TMI Blog2012 (7) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... ed partnership firm 'LIS'. The firm purchased 10 cents of property included in Survey No.380/2 of Ernakulam Village, as per Ext.P1 registered assignment deed. The petitioner obtained Ext.P2 encumbrance certificate for the purpose of obtaining a loan from a bank. An attachment has been shown in the encumbrance certificate and when enquiries were made, the petitioner was supplied with the copy of a letter issued by the third respondent Assistant Commissioner of Police, Narcotic Cell, addressed to the Sub Registrar. It is mainly submitted that Ext.P3 cannot be treated as an order of attachment by a lawful authority. 3. Heard learned Senior Counsel for the petitioner Shri M.K. Damodaran and Shri O.V. Maniprasad for the petitioner, Smt. T.D. Rajalakshmy, learned counsel appearing for the impleaded additional fourth respondent and learned Government Pleader, Shri Joseph George. 4. The impleading petition is filed by the additional fourth respondent stating that in the partnership firm he has invested an amount of ₹ 15.5 lakhs and the maturity amount has not been disbursed so far. 5. Learned Senior Counsel for the petitioner mainly contended that the Sub Registrar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribing it as an attachment/prohibitory order. In the third column meant for giving details and nature of the document, the entry made is the following: attachment/prohibitory order ( . 8. Before going into the merits of the controversy, it is also worthwhile to mention about the contends of Ext.P3 letter. Therein, a request is made to the Sub Registrar to examine the details of encumbrance attached to the letter; ascertain whether the items of properties shown are still remaining in the name of the person whose details are furnished in column No.6; whether the properties have been transferred and if so, the details of the property, if any, transferred, with the relevant dates and to furnish a report on the same. The further request made is to take urgent steps to prevent alienation of properties which have not been transferred so far since the investigation is going on in the cases referred to therein and to take steps for attachment of those properties, so as to prevent alienation. The two criminal cases referred to are Crime Nos.672/2006 of Central Police Station, Ernakulam and 133/2006 of Museum Police Station, Thiruvananthapuram. 9. Therefore, it is clear, going by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand of the respondents herein, -- even though it is not made clear whether the action is under Section 102, -- only if the second limb is attracted, the same can be justified. Sub-section (3) is also important to understand the scope of sub-section (1). It enables the police officer to give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. The provision will come to the aid in cases where the property seized is such that it cannot be conveniently transported to the Court, or where there is difficulty in securing proper accommodation for the custody of such property or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation. The proviso therein applies in cases where the property seized is subject to speedy and natural decay. A specific provision for attachment is not there in Section 102 and what is provided is the power of the police officer to seize certain property. The provision for attachment is contained only in relation to Sections 82 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken into consideration the speech of the then Home Minister Shri S.B. Chavan which leaves no doubt that this Chapter is not meant for the local offences. When we see the applications as also the order passed by the trial court, it is clear that it is only and only in respect of the local offences like gambling and the offences under IPC which are local. Even the properties are not shown to be connected with crimes mentioned in the Statement of Objects and Reasons of the amending Act. In fact, no connection is established also between crimes mentioned and the properties. Such properties are clearly not included in Section 105-C. Though the language of Section 105-C(1) is extremely general, its being placed in Chapter VII-A cannot be lost sight of. Again there is a clear-cut reference in sub-section (2) thereof to the contracting State, the definition of which is to be found in Section 105-A(e). It is, therefore, clear that the property envisaged in Section 105-C(1) cannot be an ordinary property earned out of ordinary offences committed in India. 17. Where the language is extremely general and not clear, the contextual background has to be taken into consideration for arriving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since it is not conceivable that any immovable property could ever be found under the circumstances which could create suspicion of commission of any offence, (except the cases in which the immovable property is itself acquired from the proceeds of a crime such as in cases of disproportionate assets under the Prevention of Corruption Act, 1987 or 1988, and which can be sufficiently and adequately dealt with by the police officer during investigation by its attachment under the Criminal Law (Amendment) Act (supra), there could be no question of police officer being in a position to take control of such immovable property....... 13. The meaning of the word 'property' in Section 102 had come up for consideration before the Apex Court in State of Maharashtra v. Tapas D. Neogy {(1999) 7 SCC 685} in relation to the bank account of accused or his relation. The question was considered whether in relation to bank account, the power under Section 102 could be invoked. In para 12 it was held as follows: We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is property within the meaning of Section 102 of the Criminal Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll file the copy in his Book No.1. (3)xxxxxxx (4) Every Revenue Officer granting a certificate of sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book No.1. (5) Every Court passing-- (a) any decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of or of any person, or (b) an order for the attachment of immovable property or for the release of any immovable property from attachment. shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable in the manner required by Section 21, to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such decree or order is situate, and such officer shall file the copy and memorandum in his Book No.1. (6) Every officer issuing a written deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty, rights, credits, or effects of the defendant to satisfy the demand of the plaintiff. Encumbrance. Burden on property; impediment; mortgage or other claim on property. Grant of lands rent free or the grant of the landlord's zarait land to a tenant for the purpose of cultivation does amount to an encumbrance of the estate. Apart from mere dealings such as mortgages which create a charge upon the land, there are other dealings which amount to an encumbrance. Anything which interferes with the unrestricted rights of the proprietors as they then existed would be an encumbrance upon the land, even the granting of a lease of zarait lands, that is to say the lands which, the landlord is entitled to hold in direct possession and to cultivate for his own purposes. A lease of such lands granted to an occupier in circumstances which would give him a right of occupancy over the land, would amount to an encumbrance. The meaning of the two expressions as explained above will throw much light to understand the scope of an attachment and encumbrance . It will also indicate that to be an encumbrance there should be something which interferes with the unrestricted rights of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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