A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

Interim custody of crime vehicle = 457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, 3 to appear before him and establish his claim within six months from the date of such proclamation. There is no dispute with regard to the petitioner’s ownership over the vehicle. It is clear that there is no bar under the NDPS Act on the Courts to order for interim custody of a vehicle which is seized in a crime registered for the offences under the said Act. Section 63 of the NDPS Act reads thus: “(1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscation under section 60 or section 61 or section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under section 60 or section 61 or section 62, but the person who committed the offence in connection therewith is not known or cannot be found, the court may inquire into and decide such liability, and may order confiscation accordingly: Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim: Provided further that if any such article or thing, other than a narcotic drug, psychotropic substance, 1[controlled substance,] the opium poppy, coca plant or cannabis plant is liable to speedy and natural decay, or if the court is of opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. 9. From the above it is clear that the Court shall decide whether a vehicle seized in connection with crime registered under the provisions of the NDPS Act is liable for confiscation or not only at the time of convicting, acquitting or discharging the accused. But there is 4 no mention that interim custody of a vehicle cannot be ordered. Further if the vehicle is kept idle it will render useless and there is every likelihood of the vehicle getting destroyed.

seeking to enlarge the petitioner/Accused on bail in the event of his arrest in connection with Crime No.28 of 2021 on the file of Varikuntapadu Police Station, SPSR Nellore District, registered for the offences under Sections 417, 420, 465, 466, 468, 471, 473 r/w 120b of Indian Penal Code, 1860= As the offences registered against the petitioner are punishable with less than seven years imprisonment, this Court deems it fit to pass a direction to the Investigating Officer to follow the guidelines prescribed by the Hon’ble apex Court in Arnesh Kumar (supra) and the procedure prescribed in Section 41-A of Cr.P.C.

Though the learned Senior counsel submits that this Court as well as the Sessions Court have got concurrent jurisdiction, this Court is not inclined to entertain this petition directly without moving the same before the trial Judge, where entire material including remand report will be available on his production. It is also to be noted here that the petitioner is still in police custody and he is not yet produced before appropriate Court for judicial remand. In that view of the matter, this Court is not inclined to entertain the present petition seeing bail and the same is liable to be dismissed.;Even assuming for the sake of argument, that an application seeking bail is maintainable at this stage, but the guidelines framed for hearing bail applications during Summer Vacation -2021 categorically states as under : Criminal Matters : i) Anticipatory bail matters ii) Bail applications, if bail is refused by Magistrates and Sessions Judges/ Additional Sessions Judges. 3 iii) Criminal Appeals and Criminal Revision Cases in which the accused are convicted. 8. As per the above guidelines, it is very much clear that only against the orders passed dismissing the bail application by the trial Court, then only, bail application can be moved before this Court.;

ORDER 39 RULE 1 &2 - SUIT FOR CANCELLATION OF REG. GIFT DEED AND ALSO FOR PARTITION - We feel that there is nothing wrong in trial Court looking into the evidence of P.W.1 and deciding the issue without reference to the documents, more particularly, Aadhar card, gas connection, correspondence from Margadarsi finance, renewal of driving licence etc., belonging to the appellant – plaintiff. Probably all these documents were marked only to show that the appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the root of the matter, while deciding granting of injunction, in view of the evidence of P.W.1, who is the plaintiff himself. 15. In paragraph 13 of the plaint it has been stated that, the appellant – plaintiff is in possession of the plaint schedule property along with his brother 2nd respondent – 2nd defendant, since the same is a family property. But, in the evidence of P.W.1, it has been elicited that, in the month of November, 2019, he came from U.S.A. He stayed in Gowtham Lodge, Tenali. His own evidence shows that his father is residing in the ground floor portion of the suit property and he also admits that his father gave a report against him in II Town Police Station, Tenali, alleging that the appellant – plaintiff is harassing him. From the above, prima facie, it appears that the plea taken that he is in possession of the property may not be correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one tenant is residing and the tenant is paying rent to his sister through online banking. The evidence also shows that his sister 9 got mutated her name in municipal records in pursuance of Ex.A1 gift deed. Apart from that, she got mutated her name in electricity service records as well. Therefore, prima facie, the evidence of P.W.1 itself shows that he was not in possession of the property. Even as per recitals of gift deed – Ex.A1, the property stands in the name of the 1st respondent – 1st defendant and the possession of the suit schedule property was delivered to her by Vijaya Lakshmi. 16. Apart from all these things it is also to be noted that, appellant – plaintiff also sought partition of the property and allotment of share to him and other respondents – defendants. As per the averments in the plaint, they are in the joint possession of the property. Such being the position, the question of granting temporary injunction against co-owners would not arise.

ORDER 39 RULE 1 &2 - SPECIFIC PERFROMANCE SUIT - NOT TO DEMOLISH OR TO CONSTRUCT ANY BUILDING PENDING SUIT - admittedly by the time the application was filed, substantial portion of the construction was completed. Even assuming that the entire construction is completed, it will not cause any loss or prejudice to the appellant. As rightly observed by the Court below that in the event the appellant succeeds in the suit, the respondents have to execute a sale deed along with the structures. Moreover, when the respondents have given an undertaking in the counter that they are not going to alienate the schedule property to any third parties and they have no intention to alienate the same, the apprehension of the appellant is absolutely baseless. Therefore, there are no grounds to interfere with the well considered order passed by the Court below.

0RDER 39 RULE 1 & 2 - PARTITION SUIT - NOT TO ALIENATE PENDING SUIT = Defendants 1, 4 and 5 who are the appellants herein filed counter, wherein they stated that pursuant to the settlement deed dated 12.09.1994, they executed a number of 6 documents and entered into various transactions. It is not in dispute that the appellant herein did not get the settlement deed dated 12.09.1994 marked. In fact, all the documents, on which the appellants herein sought to rely upon, are the documents emanated on the basis of the alleged settlement deed dated 12.09.1994. In fact, the 1st respondent herein is strongly disputing the genuineness of the said settlement deed. The learned District Judge, only after taking into consideration all the contentions advanced by both the parties and taking into consideration the non-marking of the settlement deed dated 12.09.1994 and in order to avoid further complications in the matter, granted the order of injunction in favour of the 1st respondent herein. It is a settled proposition of law that the relief of injunction is a discretionary and equitable relief. A perusal of the order passed by the trial Court shows that the learned I Additional District Judge has assigned cogent and convincing reasons in the impugned order. 9. Having regard to the apprehension expressed by the learned senior counsel, Sri P.Veera Reddy, that the 1st respondent-plaintiff is taking steps to get the revenue records mutated taking advantage of the injunction orders, this Court is inclined to modify the injunction order as an order of status quo in all respects with regard to the subject property.

Section 9-A applies when any entertainment shows escaped assessment of tax under Section 4 or 4-A. In such an event, the prescribed authority shall assess to the best of its judgment, the tax due on such entertainment shown under section 4 or section 4A after making such enquiry as it considers necessary within a limited 6 period. Section 9-A does not apply as no assessment was done previously and the appellant is not assessed under Section 4 or Section 4(1-A) or Section 4A earlier. If any entertainment tax was assessed under section 4 or section 4(1-A), and if tax escaped the assessment in such past assessment, the invocation of section 9-A comes into picture so as to assess the escaped tax. Since, the proceedings of the Entertainment Tax Officer are assessed for the first assessment, the provisions of Section 9A have no relevance. In the instance case, enquiry, as required under Section 9, has been carried out by giving a notice, but no objections were filed. Therefore, it cannot be said there was any illegality in invoking Section 9, more so, when there is escaped assessment.