Dismissed

E.Subbarao v. Statye of Ap

Andhra Pradesh HC4 Sept 2019CRLP/3270/2019

Case brief

AI extract

What is this about?

This criminal petition challenged an order dismissing an application for interim custody of seized tobacco products. The Supreme Court held that since tobacco is a prohibited article liable to confiscation under the COTPA, 2003, and the petitioner failed to produce cogent evidence of ownership, the dismissal was not perverse.

What did the court decide?

The Criminal Petition seeking interim custody of the seized tobacco bags was dismissed. The Court granted liberty to approach the trial Court with correct documents proving ownership or legal possessi

E.Subbarao Vs Statye of Ap — Property and Title | Andhra Pradesh HC (2019)

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL PETITION No.3270 OF 2019

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ORDER :

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1. Challenging the order, dated 29.04.2019, in Crl.M.P. No.2 of 2019 in Crime No.149 of 2018 of Narsipatnam Town PS, passed by the learned Additional Junior Civil Judge, Narsipatnam, dismissing the petition filed under Section 451 of Cr.P.C by the petitioner/accused No.1 seeking interim custody of the case property, the instant criminal petition is filed.

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2. Crime No.149 of 2018 is registered for the offences punishable under Section 273 IPC and Section 22 R/w.5(1) of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 ( for short , ‘COTP Act, 2003’).

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3. It should be noted that this Court in Criminal Petition No.10538 of 2018, dated 04.10.2018, quashed the proceedings against A-1, in so far as offence punishable under Section 273 IPC only. Later, the petitioner/A-1 filed Criminal Petition No.2226 of 2018 before the Additional Senior Civil Judge, Narsipatnam, seeking interim custody of 104 tobacco bags and the said petition was dismissed. Aggrieved, the petitioner filed Criminal Petition No.121 of 2019 before this Court wherein this Court allowed the petition and gave liberty to the

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UDPR,J Crl.P.No.3270 of 2019

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petitioner to file a fresh petition along with the documents showing proof of his ownership over the seized property for consideration of the lower Court. Accordingly, the petitioner filed Crl.M.P. No.2 of 2019. It appears the petitioner produced certain documents before the trial Court but on verification the trial Court observed that the photostat copies of the documents filed by the petitioner/A-1 showing ownership particulars of A-2 over the seized crime vehicle lorry baring No.WB23 B 8583 and the photostat copy of Aadhaar card and the Photostat copy of invoice with 100 bags of tobacco Premeraja 07, dated 26.09.2018, issued by the New Maharaja Transport Company, Calcutta to the consignee Raj Trading, Bangalore, are no way helpful to the Court to consider the petition to grant interim custody of the seized property. The Court also observed that the petitioner filed documents relating to 100 bags but not filed any documents for the remaining 4 bags of case property. Even the invoice filed by him does not contain the name of petitioner/A-1 and the authorized signature of the supplier at the relevant column to consider that the consignment was being sent by New Maharaja Transport Co. through the petitioner. Thus having found that the documents produced do not expressly show the ownership of the petitioner, the trial Court dismissed the petition.

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UDPR,J Crl.P.No.3270 of 2019

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4. Heard learned counsel for the petitioner, learned Additional Public Prosecutor appearing for the respondent-State, and perused the record.

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5. Learned counsel for the petitioner would argue that the petitioner produced sufficient documents, showing his ownership over the seized bags of tobacco products and the trial Court was not right in dismissing the petition. Alternatively, would argue that even assuming he failed to produce the documents of ownership, still, since the tobacco bags were seized from his possession, it is trite law that possession should be given to him since no other persons claimed right or title over it.

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6. Per contra, learned Additional P.P, would argue that the petitioner utterly failed to establish his ownership over the seized 104 bags and therefore the trial Court rightly rejected to grant interim custody. He would submit that the case is pending and the property is a prohibited property and therefore interim custody cannot be given to him without producing cogent evidence.

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7. A perusal of the impugned order shows learned Magistrate dismissed the application on the main observation that the xerox copy of invoice produced by the petitioner showing the description of 100 bags of tobacco Premraja-7 said to be issued by New Maharaja Tobacco, Kolkatta to the consignee Raj Trading, Bangalore, dated 26.09.2018 whereas, the seized property is 100 bags of Raj Khaini,

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UDPR,J Crl.P.No.3270 of 2019

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Neeraj Khaini (one plastic bag) and deluxe plastic bags (3) totalling 104 and the invoice particulars were not matching with the particulars of the seized property. Further, the document was filed only in respect of 100 bags but not the remaining 4 bags. Further, the invoice filed by the petitioner does not show the name of the petitioner/accused and the authorized signature of the supplier at relevant column. On the aforesaid observations, the petition is dismissed.

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8. I gave my anxious consideration to the impugned order and the arguments of either side. It should be noted that the case is pending trial and if the guilt is proven, the Court under Section 14 of COTP Act, 2003 has power to confiscate the contraband. In that view of the matter, the petitioner who claims interim custody has to properly establish his ownership or lawful custody till it was seized by the Police. In this case, as per the impugned order, the petitioner could not produce cogent material to claim ownership. In fact Crl.P.No.121 of 2019 was allowed by this Court and given liberty to the petitioner to file a fresh petition before the lower Court along with the documents showing the proof of ownership of the case property. In that view, he cannot claim that in spite of his failure to establish ownership, he can be given interim custody. It is true that generally when a property is seized from a particular person in a criminal case and no other person is forthcoming, showing better title, the property

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UDPR,J Crl.P.No.3270 of 2019

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shall be given custody to the person from whom it was seized. However, it should be noted that in this case the property is a prohibited one and it is liable to be confiscated in the event of the case ends in conviction. Therefore, I do not find any illegality or perversity in the order impugned. Hence, the Criminal Petition is dismissed, however, if the petitioner can able to produce correct documents, showing his ownership or his legal possession over the property seized, the trial Court may consider the same and pass an appropriate order on merits.

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As a sequel, miscellaneous petitions pending, if any, in this case shall stand closed.

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_________________________ U.DURGA PRASAD RAO, J Date:04.09.2019 MS

E.Subbarao v. Statye of Ap

Case brief

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E.Subbarao v. Statye of Ap

Case brief

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