Interim Release of NDPS-Seized Vehicles: Confiscation Risk Is Not a Bar; Release on Superdari with Inventory Safeguards under BNSS §497

1) Introduction

In ANJUM RAFIQ v. UT OF J AND K TH COMMISSIONER SECRETARY TO GOVERNMENT HOME DEPARTMENT JAMMU AND ANOTHER (Jammu & Kashmir High Court, decided on 06-07-2026), the petitioner—Anjum Rafiq, the registered owner of an i20 vehicle (JK12B-7073)—challenged an order of the Additional Sessions Judge (NDPS Cases), Rajouri, which had refused interim release of the vehicle seized in FIR No. 69/2025 for offences under Sections 8/21/22/25/29 NDPS Act.

The police alleged recovery of heroin-like substance (about 18/19 grams) from the dashboard area and asserted the vehicle was used to transport narcotics. The Trial Court rejected release primarily on the footing that the owner was allegedly involved and the vehicle was “required for confiscation.”

The High Court’s central issues were:

  • Whether the NDPS Act bars interim release of a seized conveyance pending trial.
  • How BNSS §497 (custody/disposal of property pending trial) operates alongside NDPS §§60(3) and 63 (confiscation regime).
  • What safeguards can ensure evidentiary needs and prevent misuse while avoiding deterioration of the vehicle in police custody.

2) Summary of the Judgment

The High Court allowed the criminal revision, set aside the Trial Court’s order dated 06.09.2025, and held that: mere liability to confiscation under NDPS §60(3) is not a legal bar to interim release. The Court directed release of the vehicle on superdari with stringent conditions:

  1. Preparation of video and still photographs plus identification documents, authenticated by the Investigating Officer, owner, and accused.
  2. An undertaking not to sell/transfer the vehicle during trial and to produce it within one week if directed, or pay its value (as determined per “Income Tax law” on the date of release) if ultimately ordered.

The Court emphasized that keeping vehicles in open police custody serves no purpose and causes avoidable loss through decay and depreciation.

3) Analysis

A) Precedents Cited

1. Bishwajit Dey V. The State of Assam (2025 INSC 32)

The petitioner relied on this Supreme Court decision to contend that interim release should not be refused mechanically in NDPS matters, particularly when safeguards can preserve evidence and the vehicle risks deterioration. The High Court’s approach aligns with this line of reasoning: release can be ordered with protective conditions and proper documentation.

2. Sunderbhai Ambalal Desai v. State Of Gujarat ., AIR 2003 Supreme Court 638

This is the High Court’s principal doctrinal anchor on interim custody of seized property (then under CrPC §451; now reflected in BNSS §497). The Supreme Court’s purposes—preventing owner loss, reducing custodial burden on police/courts, and substituting production with properly recorded inventories/panchanamas—were used to justify release with documentation safeguards.

3. Nirmal Singh vs State of Punjab (2023:PHHC:037265)

Cited for the pragmatic proposition that no useful purpose is served by leaving an NDPS-seized vehicle parked at a police station, and that release on superdari with undertakings better serves justice.

4. Khema vs State of Rajasthan (2026 INSC 12)

Treated as direct support for the key point: confiscation liability under NDPS §60 is not itself a ground to deny interim custody, provided reasonable conditions can secure production and protect the prosecution’s case.

5. 2003 C.L.J 3142 Orissa and 2002 C.L.J. 2605, Delhi

These authorities were used to reinforce the deterioration rationale and the compatibility of interim release with NDPS provisions, especially where trial delay can cause avoidable damage and depreciation.

6. Hoshar Singh vs State, Crimes 2011 Vol. IV 176 Allahabad (with reference to Basawa Kom Dyamangouda Patil vs State of Mysore, (1977) 4 SCC 358)

Cited for the principle that refusing release solely because the vehicle “may be confiscated” is legally unsound; if confiscation is ultimately ordered, the court can compel production. This supports the High Court’s corrective stance against the Trial Court’s confiscation-first refusal.

B) Legal Reasoning

1. BNSS §497: A structured, time-bound property-custody regime

The Court foregrounded BNSS §497 (custody and disposal of seized property during investigation/inquiry/trial), emphasizing its architecture:

  • Courts may order proper custody pending proceedings.
  • Courts must prepare a statement of property within a stipulated period, take photographs/videography, and these can serve as evidence.
  • Property should not remain in limbo; the provision contemplates timely decisions on disposal/delivery, particularly where decay is likely.

This statutory design directly supports interim release with robust documentation, rather than indefinite retention in police premises.

2. NDPS §§60(3) and 63: Confiscation is adjudicatory, typically post-trial, and owner-centric

The Court read NDPS §60(3) as creating liability to confiscation for conveyances used to carry narcotics, but with an important safeguard: the owner can avoid confiscation by proving lack of knowledge/connivance and reasonable precautions.

Under NDPS §63, confiscation is a judicial determination, ordinarily at the culmination of trial (conviction/acquittal/discharge), and it requires:

  • Judicial decision on liability to confiscation;
  • Opportunity of hearing to any person claiming rights in the property.

From this scheme, the Court derived a crucial operational point: the NDPS Act does not expressly curtail the criminal court’s power to grant interim custody. Confiscation is not a reason to keep the vehicle idle for the entire trial duration.

3. Harmonising NDPS with general criminal procedure (via NDPS §51)

The Court held that, in the absence of a specific NDPS bar, and in view of NDPS §51 (application of CrPC/BNSS procedure insofar as not inconsistent), the court may invoke BNSS §497 to order interim release. This is the core “interface” reasoning: NDPS confiscation provisions govern final outcome, while BNSS governs interim custody management.

4. Evidentiary concerns can be addressed by conditions, not by blanket refusal

While acknowledging that the vehicle can be material evidence, the Court held that evidentiary needs can be met through:

  • Video/still photographs authenticated by stakeholders;
  • Restrictions on transfer/alienation;
  • Undertakings to produce the vehicle when directed;
  • A value-based fallback (paying the assessed value if production is ultimately not possible).

This shifts the approach from “retain the vehicle to preserve evidence” to “preserve evidence through reliable substitutes and enforceable bonds.”

5. Correcting the Trial Court’s error

The Trial Court’s decisive premise—that involvement of the owner and prospective confiscation foreclose interim release—was held to be fallacious. The High Court treated this as an error of legal approach: confiscation is to be considered at final stage, after hearing claims, and interim custody can be granted even in NDPS cases.

C) Impact

  • Strengthens interim-release jurisprudence in NDPS cases: Trial courts in J&K/Ladakh are guided that NDPS confiscation provisions do not, by themselves, negate interim release where BNSS §497 conditions can safeguard the prosecution.
  • Promotes BNSS-compliant evidence substitution: The judgment practically implements BNSS’s emphasis on statements/inventories and photographs/videography as evidence, reducing reliance on physical retention.
  • Reduces property decay and rights-infringement: Recognises real-world conditions of police storage and prevents punitive depreciation of property before guilt is adjudicated.
  • Creates a template of conditions: The combination of authenticated visual inventory, non-alienation undertakings, time-bound production obligations, and value-security is likely to be adopted as a standard release protocol.
  • Signals that “owner involvement” is not an automatic disqualifier: Even where allegations implicate the owner, interim release may be granted if conditions adequately mitigate risks—leaving the final confiscation decision to trial conclusion under NDPS §63.

4) Complex Concepts Simplified

  • Superdari (Supardari): Temporary custody of seized property given to a person (often the owner) on a bond/undertaking to produce it when required and comply with conditions.
  • Confiscation (NDPS §60/§63): Permanent forfeiture to the State, ordered by a court after deciding legal liability and hearing claimants. Under §60(3), the owner can avoid confiscation by proving no knowledge/connivance and reasonable precautions.
  • Inventory / Panchanama / Videography as evidence: Instead of keeping the physical vehicle in court/police custody, the law permits a properly prepared record (description, photographs, video) to be used during trial.
  • BNSS §497 (successor to CrPC §451): The procedural power allowing courts to make orders for custody/disposal of property pending trial. The judgment treats this as fully usable in NDPS cases unless specifically inconsistent.
  • Revisional jurisdiction: The High Court’s supervisory power to correct illegality, impropriety, or jurisdictional error in subordinate court orders—used here to correct a legally flawed refusal of interim custody.

5) Conclusion

The decision establishes a clear operational rule for NDPS-seized conveyances: the possibility of confiscation under NDPS §60(3) is not, by itself, a lawful ground to refuse interim release. Courts can and should use BNSS §497 (read with NDPS §51) to prevent needless deterioration of property, while protecting the prosecution through authenticated visual inventories, non-alienation undertakings, and production/value-security conditions.

In broader context, the judgment advances a balanced NDPS procedural approach: it preserves the State’s confiscation power for final adjudication under NDPS §63, but prevents interim custody from becoming an unlegislated penalty through prolonged, decaying police storage.