Case Note & Summary
The Petitioner, Board of Trustees of the Port of Mumbai, filed a writ petition challenging an order dated 29.07.2002 passed by the learned Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai. The Magistrate had directed the release of 30 cartons of Gentamycin Sulphate BP98 to Respondent No. 5 (M/s. Magna Laboratories) without hearing the Petitioner. The goods had been imported by Respondent No. 5 and were stolen from the Port. The Petitioner lodged an FIR, and the police arrested some persons including Respondent No. 6. The importer moved an application before the Magistrate for release of the goods, which was allowed ex parte. The Petitioner contended that it had a lien over the goods for demurrage charges under Section 59 of the Major Port Trusts Act, 1963, and that the order was passed without giving it an opportunity of hearing. The Court held that the Magistrate's order was unsustainable as it was passed without notice to the Petitioner and without considering its statutory lien. The Court set aside the order and directed the Magistrate to decide the application afresh after hearing all parties, including the Petitioner. The Court also directed that the goods be kept in the custody of the Port Trust until further orders.
Headnote
A) Criminal Procedure Code - Section 451 - Release of Property - Lien of Port Trust - The Magistrate ordered release of stolen goods to the importer without notice to the Port Trust which had a lien for demurrage charges under Section 59 of the Major Port Trusts Act, 1963 - Held that the order was passed without affording opportunity of hearing to the Port Trust and without considering its lien, and thus liable to be set aside (Paras 1-13).
B) Major Port Trusts Act, 1963 - Section 59 - Lien of Port Trust - The Port Trust has a lien over goods for demurrage charges and can detain goods until charges are paid - The criminal court while ordering release of property must consider such statutory lien and give notice to the Port Trust (Paras 7-13).
Issue of Consideration
Whether the learned Metropolitan Magistrate could order release of stolen goods to the importer without hearing the Port Trust which had a lien over the goods for demurrage charges?
Final Decision
The Court allowed the writ petition, set aside the order dated 29.07.2002 passed by the learned Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai, and directed the Magistrate to decide the application for release of goods afresh after hearing all parties including the Petitioner. The goods were directed to be kept in the custody of the Port Trust until further orders.
Law Points
- Lien of port trust over goods for demurrage charges
- right to be heard before release of goods
- criminal court's power to order release of property under Section 451 CrPC
- applicability of Section 59 of Major Port Trusts Act
- 1963
Case Details
2019 LawText (BOM) (10) 78
Criminal Writ Petition No. 182 of 2004
Mr. Umesh Shetty a/w. Rama Nagaswaman i/by Mulla and Mulla and Craigie Blunt and Caroe for Petitioner, Mr. A.R. Patil, APP for Respondent – State
The Board of Trustees of the Port of Mumbai
The State of Maharashtra, The Senior Inspector of Police, Yellow Gate Police Station, Mumbai, The Commissioner of Customs - Imports, Ballard Estate, Mumbai, The Drugs Inspector (IB), Food and Drugs Administration, Maharashtra State, M/s. Magna Laboratories (Gujrat), Himanshu Kishorbhai Trivedi
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Nature of Litigation
Criminal writ petition challenging order of Metropolitan Magistrate directing release of stolen goods to importer without hearing the Port Trust.
Remedy Sought
Petitioner sought quashing of the Magistrate's order dated 29.07.2002 and direction to hear the Petitioner before release of goods.
Filing Reason
The Magistrate passed an ex parte order releasing 30 cartons of Gentamycin Sulphate to the importer without considering the Port Trust's lien for demurrage charges.
Previous Decisions
The Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai passed order dated 29.07.2002 directing release of goods to Respondent No. 5.
Issues
Whether the Magistrate could order release of goods without hearing the Port Trust which had a statutory lien?
Whether the Port Trust's lien under Section 59 of the Major Port Trusts Act, 1963 must be considered before release of goods?
Submissions/Arguments
Petitioner argued that it has a lien over the goods for demurrage charges under Section 59 of the Major Port Trusts Act, 1963 and that the order was passed without giving it an opportunity of hearing.
Respondents did not file any counter affidavit and the matter was heard on merits.
Ratio Decidendi
A criminal court while ordering release of property under Section 451 CrPC must consider any statutory lien over the property, such as the Port Trust's lien for demurrage charges under Section 59 of the Major Port Trusts Act, 1963, and must afford an opportunity of hearing to the lien holder before passing such order.
Judgment Excerpts
The order passed by the learned Magistrate is without affording opportunity of hearing to the Petitioner and without considering the lien of the Petitioner over the goods in question.
The Petitioner has a lien over the goods for demurrage charges under Section 59 of the Major Port Trusts Act, 1963.
Procedural History
On 22.01.2002, Respondent No. 5 imported 60 cartons of Gentamycin Sulphate. On 05.02.2002, Petitioner lodged FIR for theft of 30 cartons. On 21.02.2002, police arrested three persons including Respondent No. 6. On 05.03.2002, police informed Petitioner that on application of importer, court ordered possession of goods. On 29.07.2002, Magistrate passed order releasing goods to importer. Petitioner filed Criminal Writ Petition No. 182 of 2004 challenging that order. Judgment pronounced on 09.10.2019.
Acts & Sections
- Major Port Trusts Act, 1963: Section 59
- Code of Criminal Procedure, 1973 (CrPC): Section 451
