Registered Owner Who Parted With Possession Of Vehicle Used In Terror Activities Cannot Seek Its Release: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has held that a registered owner who has executed a power of attorney in favour of an accused and parted with possession of a vehicle cannot maintain an application for release of the vehicle when it is seized for involvement in transportation of arms and ammunition in a terror-related case.The Court further observed that approaching the Court with unclean hands and making misrepresentations defeats any claim for custody of such property.Dismissing one such release application by an erstwhile registered owner the Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem observed,"From the above noted facts, it is conspicuous that the Appellant has approached the Court with unclean hands, rather she has made misrepresentation and also taken contradictory and prevaricated stand, that defeats her claim to the custody of the vehicle in question."The Court was hearing an appeal filed under Section 21 of the National Investigation Agency Act, 2008, challenging the order passed by the Special Court (Kupwara) designated under the NIA Act, which had dismissed the application seeking release of a vehicle seized in an FIR registered under Section 7/25 of the Indian Arms Act and Sections 13, 20 and 40 of the Unlawful Activities (Prevention) Act, 1967.Background: In January 2022, an Over Ground Worker (OGW) named Fareed Ahmed Chouhan was apprehended in an anti-militancy operation. During his personal search, one Chinese pistol, one pistol magazine, five pistol rounds and one mobile phone were allegedly recovered and a formal case was registered. During investigation huge quantity of arms, ammunition and foreign currency notes of various denominations comprising American (US), Chinese, Kuwait, UAE, Afghan and other countries were recovered from the residence of the accused, along with a country made pistol, pistol magazines, pistol rounds, bayonet, compass, and cell charger.During further investigation, it came to light that the accused had purchased one LMV (Tata Nexon) from unknown sources which was being used by him for transportation of illegal weapons, and the vehicle was seized.The appellant claimed to be the registered owner of the vehicle. According to the appellant, she had executed a Power of Attorney dated July 8, 2021 in favour of the accused and had given possession of the vehicle to the accused for a sale consideration of Rs. 12,10,000/-, out of which the accused had paid Rs. 6,30,000/- to the appellant. Since the accused was behind bars, the appellant moved an application before the Trial Court for release of the vehicle being its registered owner. The Trial Court dismissed the application, holding that the appellant had parted with possession of the vehicle on its transfer to the accused, therefore she had no locus to reclaim its custody. Aggrieved, she approached the High Court. Court's Observation:The Court noted that the appellant had specifically stated in the memo of appeal that she had executed a Power of Attorney dated July 8, 2021 in favour of the accused and had given possession and custody of the vehicle to him. The appellant also stated that the vehicle was financed from the J&K Grameen Bank and installments were being paid by the appellant, but after the arrest of the accused, installments could not be deposited.The Court observed that vide earlier orders the appellant was directed to produce the original Power of Attorney, but she failed to produce the same. The respondents, in their compliance report, stated that the appellant was directed to produce the original Special Power of Attorney executed in favour of the accused, but she failed to produce the same and stated that the original documents had already been produced before the High Court, whereas the fact remained that the appellant was twice directed to produce the original Power of Attorney but failed to do so.The Court found that the appellant had approached the Court with unclean hands, made misrepresentation, and taken contradictory and prevaricating stand, which defeated her claim to custody of the vehicle.The Court further observed that as per the stand taken by the appellant, she had parted with possession of the vehicle, therefore, it was not possible for her to claim its custody. The Court also noted that the appellant was denying constructive possession of the vehicle when it was allegedly found involved in transportation of arms and ammunition.The Trial Court had rightly concluded that the application was a ploy invented by the accused to get the vehicle released with the assistance of the registered owner, thereby causing prejudice to the prosecution, the High Court observed.The Court also sounded a note of caution, noting from the Status Report that till date no confiscation proceedings had been initiated in respect of the vehicle, though the prosecution case was that the vehicle was purchased and procured out of the proceeds of militancy related activities, and the...

Registered Owner Who Parted With Possession Of Vehicle Used In Terror Activities Cannot Seek Its Release: J&K&L High Court

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Registered Owner Who Parted With Possession Of Vehicle Used In Terror Activities Cannot Seek Its Release: J&K&L High Court

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