P L D 2009 Lahore 625_Lahore High Court Allowed Superdari

P L D 2009 Lahore 625

Before Kazim Ali Malik and Saifur Rehman, JJ

ADAMJEE INSURANCE COMPANY LTD. KARACHI through Sarfraz Ali---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.282 of 2009, heard on 24th June, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 517---Penal Code (XLV of 1860), S.381-A---Control of Narcotic Substances Act (XXV of 1997), Ss.22; 32, 33 & 74, Proviso---Temporary custody of vehicle---Car in question which allegedly was used in transportation of narcotics was stolen away by unknown thief---Said car before incident of theft was insured with appellant/Insurance Company---Trial Court dismissed the request for temporary custody of car by Insurance Company on two grounds; firstly that the company could dispose of the car after obtaining it on superdari and secondly the request of the company was barred by proviso to S.74 of Control of Narcotic Substances Act, 1997---Validity---Under proviso to S.74 of Control of Narcotic Substances Act, 1997, vehicle used in transportation of narcotic drugs would not be given on custody to; (i) accused; (ii) an associate of accused; (iii) a relative of accused; and (iv) any private individual--Said provision of law did not stand in the way of the Insurance Company to make a request for custody of car because the company could not he termed or considered as an accused, or associate of accused, or a relative of accused or even a private individual---Contention of law officer that Insurance Company was a legal person was misconceived because legal person could not be equated with private individual--Insurance Company had paid the claim of registered owner thereof because of its theft---Registered owner of the car or 'the Insurance Company had no concern with the crime committed by the drug-pusher who was caught red handed while transporting charas in the stolen car---By disallowing superdari of the car to the Insurance Company, the Trial Court had forced the company to stand in the dock along with the culprit without any fault on its part---Only object to discourage superdari of vehicle used in carrying narcotics, was to enable the Trial Court to confiscate such vehicles in terms of S.33 read with S.32 of Control of Narcotic Substances, Act, 1997---While deciding the request of appellant Insurance Company of the car in question, proviso to S.32 of the Control of Narcotic Substances Act, 1997 escaped notice of the Trial Court which had clearly laid down that no such vehicle would be liable to confiscation unless it was proved that owner thereof knew that the offence was likely to be committed through said vehicle---Such being not the position in the present case, impugned order of the Trial Court was set aside and the Trial Court was directed to hand over the vehicle to the appellant Insurance Company on superdari.

Rai Sarfraz Ali Khan for Appellant.

Imran Nasir Waraich, D.P.G. for the State.

Date of hearing: 24th June, 2009.


JUDGMENT

KAZIM ALI MALIK, J.---Brief facts giving rise to this appeal may be given first.

On 7-12-2008 Mehdi Hassan, Sub-Inspector Police Station Gulberg, Lahore intercepted Car No.GLI-Islamabad 763 pursuant to spy information, apprehended the car rider and seized Charas from its secret cavities. The Sub-Inspector also took into possession the above said car. After seizure of the car it revealed that the drug pusher was displaying fake registration number and as a matter of fact the car number LZY-3263, Engine No.1030659, Chassis No.130652, Honda Civic Model 2005 had been used in transportation of narcotics.

2. One Tariq Ali Khan got registered case F.I.R. No.441 dated 1-7-2008 under section 381-A, P.P:C. with Police Station Race Course, Lahore with an allegation that on 30-6-2008 at 11-00 p.m. he parked the above said car registered in the name of his brother's wife Mst. Neelofer Amir Ali, outside the house of his friend Muhammad Waseem from where it was stolen away by unknown thief. This is a matter of record that before the incident of theft the car had been insured with the appellant-company under Insurance Policy No.04/PE/003/00129090/-10/2007(9414), dated 19-10-2007. The owner of the vehicle filed claim for payment before the appellant company in line with the terms and conditions of the insurance policy. The appellant-company after verification of the claim and obtaining the letter of subrogation from the above named registered owner, made payment of Rs.7,25,000 to the owner of the vehicle vide loss voucher dated 31-10-2008. After receiving the payment, the registered owner of the car handed over the documents of ownership of the vehicle to the appellant Insurance Company.

3. On 21-1-2009, the appellant insurance Company made an application for temporary custody of the vehicle before the Court of A Sessions, Lahore which was dismissed by a learned Addl. Sessions Judge vide impugned order dated 28-1-2009 with an observation:-

"This' is an admitted fact that the vehicle in question was got on lease which has been stolen regarding which case F.I.R. No.441/2008 dated 1-7-2008 under section 381-A, P.P.C. was registered at Police Station Race Course, Lahore and later on the said vehicle has been used in transportation, of narcotic substances and heavy quantity weighing 90 kilograms charas has been recovered from this vehicle. Challan has not yet been submitted to the Court of competent jurisdiction. The petitioner is an insurance Company and it is apprehended that if the vehicle in question is given on Superdari it may be disposed of by the petitioner company due to which proceedings before the learned trial Court may suffer. Moreover keeping in view the provisions of section 74 of Control of Narcotic Substances Act, 1997 the vehicle which has been used in transportation of narcotics substance cannot be given on Superdari till the final decision of the case. In my view the petitioner is not entitled to get the vehicle in question on Superdari. Hence the instant petition is hereby dismissed."

4. The Investigating Officer seized the vehicle in exercise of his power under section 22 of the Control of Narcotic Substances Act, 1997. The learned trial Court dismissed the request for temporary custody of the vehicle by the appellant-Insurance Company on two grounds: first, that the company may dispose of the car after obtaining it on superdari and that the request was barred by proviso to section 74 of the Act. Here we find it convenient to reproduce below the proviso to section 74 ibid, which reads:--

"Provided that nothing contained in section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898), or any other provision of the said Code or any other law for time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material utensils used for production or manufacture of such drugs or substances or any conveyance used in import, export, transport of transshipment thereof or for commission of an offence under this Act, shall not be given on custody to the accused or any of his associate or relative or any ' private individual till the conclusion of the case."

A bare perusal of the above quoted provision of law would show that the vehicle used in transportation of narcotics drugs shall not be given on custody to; (i) accused, (ii) an associate of the accused, (iii) a relative of the accused, and (iv) any private individual. We must say without fear of contradiction that the above said provision of law does not stand in the way of the appellant-Insurance company to make a request for custody of the vehicle because the company cannot be termed or considered as an accused, associate of the accused, a relative of the accused or even a private individual. The learned Law Officer has attempted to argue that the appellant being a limited company is a legal person. We are not in agreement with the learned law officer because legal person cannot be equated with private individual.

5. On 1-7-2008 the car in question had been stolen away for which a case on the charge of theft had been registered the same day. The appellant-company paid the claim of registered owner of the insured car. Admittedly, the registered owner of the car or the insurance company had no concern with the crime committed by the drug-pusher, who was caught red-handed while transporting charas in the stolen car. By disallowing Superdari of the car to the insurance company, the learned trial Court forced the company to stand in the dock along with the culprit without any fault on its part.

6. The only object to discourage Superdari of vehicles used in carrying narcotics, is to enable the trial Court to confiscate such vehicles in terms of section 33 red with section 32 of Control of Narcotic Substances Act,1997. While deciding the request for Superdari of the car in question, proviso to section 32 of the Act escaped notice of the learned trial Court. The above quoted proviso of law  clearly lays down that no such vehicle shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be or was likely to be committed through said vehicle. In the case in hand it is the prosecution case and is not in dispute or disputable that the drug pusher used stolen car in carrying narcotics, which had been insured with the appellant Insurance Company. Hence, the registered owner of the car and the Insurance Company, now possessed with letter of Subrogation, did not know that the offence under the penal provisions of Control of Narcotic Substances Act, 1997 was being, or was to be or was likely to be committed through the said stolen car. It is painful to note that the learned trial Court treated the drug pusher, the innocent owner of the stolen car and the insurance Company at par with each other.

7. The apprehension of the learned trial Court that the appellant company may dispose of the vehicle, is based on surmises and conjectures. While obtaining the vehicle on Superdari, the appellant-company shall submit bond to the satisfaction of the learned trial Court. It is not understandable as to how the learned trial Court assumed and pre-empted that after obtaining the car on Superdari, the appellant company would breach the terms of the bond. The ground for refusing Superdari of the car being far fetched and not based on any material, is not sustainable.

9.(sic) For what has been stated above, we are of the considered view that the impugned older being without substance, offensive to the above said provisions of Control of Narcotic Substances Act, 1997 and established principles governing the subject of Superdari of vehicles, is not maintainable. We, therefore, accept this appeal, set aside the impugned order and direct the learned trial Court to hand over the vehicle to the appellant company subject to submission of a bond in the sum of Rs.5,00,000 to the satisfaction of the learned trial Court.

H.B.T./A-202/L                                                                                   Appeal accepted.