Whether magistrate can release the vehicle seized in offence under POCSO Act?

Offence under Pocso Act is triable by session court. As per S 25 of Pocso Act,Magistrate is given only jurisdiction to record statement of victim.As per S 33 of Pocso Act, Session judge can directly take cognizance of offence without accused is committed to him.Session Judge can conduct trial as per provisions of CRPC. Hence I consider that magistrate can not release vehicle seized in Pocso Act.

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When vehicle seized in forest offence should not be released on supratnama?

 In that view of the matter, merely because the petitioner had made certain representations to the respondent-authorities for release of his vehicle whereby he has accepted his guilt and just because the petitioner has further clarified that the alleged commission of offence in question by his driver was because of the bona fide act of his driver, does not confer any right in him much less under the provisions of Indian Forest Act to claim release of vehicle immediately unless the inquiry as was proposed and conducted in the matter is completed. We are fortified in our view in light of the law laid down by the Hon'ble Apex Court in the case of State of Karnataka v. K. Krishnan, reported in MANU/SC/0512/2000 : AIR 2000 SC 2729. The Hon'ble Apex Court while dealing with the similar case, in paragraphs '7' and '8' observed thus:

7. Learned counsel appearing for the appellant-State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, catties, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and then-produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.

Citation: 2014(4)FLT821, 2014(5)MhLj286,2016 CRLJ(NOC)76 BOM

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 3805 of 2002

Decided On: 02.04.2014

 Sanjay Namdeorao  Suryawanshi   Vs.  State of Maharashtra

Hon'ble Judges/Coram:S.V. Gangapurwala and N.W. Sambre, JJ.

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When magistrate can release property seized under essential commodities Act?

 If the facts in the present case are analysed, it will be evident that in spite of the specific order being passed on 5th November, 1996 that as to whether any proceeding for confiscation is pending before the Collector, the learned A.P.P. could not make any statement before the learned Additional Sessions Judge and proceeded to argue the matter on 6th November, 1996. Thus it is evident that when the Court passed an order on 7th November, 1996, there was no confiscation proceeding pending under section 6A and/or under section 6C either before the Collector or before the State Government in respect of the essential commodity involved in the present matter. Shri Wahane makes a statement that on 7th November, 1996, such application has been preferred by the Police Station Officer to the Collector, Akola. However, no action thereafter also appears to have been taken by the Collector. The above statement itself points out that on date when the matter was heard and disposed of by the learned Additional Sessions Judge, Akola, there was no proceeding pending before the Collector under section 6-A for confiscation of the essential commodity and, therefore, as discussed above, there was no bar for the learned Additional Sessions Judge, Akola, to exercise his powers under section 457 read with section 451 of the Criminal Procedure Code and, therefore, the order passed by the learned Additional Sessions Judge is legal and proper.Bar contemplated Under Section 6E is not a absolute one. Once proceeding for confiscation commences Under Section 6A or 6 C, the bar operates and to that extent the general powers of the Criminal Court to dispose of the property is modified, affected and conditioned by provisions of Section 6E

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 22 of 1997

Decided On: 07.08.1997

The State of Maharashtra  Vs.  Manishkumar s/o Babulal Biyani

Hon'ble Judges/Coram:

S.B. Mhase, J.

Equivalent Citation: 1998BomCR(Cri)452, 1998(100(1))BOMLR760, 1998CriLJ303, 1998(1)MhLj431

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Supreme Court Judgment on releasing vehicle on supratnama seized under Gujarat Animal Preservation (Amendment) Act, 2011.

 It is true that Section 5(1) prohibits slaughtering of any animal without a certificate in writing from the Competent Authority that the animal is fit for slaughter. In other words, without a certificate from competent authority, no animal could be slaughtered. Sub-section (1A) to Section 5 mandates that no certificate under sub-section (1) shall be granted in respect of the abovementioned animals. In the said section, admittedly, ‘buffalo calf’ has not been mentioned as prohibited animal. In such circumstance, the prohibition relating to release of vehicle before a period of six months as mentioned in Section 6B(3) of the Amendment Act is not applicable since the appellant was transporting 28 buffalo calves only. In view of the same, it is not advisable to keep the seized vehicle in the police station in open condition which is prone to natural decay on account of weather conditions. In addition to the above interpretation, whatever be the situation, it is of no use to keep the seized vehicle in the police station for a long period.

Supreme Court of India

Multani Hanifbhai Kalubhai vs State Of Gujarat & Anr on 1 February, 2013

Bench: P. Sathasivam, Jagdish Singh Khehar

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Principles which Magistrate should follow for releasing Mhowa flower on Supratnama

 The learned Judicial Magistrate  was under obligation to consider 

(i)
the following issues :­
Whether   the   notification   issued   by   the   State   Government     was 
applicable to the  area  where the alleged contraband was found;
(ii)
Whether the Mhowa flowers  prima facie   appear to be the crop of the 
area where it  was found   or it was prima facie imported from other States like 
(iii)
Madhya Pradesh, Chhatisgarh;
Whether the petitioner   has     prima facie     established   that he   had 
capacity   to grow so much  quantity of Mhowa flowers in his field  where  he 
claims to have 50 trees of Mhowa,
Whether the petitioner  has documents to establish prima facie that part 
(iv)
of the  Mhowa flowers  were purchased by him from the local market. 


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

CRIMINAL  WRIT PETITION NO.  534  /2012 

Manohar  Gopal Kanoje  Vs  The State of Maharashtra 


CORAM:   M.L.TAHALIYANI,  J.
DATED :   23rd  November,    2012
Citation;2013 ALL M R (CRI)1375

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Whether magistrate should pass order pertaining to custody of property while considering C Summary Report?

 In view of distinction as above, it is difficult to swallow the contention of Advocate Shri Bilolikar that earlier order dated 14.2.2002 was an order under Section 457 of CrPC and therefore, the impugned order amounts to review and is illegal. Such an arguments is required to be rejected as devoid of any merits. On the contrary, earlier order being order under Section 451 of CrPC the Magistrate is obliged to suo motu pass the final orders pertaining to custody of the property when he may consider "C" summary for conclusion of the enquiry and investigation. In fact, even the impugned order is an order under Section 451 of CrPC because even in this order, the Magistrate has expected respondent No.1 to execute a bond and also undertaking to produce the vehicle before the Court if required. The final order would follow under section 452 of CrPC on conclusion of trial but in the present case, on conclusion of findings of the learned Magistrate on the report submitted by police for "C" summary.

Bombay High Court

Noorkhan S/O Jafarkhan vs Sk. Jakeer Sk. Akbar on 15 January, 2003

Equivalent citations: 2003 (2) ALD Cri 65, 2003 BomCR Cri

Bench: N Dabholkar

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When should Magistrate not ask for the execution of surety bond for releasing property on supratnama?

After   having   gone   through   the   facts   of   the   case   and   after

hearing both the sides and particularly considering the fact that the applicant

is permanent resident of Nagpur and is having his business place at Nagpur,

it was not necessary for the learned Magistrate to ask for sureties for return

of property belonging  to  the applicant/complainant, particularly when  the

conditions have been imposed to ensure production of property  Hence, the

order passed by  the learned Magistrate on 15th  December, 2012, as  far as

para No.2 of the said order is concerned, is modified as under ;

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATION (APL) NO.42 OF 2013

Shri Naresh Nemichand Kothari Vs The State of Maharashtra, 

CORAM : M.L. TAHALIYANI, J.

DATED   : 23rd JANUARY, 2013.

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Whether magistrate can release gold ornaments on supratnama in the absence of documentation in respect of it?

As far as respondent No.1 is concerned, it may be stated here
that   it   is   the   case   of   respondent   No.1   itself   that   the   seized   property
mentioned in  the  petition  belongs  to  the  petitioner.    The  whole  case  of
prosecution is  based on  recovery of  the property, which  according  to  the
prosecution, belongs to the petitioner.  
8. In view thereof, it was not necessary for the learned Magistrate
to ask for production of documents in respect of the ornaments claimed by
the petitioner.  The learned Magistrate should have taken note of the legal
position that the custody, if any, would have been an interim custody subject
to final order of the Court to be passed under Section 452 of the Code of
Criminal Procedure at the conclusion of trial.  


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.538 OF 2012

Smt. Alka  Shivram Fating VState of Maharashtra, 


CORAM : M.L. TAHALIYANI, J.
DATED   : 4th JANUARY, 2013.

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Whether Magistrate can release of vehicle on supratnama seized U/S 207 of the Motor Vehicles Act?

 The Counsel for the petitioner, however, relied on the decision of the single Judge of the Allahabad High Court in the case of Ram Sewak Jaiswal vs. State of U.P., 1996 Cri.LJ 1012. In that case, the Court opined that the Magistrate does not have power to release the vehicle under the Code of Criminal Procedure. We disagree with the said opinion. Inasmuch as, once the matter proceeds before the regular criminal Court as a criminal case and the vehicle is shown as property involved in the said criminal case, it is only the Magistrate who takes cognizance of the case, competent to issue directions regarding return of property till 

the said criminal case is finally disposed of and none else.

7. No doubt, Section 207 of the Motor Vehicles Act are special provisions but even so, a police officer or the person authorized by the State Government under the said enactment shall cease to exercise powers under section 207 of the Motor Vehicles Act qua the vehicle which is subject matter of criminal case of which cognizance is taken by the Court, consequent to the registration of offence and making the said vehicle as a crime property.

Bombay High Court

Shri Balu @ Dinkar Baburao Tambe vs State Of Maharashtra on 8 October, 2012

Bench: A.M. Khanwilkar, R.Y. Ganoo

citation; 2012(1) MH L J 86

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When magistrate should not release property seized under Essential commodities Act on supratnama?

 Section 6-C of the Act provides that appeal can be filed against the order of the Collector. Section 6-E shows that no Court or Tribunal can make order with regard to the possession etc. of the essential commodity so seized and also in respect of the vehicle if the essential commodity was being carried in a vehicle if the Collector starts confiscation proceedings. In criminal case also, there is presumption of culpable mental state available against the accused u/s 10-C of the Act if the offence requires existence of such culpable mental state.

8] In view of the aforesaid provisions, it becomes necessary for every Magistrate or other Court when a matter like present one comes before it to make necessary enquiry with regard to the compliance of Section 6-A of the Act. The Court or Magistrate of Tribunal is expected to bring to the notice of seizing officer that such report needs to be made to the Collector and it becomes necessary for the Magistrate or the Court as the case may be to make enquiry with the Collector as to whether the Collector is likely to take action u/s 6-A of the Act. So, the Magistrate cannot pass straightway the order of interim custody with regard to the essential commodity and even with regard to the vehicle before making such enquiry.

9] The defence of a person like transporter or contractor like the present one cannot be considered at this stage. The provisions of the Act show that the contravention is required to be proved only against the person who was found in possession of essential commodity and so, even at this stage, prima facie case needs to be made against the person from whose possession the

essential commodity and the vehicle are seized for contravention. This can be seen in Section 6-B of the Act. This Section provides that confiscation of essential commodity can be made by giving opportunity of being heard either to the owner or to person from whom the commodity is seized. Section 6-B [2] is in respect of the vehicle only and it is not in respect of the essential commodity. Under Section 6-B [2] of the Act, the owner of the vehicle has right to take defence that the vehicle was used for the purposes alleged by seizing officer without the knowledge or connivance of the owner. Thus, special powers are given to the Collector with regard to the commodity. Thus the J.M.F.C. has committed error in making the order of interim custody in favour of the present applicant. 

Bombay High Court

Haridas Pralhadrao Ghumare Vs State of Maharashtra on 20 June, 2012

Bench: T.V. Nalawade

citation;2012 CR L J (NOC)587 bombay

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Supreme Court judgment on release of currency Notes on supratnama

In the present case the appellant asserted that it had obtained'the currency notes in the normal course of its business and without any knowledge or suspicion of their having been involved in the commission of any offence. The respondents have not alleged fraud or lack of good faith on the part of the appellant. The appellant hence contended that the property in the currency notes, passed in its favour by mere delivery and the appellant "had a right to possess' the currency notes within the meaning of s. 517 of the Code of Criminal Procedure. We do not wish to express any concluded opinion in this case on the ultimate question of liability for payment of the money as between the appellant on the one hand and respondents 1 and 2 on the other. But we are of opinion that in the circumstances of this case the High Court should have directed the return of the said currency notes to the

appellant which had the "right to possess" the currency notes within the language of s. 517 of the Code of Criminal Procedure.

Supreme Court of India

State Bank Of India vs Rajendra Kumar Singh & Ors on 25 September, 1968
Equivalent citations: 1969 AIR 401, 1969 SCR (2) 216

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When Magistrate should not release Currency notes on Supratnama?

 Coming to the currency-notes, co-accused Parasmal again gave information on 27-8-1975 recorded in Ex. P/19. In this information Ex. P/19, he clearly stated that the stolen gold and silver ornaments were sold and he got his share of Rs. 7841/- from those sale proceeds. In consequence of this information, many stolen properties including the currency-notes of Rs. 7841/- were recovered from his house vide seizure, memo Ex. P/12. In Ex. P/19, he nowhere stated that these currency-notes were received by him from Meghamal. The investigating officer Sbri Pukhraj (P. W. 26) no doubt stated in his cross-examination that Meghamal told him that he had purchased gold ingots weighing 13 tolas. This statement is not sufficient to arrive at a conclusion that the currency-notes of Rs. 7841/- were the same currency-notes, which Meghamal gave to Parasmal. Moreover, Meghamal does not appear to be a bona fide purchaser. Meghamal is a resident of Jodhpur while Parasmal is a resident of Pachpadra. They belonged to different castes. Meghamal furnished no explanation as to how he purchased such a big quantity of gold nugget from Parasmal. Probably, Parasmal was known to Meghamal. Meghamal also did not produce ibis account books to justify his good faith and bona fides in making this purchasing of gold nugget weighing 13 tolas. Neither Parasmal nor Meghamal had any licence to deal in the business of sell and purchase of gold. Generally, the gold ornaments are sold and not gold ingots. When the gold ingots are sold, the purchaser is expected to satisfy himself by making proper enquiry that it is not a suspected article. After all, the gold ingots weighed 13 tolas. No such enquiry appears to have been made by Meghamal. He cannot be said to be an innocent purchaser, even if it is held that he purchased the gold ingots and paid the currency-notes of Rs. 7841/- to Parasmal. The claim of Meghamal fails on both the grounds viz., (1) he has not bona fide purchaser and (2) it does not stand proved that the currency-notes of Rs. 7841/- were the same, which he paid to Parasmal. As such, Meghamal is not entitled to get the currency-notes of Rs. 7841/-

Rajasthan High Court

Bal Kishan And Anr. vs State Of Rajasthan And Ors. on 3 January, 1984

Equivalent citations: 1984 CriLJ 308, 1984 WLN 36

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When court should not release seized property on Supratnama?

 The fact that the Court has power to dispose of property seized by the police but not yet produced before the Court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, specially when the stage of the case is in suspicion, the investigation is not over and charge-sheet has not yet been laid. The Court has to be circumspect in such a situation before releasing the property. [692 E-F] (b)Whenever the claimant asks for the property back, it does not mean that he should be given back the said property. That has to be decided on its own merits in each case and the discretion of the Court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of 'these seized- articles at the time of the trial. If the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return.

Supreme Court of India

Ram Parkash Sharma vs State Of Haryana on 18 April, 1978

BENCH:
KRISHNAIYER, V.R.
TULZAPURKAR, V.D.

Equivalent citations: 1978 AIR 1282, 1978 SCR (3) 691

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Bombay HC: Appellate or revisional Court must hear affected parties before the release of property on Supratnama

 When the appellate or revisional Court wants to vary the order of disposal of the property passed under section 453 or 454 of the Code of Criminal Procedure, 1973, it can do so after hearing all the parties affected by the proposed order. A third party claimant to the property would in such case entitled to a notice. Though this is not provided by any specific provision in the statute, it will have to be read in Chapter XXXIV of the Code of Criminal Procedure, 1973 since the basic rule of natural justice would require the Courts to comply with the said requirement. If the property is directed to be delivered to a third party or complainant in a case instituted on Police report, he will have to be issued notice, if the appellate or the revisional Court wants to vary that order and direct the return of the property to some other person. 

Bombay High Court

Bhikaji Tukaram Darade vs The State Of Maharashtra And Ors. on 29 September, 1993

Equivalent citations: 1994 (2) BomCR 518

Author: N Chapalgaonker

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Madhya Pradesh HC: Magistrate has no jurisdiction to release vehicle on supratnama which is seized for default of payment of motor vehicle tax

Jurisdiction cannot be assumed where none existed. No one then can say that it is there. Intention of statute is to secure payment of tax.

26. What thus, emerges can be summed up as under :-

(a) Taxation Authority or any officer authorised by state Government in this behalf can seize and detain a motor vehicle on "reason to believe" that there is fault or default in payment of amount of tax Under Section 16(3) of Adhiniyam. Even authorised officer, be it a Police Officer, has to operate under Adhiniyam and not Code.

Applicability of certain provisions of the Code for search or seizure is a matter of manner and procedure and does not render Section 451/457 of the Code operative in such cases.

(b) Application for release of the vehicle when seized and detained, lies to aforesaid authority and such authority is empowered to release on satisfaction that no tax is due in terms of Section 16(4) of the Adhiniyam. The "Object of Tax" is not liable to be frustrated.

(c) Aggrieved person can file an appeal Under Section 20 of the Adhiniyam on deposit of amount in question.

(d) Except Sections 451 and 457 of the Code, no other provision is shown to exist for the purpose. But Section 451 of the Code gets attracted only "when property is produced before any Criminal Court during any inquiry or trial" and is concerned with "proper custody of such property pending conclusion of the inquiry or trial". Section 457 of the Code comes into play when seizure is by a Police Officer who reports to a Magistrate under the Code. It empowers the Magistrate to make an order respecting disposal or delivery "to the person entitled to the possession thereof". On seizure Under Section 16(3), Section 451 is inapplicable till stage of inquiry or trial in a Criminal Court and Section 457 of the Code cannot be invoked unless seizure is by a police officer and is reported under the Code and some one is "entitled". Person in arrear and in error is not prima facie "entitled." These two Sections, thus, do not apply till requisite conditions are shown to be satisfied. At the infant stage, recourse to Criminal Court is impermissible. Hence, only Section 16(4) and Section 20 of Adhiniyam held to be efficacious are applicable. This power cannot be usurped by any Criminal Court.

(e) "Statutory Forums" have to be approached. Resort to Section 451 or 457 of the Code is thus, impermissible. The Criminal Court thus, does not possess jurisdiction to entertain prayer for interim release of the vehicle and grant relief under the Code. Section 19 or Rules do not indicate existence of jurisdiction of Criminal Court in case of action Under Section 16(3) of the Adhiniyam.

27. Despite Section 16(4) and 20 of Adhiniyam, the Non-applicant resorted to Forum under the Code and the Criminal Court held the prayer irrecusable and granted relief of release of the vehicle under umbrella of Brahmanand's case (supra). The non-applicant, thus, shaped the case under the Code on assumption that "jurisdiction was there" on the pattern assumed by the great British explorer, George Mallory. Once he was asked as to why did he want to climb Mount Everest? To that question he had replied "Because it is there". Now we resolve the conflict and conclude that "Criminal Court has no jurisdiction in the light of Section 16(4) and 20 of the Adhiniyam for interim release of motor vehicle seized and detained by the specified authority Under Section 16(3) on Supratnama and/or surety as was done in this case". SEIZURE IS FOR TAX.

Madhya Pradesh High Court

State Of M.P. vs Rakesh Kumar Gupta on 21 April, 1998

Equivalent citations: 1998 (2) MPLJ 249

Author: A Tiwari

Bench: R Shukla, A Tiwari, N Jain

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Whether a court can release vehicle on Supratnama to power of attorney holder of owner of vehicle?

Annexure-II power of attorney executed by Daisy, claiming to be the registered owner of the Crmc 3317/09 2

vehicle KL.05.V.2601 seized in crime No.149/2001 of Peruvanthanam police station, appointing petitioner, her husband as her power of attorney shows that petitioner, power of attorney holder was authorised by his wife to file an application and take the vehicle from court on her behalf. Hence dismissal of the petition on the ground that the petitioner has no authority to execute the bond is unsustainable.

Kerala High Court

P.V.Joy, S/O.Varkey vs State Of Kerala Rep.By on 30 October, 2009

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

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