Interim custody of seized mobile phones may be granted in NDPS cases subject to safeguards.

The police seized the petitioner’s Apple iPhone 13 (128 GB) in connection with a case registered under Section 8(c) read with Section 20(b)(ii)(B) of the NDPS Act and Section 25(1-B) of the Arms Act.

The petitioner sought interim custody under Sections 497 read with 503 of the BNSS, asserting ownership, the phone’s use for banking and contacts, and the risk of deterioration while in police custody.

The State opposed release on the grounds that the phone could be used to commit a similar offence or sold.

The Special Court dismissed the application, finding no proof of ownership and holding that the phone was liable to confiscation under Section 60(1) of the NDPS Act, subject to Section 60(3).

The petitioner produced a purchase receipt in his name before the High Court.

Whether the petitioner was entitled to have the Special Court’s order dismissing his application for interim custody of the iPhone set aside.

Sections 497, 498 and 503 of the BNSS govern, respectively, custody of property pending proceedings, disposal of property at the conclusion of proceedings, and police-seized property not produced before a criminal court; the provisions permit custody or delivery to a person entitled to possession, subject to appropriate conditions.

The explanation to Section 497 includes property alleged to have been used in an offence.

In Sunderbhai Ambalal Desai v. State of Gujarat, the Supreme Court held that seized vehicles should not be kept at police stations for long periods and may be released on appropriate bonds, guarantees and security.

Selvam v. State held that an applicant’s status as an accused should not, by itself, prevent consideration of an application for return of property.

In R. Manimaran v. State of Tamil Nadu, the Supreme Court recognised that the analogous CrPC provisions, or corresponding BNSS provisions, may be invoked in NDPS cases.

The High Court held that a mobile phone, like a vehicle, is property capable of interim release and that prolonged retention may result in deterioration; custody applications should therefore be considered judicially and expeditiously, even where the applicant is an accused.

The purchase receipt in the petitioner’s name supported his claim to possession.

The Court also noted that no confiscation proceedings had been reported and that the State reported no need for scientific examination of the phone.

It therefore found that interim custody could be granted subject to safeguards ensuring the phone’s preservation and production when required.

The petitioner’s application for interim custody was allowed on conditions: he must execute a bond for ₹30,000 with two sureties for the like sum, file photographs showing all sides of the phone, and provide an affidavit undertaking to produce it as and when directed.

The Special Court was directed to release the phone after compliance with those conditions.