Clarifying that Section 27A Penalizes Only Financing or Harbouring with Continuity; Confirming Trial Courts’ Power to Release Vehicles Pending Confiscation
Summary
| Category | Data |
|---|---|
| Case Name | CRM(M)/157/2025 of MOHD ASLAM Vs UT OF J AND K; TH INCHARGE S.H.O. POLICE STATION VIJAYPUR SAMBA CNR JKHC020010022025 |
| Date of Registration | 27-02-2025 |
| Decision Date | 19-08-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | HON’BLE MR. JUSTICE RAJESH SEKHRI |
| Court | High Court of Jammu & Kashmir and Ladakh |
| Bench | Single Judge |
| Precedent Value | Binding on subordinate courts; persuasive for other High Courts |
| Overrules / Affirms |
|
| Type of Law | Criminal Law – NDPS Act, 1985; Bharatiya Nagarik Suraksha Sanhita, 2023 |
| Questions of Law |
|
| Ratio Decidendi | The Court held that Section 27A, by its own terms, penalizes only those who finance illicit traffic or harbour offenders, defined against the backdrop of continuously assisting or sheltering drug operations (Section 2(viiib) and Section 27A read harmoniously). A one-off sale or purchase does not constitute “financing” or “harbouring.” Consequently, the charge under Section 27A must be set aside when based solely on a single transaction. Further, under Section 51 BNSS (CrPC analogues) and Sections 60/63 NDPS Act, trial courts have inherent jurisdiction to release vehicles on interim custody, subject to conditions, even when confiscation is possible post-trial. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court |
|
| Facts as Summarised by the Court | At a Vijaypur naka, police arrested Mohd Aslam in a Maruti Swift (JK09P/1912). Frisking found ~16.82 g heroin in his pocket, ₹6.13 lacs and an electronic weighing machine on the dashboard. Investigation revealed this was a money-collection trip for Zakir Hussain’s earlier heroin consignment. FIR 99/2024 under Sections 8/21/22/27A/60 NDPS Act was registered; car seized; final report filed 19.09.2024. Petitions challenged the Section 27A charge, bail refusal, and vehicle-release denial. |
| Citations | Reportable; reserved 01.08.2025; pron. 19.08.2025; para 21–23 key; CNR: JKHC020010022025 |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate and special NDPS courts in Jammu & Kashmir and Ladakh |
| Persuasive For | Other High Courts considering Section 27A charges or interim release of seized vehicles; Supreme Court on property custody under NDPS Act |
| Overrules | Trial court’s framing of Section 27A charge based solely on a single sale transaction |
| Distinguishes | Calcutta HC’s Rakesh Singh ruling on financing requires continuous trafficking (applied to this petition) |
| Follows | Bishwajit Dey v. State of Assam (2025 SCC OnLine SC 40) on interim release of vehicles; Sunderbhai Ambalal Desai on Sections 451/457 CrPC power |
What’s New / What Lawyers Should Note
- Section 27A NDPS Act targets only those who provide monetary support (financing) or shelter (harbouring) to ongoing drug-trafficking activities, not a one-off sale or purchase.
- Trial courts must independently analyze final-report materials—cannot accept prosecution story as gospel—before framing Section 27A charges.
- Vehicles seized under NDPS Act are eligible for interim release under Sections 451/457 CrPC (BNSS Sections 497/503), even if liable for confiscation at trial’s end.
- Proper hypothecation or financing records (e.g., bank-loan over registration certificate) can prima facie prove an owner’s lack of criminal link, supporting vehicle release.
- This decision supplies binding authority to oppose Section 27A charges based on isolated transactions and to advance applications for interim custody of seized property in NDPS cases.
Summary of Legal Reasoning
- Charge-stage scrutiny: Trial courts must sift and weigh prosecution evidence in the final report; framing charge is judicial discretion, not formality (citing Prafulla Kumar Samal, Chitresh Kumar Chopra).
- Statutory harmony: Section 27A must be read with “illicit traffic” definition in Section 2(viiib)(i)-(v); activities in Sub-section (iii) (sale/purchase) differ from “financing” or “harbouring.”
- Dictionary definitions: “Finance” denotes provision of funds/support, beyond mere sale consideration; requires continuity and regularity (Chambers, Black’s, Oxford).
- Continuity requirement: Solitary transactions do not amount to financing illicit traffic; drawing on Rakesh Singh.
- Vehicle release jurisdiction: Under Sections 60/63 NDPS Act and Sections 451/457 CrPC (via BNSS), trial courts retain power to grant interim custody of vehicles even if confiscation is possible post-trial (Bishwajit Dey; Sunderbhai Ambalal Desai).
Arguments by the Parties
Petitioner – Mohd Aslam
- Single transaction of heroin sale does not equal “financing” under Section 27A.
- No material he harboured offenders or financed any activity beyond sale.
- Trial court accepted prosecution allegations without scrutiny.
- 16.82 g is intermediate quantity; Section 37 NDPS Act (no bail) not attracted.
- Over four months’ custody breaches speedy-trial guarantees under Article 21.
Petitioner – Hassan Din (vehicle owner)
- Vehicle financed by a bank (Cholamandalam & Finance Co. Ltd.), not via drug proceeds.
- No contraband found in his personal or vehicle possession beyond driver’s pocket.
- Denial of interim custody deprived him of registered-owner rights pending any confiscation proceedings.
Respondent – UT of J&K
- Gravity of NDPS offences demands sparing use of inherent jurisdiction to quash charges or release property.
- Trial court’s decisions on charge-framing and vehicle custody within limits; inherent jurisdiction should be exercised cautiously.
Factual Background
On 17 May 2024 at ~1848 hrs, a Samba police naka intercepted a Maruti Swift (JK09P/1912). Driver Mohd Aslam was frisked: 16.82 g of heroin was found in his pocket; ₹6.13 lacs and a digital scale lay on the dashboard. Investigation revealed he was collecting payment for a prior consignment on behalf of Zakir Hussain. FIR 99/2024 under Sections 8/21/22/27A/60 NDPS Act was registered and the vehicle seized; final report filed 19.09.2024.
Statutory Analysis
- Section 2(viiib) NDPS Act: defines “illicit traffic” to include cultivation, production, sale, purchase, transport, etc., and expressly includes “financing” and “harbouring” as distinct sub-clauses.
- Section 27A NDPS Act: penalizes “financing illicit traffic” or “harbouring” with stringent imprisonment (10–20 years + fine). Sale/purchase falls under Sections 20–23, not 27A.
- Sections 60/63 NDPS Act: Conveyances used in offences are liable to confiscation post-trial, subject to owner’s challenge.
- Section 51 BNSS / CrPC applicability: Sections 497/503 BNSS (CrPC 451/457) permit interim custody and disposal of seized property not inconsistent with NDPS Act.
- Section 528 BNSS: Inherent jurisdiction for quashing proceedings is to be exercised sparingly, with full record analysis.
Dissenting / Concurring Opinion Summary
No separate opinions were recorded.
Procedural Innovations
- Clarified trial courts’ duty to undertake a mini-evaluation of final‐report material before framing charges under NDPS Act.
- Affirmed the import of BNSS Sections 497/503 (CrPC 451/457) for interim custody applications in NDPS cases, despite potential confiscation.
- Emphasized the distinct roles of investigating officers (notice under Section 68E/F) vs. competent authority (forfeiture under Section 68I).
Alert Indicators
- ✔ Precedent Followed – judicial scrutiny at charge stage; interim release of vehicles
- 🚨 Breaking Precedent – Section 27A cannot be invoked for a single contraband transaction
- 🔄 Conflicting Decisions – harmonizes trial court practice with Bishwajit Dey (SC)
Citations
- (1979) 3 SCC 4 (Union of India v. Prafulla Kumar Samal)
- (2009) 16 SCC 605 (Chitresh Kumar Chopra v. State, NCT of Delhi)
- 2022 SCC OnLine SC 828 (State of W.B. v. Rakesh Singh)
- AIR Bom 2020 1252 (Rhea Chakraborty v. Union of India)
- (2002) 10 SCC 283 (Sunderbhai Ambalal Desai v. State of Gujarat)
- 2023 (1) RCR (Cr.) 869 (Sainaba v. State of Kerala)
- 2021 SCC 315 (Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra)
- 2025 SCC OnLine SC 40 (Bishwajit Dey v. State of Assam)