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2000 DIGILAW 1572 (PNJ)

Indian Airlines v. Ibrahim Akhtar

2000-12-21

K.S.GAREWAL

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Judgment K.S.Garewal, J. 1. Indian Airlines is the owner of the aircraft which was hijacked on December 24, 1999 and flown to Kandahar in Afghanistan. Later its passengers and crew were released and the aircraft was flown back to India. F.I.R. No. RC-1(S)/2000/SIC-IV New Delhi dated January 11, 2000 for offences punishable under sections 365/341/342/506/307/302/147/148/149 read with Section 27 of the Arms Act, Section 5 of the Explosive Substances Act and Sections 4/5 of the Anti Hijacking Act, 1982 was registered at Police Station SPE/CBI/SIC.IV/New Delhi on the information given by Mandeep Singh, S.H.O. Police Station Raja Sansi Amritsar. The aircraft was AIRBUS 300 B 2(VT-ED WS. No. 36). It was impounded and later released on sapurdari to Indian Airlines on February 5, 2000. The airline sought permission to sell the aircraft and filed an application under section 451 Cr.P.C. before learned Designated Court/Sessions Judge, Patiala. The application was opposed and permission was declined vide order dated November 2, 2000. 2. In revision the petitioner airline has argued that the learned Judge had misread the provisions of Section 451 Cr.P.C., therefore, mistakenly concluded that evidence was required to be recorded before the aircraft was released and the Court further opined that the aircraft may be required to be produced at the trial and the accused may want to examine it. 3. The contention of the airlines is that a few days before the hijacking its Board of Directors had taken a policy decision on December 20, 1999 to sell the said aircraft. Apparently the reason was that the aircraft was more than 23 years old and required a major overhaul to make it airworthy which would cost about Rs. 7.00 to Rs. 8.00 crores. The minutes of the said meeting have been annexed with the petition as Annexure P.2. Furthermore, the Engineering Department of the airline had recommended a `4C check which would require a minimum 75 days and expenditure of Rs. 4.00 crores on spares plus 40,000 man hours. A certificate of the Engineering Department has been relied upon and filed alongwith the petition as Annexure P.4, dated November 13, 2000. This indicates that the inspection would cost approximately Rs. 8.00 to Rs. 10.00 crores. 3A. 4.00 crores on spares plus 40,000 man hours. A certificate of the Engineering Department has been relied upon and filed alongwith the petition as Annexure P.4, dated November 13, 2000. This indicates that the inspection would cost approximately Rs. 8.00 to Rs. 10.00 crores. 3A. Lastly, reliance was places on the approval for the sale of the said aircraft granted by the Government of India, Ministry of Civil Aviation dated September 20, 2000 whereby the airline was permitted to sell the aircraft to M/s Aviation Systems International, USA for USD 23,75,000. This approval has been produced as Annexure P.5 with the petition. 4. The petition has been opposed by C.B.I. on the ground that the aircraft was a material exhibit in the case and the aircraft was necessary to demonstrate which were the various positions to which the passengers had been taken after it had been hijacked and where the accused had positioned themselves. The cockpit of the aircraft had been used as office/head quarter by the hijackers from where they issued their various orders and demands. The executive class cabin of the aircraft was the spot where Rupin Katyal was murdered on December 25, 1999. Release of the aircraft, according to the learned, would prejudice the prosecution. 5. It is indeed true that the aircraft was an important piece of evidence because the entire sequence of events over seven days had unfolded within the air craft. Nevertheless, it is important to remember that the case against the accused is based on the eye witness account of the crew and the passengers who survived. The aircraft would at best be a piece of corroborative evidence which could be used by the prosecution and, if necessary, by the defence to corroborate or contradict the account of witnesses but the aircraft itself is not going to reveal the guilt or the innocence of the accused. 6. The learned Sessions Judge noted that under section 451 Cr.P.C. a court could permit sale of case property pending the conclusion of the trial, provided the property was subject to speedy and natural decay or it was expedient to do so but this could be only after recording such evidence as court may think necessary. 6. The learned Sessions Judge noted that under section 451 Cr.P.C. a court could permit sale of case property pending the conclusion of the trial, provided the property was subject to speedy and natural decay or it was expedient to do so but this could be only after recording such evidence as court may think necessary. However, the learned Judge took the mistaken view that main accused had not been arrested and no evidence had yet been recorded, therefore, the stage to permit the sale of the aircraft had not been reached. 7. It is quite obvious that it has been left to the discretion of the court to permit sale of case property, if it was expedient to do so and it is also within the jurisdiction of the Court to record such evidence as may be considered necessary. The evidence to be recorded was not evidence at the trial but only evidence for the purposes of permitting the sale of the case property. In the present case, the airline which owns the aircraft seeks its release for sale and has placed on record sufficient material to support commercial reasons for selling the aircraft. The aircraft requires a `4C check which entails overhaul and may involve an expenditure of Rs. 8.00 to Rs. 10.00 crores. The aircraft is 23 years old. The sale of the aircraft in its present condition is likely to fetch about Rs. 11.00 crores. The documents filed with the petition constitute sufficient evidence to make it expedient to permit the sale. It is not evidence recorded at the trial but evidence of circumstances indicating the necessity for sale which the trial court was required to consider. 8. The petitioner has been able to completely satisfy this court that the sale should be permitted for commercial reasons. Neither the prosecution nor the accused would be prejudiced by allowing the sale of the aircraft. 8. The petitioner has been able to completely satisfy this court that the sale should be permitted for commercial reasons. Neither the prosecution nor the accused would be prejudiced by allowing the sale of the aircraft. Their interest can be effectively safeguarded if a video film of the exterior and the interior of the aircraft is taken, photographs of the relevant positions within the aircraft are taken, an inspection of the aircraft under Section 310 Cr.P.C. is conducted by the Court or by an officer nominated in this behalf, similar aircraft is made available from the present fleet of the airline if available, as and when required, either by prosecution or the defence and a table model of the aircraft about 10 ft long and to scale is constructed at the expense of the airline and placed at a suitable location to enable the parties to inspect it, as and when necessary. 9. This revision petition deserved to succeed. The impugned order of the learned Special Judge is hereby set aside and it is directed that aircraft No. AIRBUS 3000 B 2(VT-ED WS No. 36) be released to Indian Airlines, petitioner herein, latest by January 15, 2001 but only after : (i) Photographs and video films of the aircraft have been taken, (ii) Inspection of the aircraft is done under section 310 Cr.P.C. by the Court or an officer commissioned in this behalf, (iii) A table model of the aircraft about 10 ft long and to scale is constructed and placed at a convenient location to enable inspection by the parties and (iv) Lastly, an undertaking is filed by the airline that they shall make available a similar model aircraft from its present fleet for inspection as and when directed by the Court, if available. 10. The revision petition is disposed of in the above terms. 11. A copy of this order be given to the counsel for the parties under the signatures of the Reader of the Court, as dasti.