https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=461073 https://www.taxtmi.com/caselaws?id=461073 Challenge to interim release of the vehicle by the learned court - recovery of alleged contraband articles from the ship or not - legality in considering the application of the Petitioner-Shipping Company under Section 457 of Cr.P.C. for interim release of the vessel - validity of terms and conditions subject to which the vessel was directed to be released interimly in favor of the shipping company. Legality in considering the application of the Petitioner-Shipping Company under Section 457 of Cr.P.C. for interim release of the vessel - HELD THAT:- The language employed in Section 457 of Cr.P.C. is self- explanatory. Therefore, the same does not call for an in-depth analysis. Moreover, Section 457 of Cr.P.C. has been elaborately discussed and analysed in various judgments delivered by the Hon ble Supreme Court as well as this Court. Undisputedly, the provision contained in Section 457 of Cr.P.C. is a procedural provision to be followed by the police upon seizure of property. The first sub-Section provides whenever the seizure of the property is reported to a Magistrate and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may pass such order as he thinks fit respecting the disposal or delivery of such property to the person entitled to the possession thereof, and if such person cannot be ascertained, respecting the custody and production of such property. A duty is cast upon the Magistrate to pass necessary orders once the property is seized and reported to such Magistrate. Moreover, discretion has been vested with the Magistrate for disposal of such property or delivery of such property to the person entitled to the possession thereof. If the owner of the property is known, then the order shall be passed with regard to the disposal of such property and if the owner is unknown, then such order shall be passed with regard to the custody and production of such property. In the instant case, since the owner of the property is known, the Magistrate is duty bound to pass an order with respect to the disposal of such property or delivery of such property to the person entitled to the possession thereof. This Court observes that when the shipping company filed an application for interim release of the vehicle before the learned Court in seisin over the matter, at that time the learned court in seisin over the matter was well aware of the requirement of the seized vessel during investigation as well as trial. Moreover, the ownership of such vessel remains undisputed. The question, therefore, which remains is as to whether the seized property is required during the inquiry or trial? In reply to the said question, this Court would like to observe that none other than the court in seisin over the matter is in the best position to decide with regard to the use of the seized property during inquiry or trial. Thus, by virtue of the impugned order dated 12.02.2024, the learned court in seisin over the matter has exercised its discretion in favour of the release of the seized property to its real owner, subject to certain terms and conditions. To understand the scope and ambit of Section 457 of the Cr.P.C., this Court would like to refer to certain judgments of the Hon ble Supreme Court in this regard. In Basavva Kom Dyamanagouda Patil v. State of Mysore [ 1977 (4) TMI 170 - SUPREME COURT ]. The question arose as to whether the seized ornaments kept in the truck should be returned to the rightful owner while the criminal case is still pending. The Hon ble Supreme Court after analysing the provision contained under Section 457 of Cr.P.C. held that the power under Section 457 Cr.P.C. should be exercised promptly to prevent unnecessary hardship to the owner. Further, it was emphasized that seized property should not be kept in police custody for an indefinite period unless it is essential for the investigation. In Sunderbhai Ambala Desai v. State of Gujarat [ 2002 (10) TMI 773 - SUPREME COURT ], the Hon ble Supreme Court was dealing with an issue with regard to disposal of seized property under Sections 451 and 457 of the Cr.P.C. While addressing the prolonged retention of seized property in the custody of police authorities, the Hon ble Supreme Court observed that timely disposal of such property is very much essential. Ater a critical analysis of the judgments discussed, this Court has no hesitation in coming to a conclusion that the provisions contained in Sections 451 and 457 of the Cr.P.C. would be applicable to the cases involving offence under the provisions of the NDPS Act. Therefore, any property/ vehicle seized in connection with such cases can very well be dealt with by the trial court by resorting to the provisions contained under Sections 451 and 457 of the Cr.P.C. Conditions imposed by the learned trial court while releasing the vessel in question - HELD THAT:- As to the value of the vessel, it is no doubt a difficult proposition to accurately assess the exact value of the vessel involved in the present case. Keeping in view the law involved through various judgments of the Hon ble Supreme Court as well as this Court, the learned trial court while directing interim release of the vehicle/ property is duty bound to ensure that while taking on Zima, the person concerned secures the property/ vehicle/ vessel in question and further gives an undertaking that he shall not sell, transfer, alienate or part with possession of such property till conclusion of the trial and shall further give an undertaking to the effect that he shall produce such property/ vehicle/ vessel before the trial court as and when required by the trial court within a reasonable period of time. Furthermore, the learned Division Bench of this Court in Rabindra Kumar Behera s case, while answering the reference, has laid down the conditions that are required to be fulfilled while directing interim release of the vehicle/ property/ vessel. Reverting back to the financial condition imposed in condition Nos.1 and 2, this Court finds that the condition No.1 with regard to furnishing a Bank Guarantee would be a harsh condition so far the Petitioner-Shipping Company is concerned since they are not having any bank account in India. Therefore, the condition No.1 requires reconsideration by this Court. Accordingly, the condition No.1 is hereby waived. So far the condition No.2 is concerned, the value of the vessel has been assessed on a hypothetical basis. In other words, the real value of the vessel has not yet been assessed by any certified valuer in the present case. Basing upon the insurance declaration, the value of the vessel has been arrived at Rs.100 crores. Therefore, this Court is of the view that the same may not be the actual cost of the vessel which is stranded at the Paradeep port at the moment. Since no valuation report by a certified valuer could be produced in course of the hearing of the present application by the customs authorities, this Court is required to take a reasonable approach in the matter, particularly, keeping in view the factual background of the present case and the progress made in the investigation so far. Accordingly, the condition No.2 is modified to the extent that instead of Rs.100 crores, the Petitioner-Shipping Company shall now furnish an indemnity bond to the tune of Rs.75 crores and instead of one solvent surety for the like amount, they shall furnish two solvent sureties for the like amount. Further, it is directed that the other conditions of order dated 12.02.2024 shall remain intact. Conclusion - i) Section 457 of Cr.P.C. applies to cases involving the NDPS Act, allowing for interim release of seized property. ii) The legality of the interim release order upheld but the conditions are modified to be more reasonable, waiving the bank guarantee requirement and reducing the indemnity bond. The Criminal Revision Petition is dismissed. Case-Laws Customs Thu, 07 Mar 2024 00:00:00 +0530