in the present case, the said vehicle is involved
in respect of contraband articles under the NDPS.
28. As per sub section (3) of Section 60 of the NDPS Act,
any animal or conveyance used in carrying any narcotic drug
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or psychotropic substance is liable to confiscation unless the
owner of the conveyance proves that it was so used without
the knowledge or connivance of the owner himself, his agent,
if any, and the person-in-charge of the animal or conveyance
and that each of them had taken all reasonable precautions
against such use.
29. There is no dispute that the said vehicle in question
was found to be involved in transportation of certain of
narcotics.
30. The contention of the present applicant is that the said
vehicle was in the custody of his PoA Shaikh Amin s/o Shaikh
Husain who is a resident of Akola, whereas, the applicant is
resident of Thane.
31. It is nowhere contention of the applicant that there is
some relationship between the PoA and the applicant and,
therefore, the said vehicle was in his possession. The said
vehicle was in possession of the said PoA and, therefore, the
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observations of the trial court, that it is difficult to accept that
out of the acquaintance, the said vehicle was in the custody of
PoA, at this stage.
32. The applicant is the registered owner of the said
vehicle. However, the contention of learned counsel for the
applicant, that due to the acquaintance, the said vehicle was
handed over to the said PoA, is not acceptable at this stage. It
is also not acceptable, at this stage, that the said vehicle was
not used in transportation of the said contraband articles.
The contention of the applicant that he is not the accused in
the said crime as well as PoA is also not accused and,
therefore, there is nothing on record to show that the said
vehicle was used in the commission of the crime, is also not
acceptable. Whether the said vehicle was used without his
knowledge or connivance, is a question of fact to be
determined after the evidence.
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33. Admittedly, there is no bar to hand over interim
custody of the seized vehicle under the NDPS Act. However,
at the same time, the apprehension, that the said vehicle can
be used in the similar type of the crime, cannot be rule out.
As observed by the Hon’ble Apex Court in the case of
Bishwajit Dey vs. State of Assam supra, that even assuming
the petitioner is the owner of the vehicle but the question
whether the vehicle was used without her knowledge or
connivance is a question of fact to be determined after
evidence, such plea cannot be accepted as a gospel truth to
give interim custody of the said vehicle to such a person. At
the same time, purpose behind sub section (3) of Section 60
of the NDPS Act is to be taken into consideration which
shows that the very purpose for engrafting sub-section (3)
of Section 60 of the NDPS Act is to have it as a deterrent
measure to check the offences under the Act in question
which have been found to be dangerous to the entire society.
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34. For all above these grounds, the order of rejection of
the application by the Special Court under the NDPS Act
appears to be proper and legal one. As such, the application
deserves to be rejected and the same is rejected.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 05/03/2026 18:04:21