Whether Magistrate can release vehicle seized under NDPS Act?

By way of amendment, the scope of S.52A has undergone some

changes. S.52A(1) after the amendment reads as under:-

“(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.”

4. The main contention urged by the learned counsel for

petitioners is that the conveyances involved in transportation of

narcotic drugs or psychotropic substances may not belong to the

actual transporter, in which event, confiscation and destruction

by the competent officer without any enquiry in that regard may

affect the rights of the owner of such vehicle. In fact, S.63 of the

Act had provided for a procedure in making confiscations. S.63

gives the power to the Court to decide whether any article or

thing seized under the Act is liable to be confiscated in terms of

Sections 60, 61 or 62 of the Act. Before the amendment to

Section 52A, conveyance was not included as an item which

should be seized and disposed. The very fact that conveyance

had been incorporated in the amendment itself indicates that the

Government intended to provide a special procedure to deal with

such conveyance, while taking into account the fact that most of

the transportation are done in conveyances which itself is defined

u/s 2(viii) as meaning “a conveyance of any description

whatsoever including any aircraft, vehicle or vessel.” Therefore, if

any vehicle is involved in transportation of narcotic drug,

psychotropic substance or controlled substance, such vehicles

also could be seized and disposed of in terms of S.52A(1) of the

Act. S.63 was a special procedure available at the inception of the

Act and when the statute had been amended giving the power of

disposal of narcotic drugs, psychotropic substances, controlled

substances or conveyances to a special officer, he will have to act

in accordance with the procedure prescribed under the Act or the

Rules framed thereunder.

5. When a Special Act prescribes the procedure for

dealing in specified goods and the NDPS Act being a special

statute and latter in time, the provisions of the special statute

has to be followed by the Magistrate. In other words, the

Magistrate may not have jurisdiction to entertain a petition u/s

451 of Cr.P.C. in the light of the special provision made u/s 52A of

the NDPS Act. Apparently, in such instances,

going by the statutory provision under the Special Act, the power

of the Magistrate to consider a claim u/s 451 of Cr.P.C. stands

denuded.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Present:

 MR.JUSTICE A.M.SHAFFIQUE

&

 MR.JUSTICE N.ANIL KUMAR

Crl.Rev.Pet No.1440/2018

SHAJAHAN Vs  INSPECTOR OF EXCISE

Dated this the 28th day of October 2019

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Whether transferee of vehicle is entitled to get benefit of insurance policy if there is theft of vehicle?

The relevant observations made by the
Hon'ble Supreme Court in para 10 of its judgment in Mallamma's case
(supra), which can be gainfully followed in the present case, read as under:-
“Before us, learned counsel for the appellants
relying upon Section 157 of the M.V. Act, contended that
there is an admitted transfer of ownership of the vehicle as
proved before the Commissioner. Once the ownership of
the vehicle is admittedly proved to have been transferred to
Jeeva Rathna Setty, the existing insurance policy in respect
of the same vehicle will also be deemed to have been
transferred to the new owner and the policy will not lapse
even if the intimation as required under Section 103 of the
M.V. Act is not given to the insurer, hence the impugned
order passed by the High Court is contrary to law. In
support of this contention, learned counsel for the
appellant has relied upon a judgment of this Court in G.
Govindan Vs. New India Assurance Co. Ltd . (1999) 3
SCC 754.”
When the abovesaid ratio of the law laid down in Mallamma's
case (supra), is considered in the factual context of the present case, same
squarely applies in favour of respondent No.1 and against the petitioner-

Insurance Company. In this view of the matter, it can be safely concluded
that learned Permanent Lok Adalat was well justified, while placing reliance
on the judgment of the Hon'ble Supreme Court in Mallamma's case (supra)
and the impugned order deserves to the upheld for this reason also.
 IN THE HIGH COURT OF PUNJAB AND HARYANA
 AT CHANDIGARH
Civil Writ Petition No. 14086 of 2016
Date of Decision: 11.8.2016
The Oriental Insurance Company Limited and others

Vs.
Abhishek Kumar and another

CORAM :  MR. JUSTICE RAMESHWAR SINGH MALIK
Citation: 2017(2) ALLMR(JOURNAL)23

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Whether insurance company can repudiate insurance claim for theft of vehicle if theft is not promptly intimated?

 We have considered the rival contention and perused the record. On perusal of complaint we find that it is the case of the complainant that he reported the theft of subject vehicle to the concerned Police Station on the same day and gave oral information of theft to the petitioner insurance company. It is not the case of the complainant that he gave immediate intimation of theft of vehicle in writing to the insurance company. Thus, the question is whether the Fora below were justified in allowing in the consumer complaint ignoring condition no. 1 of the insurance contract, which reads as under:

“1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.”

 8. Similar issue came up before the Coordinate Bench of this Commission in the mater of Reliance General Insurance Co. Ltd. v. Jai Prakash, Revision Petition No. 2479 of 2015 decided on 11.01.2016. In the said matter, the Coordinate Bench of this Commission took the view that on account of failure of the complainant to perform his contractual obligation to intimate the theft of vehicle to the insurer, repudiation of contract was justified. Similar view was taken by Bench No. 4 of this Commission in Revision Petition No. 2391 of 2015 titled Reliance General Insurance Co. Ltd. v.Harbhajan Khaira.

 9. We do not find any reason to differ with the aforesaid view taken by Coordinate Benches. Accordingly, we hold that Fora below have committed a grave irregularity by passing the impugned order in utter disregard of law laid down by the Supreme Court of Parvesh Chander Chadha (supra). Thus, we have no hesitation in holding that as the insured has failed to fulfil his obligation to intimate the theft of vehicle to the insurer in writing immediately after the theft, insurance company was justified in repudiating the insurance claim.

National Consumer Disputes Redressal Commission, New Delhi

(Before Ajit Bharihoke, Presiding Member and S.M. Kantikar, Member)

Reliance General Insurance Co. Ltd.

V

Arun Kumar Singh & anr.

Revision Petition No. 1054 of 2016

Decided on January 3, 2017

Citation:2017 SCC OnLine NCDRC 1

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Whether magistrate can release vehicle seized under essential commodities Act on supratnama?

It will be apposite to refer to the Judgment of the Apex

  Court in State of West Bengal & Others v. Sujit

  Kumar Rana 2004 KHC 942, at this juncture. In the

  said case in para materia provisions in the Forest Act,

  1927 were considered by the Apex Court and in paragraph

  31 of the said judgment it was held as follows:


          "31. The said authority before passing a final order

          in terms of S.59-A (3) of the Act is required to issue

          notice and give opportunity of hearing to the parties

          concerned.     Unless such a notice is issued, the

          confiscation proceedings cannot be said to have

          started. Once, however, a confiscation proceeding

          is initiated; in terms of S.59-G of the Act, the

          jurisdiction of the criminal court in this behalf stands

          excluded. The criminal court although indisputably

          has the jurisdiction to deal with the property which

          is the subject matter of offence in terms of the

          provisions of the Code of Criminal Procedure but

          once a confiscation proceedings is initiated, the said

          power cannot be exercised by the Magistrate.

          ( emphasis supplied)

  
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                MR. JUSTICE RAJA VIJAYARAGHAVAN V

                FRIDAY, THE 15TH DAYOF JULY 2016

                                          Crl.MC.No. 3415 of 2016
                                       

                     BIJU SEBASTIAN,   Vs   STATE OF KERALA,
                    

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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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Whether auction purchaser of vehicle is liable to pay tax and penalty for pre auction period?

In view of the analysis being made, this Court is of the considered opinion that for the period the vehicle was in custody of the enforcement agency and subsequently, following a confiscation proceeding the auction purchaser having purchased the same free from all encumbrances by making a harmonious consideration of the provisions contained in Sections 3 ,10,12 of the 1975 Act read with Section 56 and Section 64(2) of the 1972 Act, the auction purchaser is not liable to pay the tax and penalty demanded by the Transport Authority for the pre auction period. From the date auction purchaser purchased the vehicle and possessed the same, the tax can be leviable in conformity with the provisions of 1975 Act. The question no.(i) is answered accordingly.

Orissa High Court

Ishwar Chandra Prusti vs R.T.O. Sambalpur And Others on 5 February, 2015

Citation; AIR 2015 Orissa 82

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Whether insurer can avoid his liability if validity of fitness certificate or permit of vehicle has expired?

In order to enable the insurance company to take up the defence under Section 149(2)(a)(i)(c) it must be shown that the use of the transport vehicle was for a purpose not allowed by the permit under which the vehicle was used. Instances may occur where transport vehicles intended or permitted for a particular purpose are used for another purpose. For example, if a transport vehicle permitted only for carrying goods, carries passengers and capsizes en route causing injuries to the passengers, certainly, the insurer can take up the defence under Section 149(2)(a)(i)(c). However, if such a vehicle is used only for the permitted purpose, and the accident occurs when the permit or fitness certificate ceased to exist, it amounts to a technical violation only, which will not entitle the insurer to disown the liability to third parties. For avoiding the liability relying on Section 149(2)(a)(i)(c), the insurer should plead and prove that the offending vehicle was used for a purpose not authorised by the permit. It is true, that the vehicles in these cases ceased to have fitness certificate as well as permit on their expiry. We are unable to agree that the breach of condition in respect of non-renewal of certificate of fitness or permit would entitle the insurer to take up the defence under Section 149(2)(a)(i)(c) of the Act. We are of the definite view that Thara v. Syamala (cited Supra) does not lay down the correct law. In both these cases, there is no contention by the insurer that the vehicles were used for a purpose not allowed by the permit. There is nothing on evidence to show that the breaches alleged were fundamental breaches which have contributed to the cause of the accident. In the absence of any evidence to show that the breach was so fundamental as to lead to the accident, there cannot be an automatic direction to allow the insurance company to recover the amount from the owner. Therefore, on facts also the appellants are entitled to succeed.

In the result, the reference is answered and the appeals are disposed of as under:

(a) We hold that the insurer cannot claim exoneration from its liability to indemnify the owner of a vehicle in respect of injuries to third parties if the vehicle gets involved in the accident after the expiry of period of validity of fitness certificate or permit, merely on account of such technical violations.

Equivalent Citation: AIR2015Ker131, 2015 (2) KHC 219, 2015(2)KLJ392, 2015(2)KLT139

IN THE HIGH COURT OF KERALA

M.A.C.A. Nos. 2526 of 2009 and 2507 of 2010

Decided On: 04.03.2015

Appellants: Augustine V.M.
Vs.
Respondent: Ayyappankutty and Ors.

Hon'ble Judges/Coram:T.R. Ramachandran Nair, A.V. Ramakrishna Pillai and P.V. Asha, JJ.

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Whether Magistrate has jurisdiction to grant custody of vehicle seized for commission of offence u/S 3/7 of the EC Act, 1955?

The aforesaid analysis of statutory provisions and the principles of
law laid down by their Lordships of the Supreme Court in the above
referred cases (supra) would show that whenever any essential
commodity is seized, under an order made in exercise of power conferred
by Section 3 of EC Act, in relation thereto no court, tribunal or authority
shall have jurisdiction to make any order with regard to possession,
delivery, disposal, release or distinction of such essential commodity save
and except the Collector pending confiscation under Section 6A of the EC
Act, 1955, therefore, in the matter of making orders with regard to
disposal of seized vehicle in pursuance to order made under Section 3 of
the Act, only the Collector or judicial authority, as the case may be, shall
have any jurisdiction to make orders with regard to the disposal of that
vehicle/essential commodity seized in pursuance of order made under
Section 6E of the EC Act, 1955 and jurisdiction of Magistrate to grant
custody under Section 457 is expressly barred.

HIGH COURT OF CHHATTISGARH

Single Bench: Hon’ble Shri Justice Sanjay K. Agrawal

Cr.M.P. NO . 1068 of 2014
PETITIONER Vishnu Prasad Vaishnav
Versus
RESPONDENT State of Chhattisgarh

(Passed on 17. 12.2014)
Citation;2015 CRLJ 961 Chhatis

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Whether criminal court can release vehicle on supratnama seized under mines Act?

A. Mines and Minerals (Development and Regulation) Act, 1957 - Section 21(4)--District Collector has no power to pass orders regarding custody or confiscation of property seized under S. 21(4). Any order regarding property seized under S. 21(4), including confiscation orders, will have to be passed by the Court having jurisdiction.

B. Criminal Procedure Code, 1973 - Section 457--Orders passed under S. 457 Cr.P.C. to manage the particular situation will not stand in the way of passing appropriate final orders.

 Any way, when the property continues in the custody of police without legal action, some orders will have to be passed regarding custody of the property. When there is actually a complaint brought under Section 22 of the Act, the question of interim custody will have to be first decided by the learned Magistrate having jurisdiction. This Court cannot interfere at that stage. But here, there is admittedly no prosecution, and it is submitted that the police has only been thinking of filing a prosecution in the appropriate court. This Court cannot wait indefinitely. It is not known when the police will bring prosecution. The person having right to possess the vehicle, as registered owner or otherwise, will have to be given custody, subject to orders to be passed by the competent court, in case prosecution is brought. If the police does not think of bringing a prosecution, the orders passed regarding custody of property will have force as a final order. However, if prosecution is brought by the police under Section 22 of the Act, final orders will have to be passed by the competent court. Orders passed under Section 457 Cr.P.C. to manage the particular situation will not stand in the way of passing appropriate final orders. In case such a prosecution proceeds and a decision comes on full trial, the court can pass orders under Section 21(4A) of the Act, or under Section 452 Cr.P.C. Even in a case where the offence is compounded pending prosecution, the court trying the offence can pass orders regarding property under Section 452 Cr.P.C. when Section 23A(2) provides that no proceeding or further proceeding shall be taken against the offender in respect of offence so compounded.

8. In the above factual situation where some orders are found necessary by this Court, I find that the property can be released to the petitioner on strict conditions, of course subject to final orders to be passed by the competent court in case prosecution is brought under the Act. The police or the parties cannot wait in vain, when the authority before whom report is made has no authority to act and pass orders. It is in such a situation, orders are felt necessary in the interest of justice, by this Court.

IN THE HIGH COURT OF KERALA

Crl. R.P. No. 1487 of 2014

Decided On: 02.09.2014

Appellants: Anfar
Vs.
Respondent: State of Kerala

Hon'ble Judges/Coram:P. Ubaid, J.

Citation: 2015CriLJ103, 2014 (4) KHC 210, 2014(4)KLJ27,2015(1) crimes279 kerala

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Whether Vehicle seized under Mines and Minerals (Regulation and Development Act), 1957 can be released on supratnama?

Brief facts necessary for disposal of the present petition are to the effect that FIR No.04 dated 07.01.2013, under Sections 21 (1) and 4 (1) of Mines and Minerals (Regulation and Development Act), 1957 read with Section 188 of the Indian Penal Code was registered at Police Station Anandpur Sahib, District Rupnagar, wherein, the vehicle bearing registration No.HP-72-1201 registered in the name of the petitioner was taken into police possession alongwith other vehicles. The petitioner moved an application for release of the vehicle bearing registration No.HP- 72-1201 on superdari through his power of attorney claiming himself to be the registered owner of the vehicle.1
This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. Since the vehicle in question, being a source of livelihood of the petitioner and its non-release would affect the entire family, it would be in the interest of justice to release the vehicle in question on superdari. Since another vehicle involved in the same very FIR has already been released on superdari by learned Additional Sessions Judge (FTC), Ad hoc, Ropar vide order dated 28.02.2013 (Annexure P-5), in order to maintain parity, this vehicle is also required to be released on superdari. Keeping in view the above and the dictum of the Hon'ble Supreme Court, the instant petition is allowed and the impugned orders (Annexure P- 2) and (Annexure P-4) are set aside. The vehicle in question is ordered to be released on superdari to its registered owner or his duly authorized CRM M-9981 of 2013 5 representative, on furnishsing superdari/indemnity bonds to the satisfaction of Illaqua/Duty Magistrate, Anandpur Sahib specifically subject to the condition that it will not be involved in the activity of taking away of mines minerals etc. during the pendency of trial. The Court will be at liberty to impose other conditions which it may deem fit and proper.

Punjab-Haryana High Court

Pragya Raj Sharma vs State Of Punjab on 23 April, 2013

CORAM:HON'BLE MR. JUSTICE PARAMJEET SINGH

Citation; 2013 CR L J(NOC) 639 (P&H)

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