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1999 DIGILAW 341 (MP)

State of M. P. v. Mohan Sales

1999-05-03

R.P.GUPTA

body1999
JUDGMENT The State of Madhya Pradesh has felt aggrieved from the appellant order dt. 25.7.89 passed by Additional Sessions Judge, Khurai in Cr. Appeal No. 57/89 arising from Misc. Cr. Case No. 26/88, in which order dt. 1.4.1989 passed u/s 454 CrPC by Judicial Magistrate First Class, Khurai was challenged and was modified. The short facts are that on 26.3.1985 foreign liquor in 33600 nips belonging to the respondents was seized and they were tried for offence u/s 34(a) of the M.P. Excise Act vide Criminal Case No. 141/85. In that case the Magistrate ordered forfeiture of the entire liquor vide order dated 20.11.1985. However, the present respondents approached the Sessions Court in Cr. Appeal No. 138/85 which was decided by the IInd Additional Sessions Judge, Sagar on 31.4.1987 and order of forfeiture of the liquor was set aside and it was directed that the entire liquor be returned to the then appellants (present respondents). The State's appeal to the High Court being Appeal No. 843/87 failed on 1.2.1988. In compliance to this order of return of the liquor the State Authority could not return 11259 nips. It was alleged by the State Authority that 11180 quarters were stolen and 79 were got broken and destroyed. A police report i.e. first information report No. 77/87 was lodged at Sagar. The present respondents applied for price of those quarters of liquor if that much liquor was not returned. The rest of the liquor had also been returned. This petition was heard as M.Cr.C. No. 26/88 and the Magistrate directed that the price of liquor which was admittedly Rs. 73, no/- paise 54 be returned along with interest at the Bank rate from 21.4.1987. The State approached the Sessions Court vide Cr. Appeal No. 57/89 and the learned Additional Sessions Judge, Khurai passed the present impugned. order on 25.7.89 holding that the order of payment of Rs. 73,720/- paise 54 was justified as it was the admitted price of the loss of alleged stolen liquor, but, the order regarding awarding of interest was found to be unjustified and was set aside. So partly appeal of the State was accepted. The respondents have not challenged that part of the order. The State has felt still dissatisfied with the order of payment of Rs. 73,720/- paise 54 as price of the liquor, which they could not return to the respondents. So partly appeal of the State was accepted. The respondents have not challenged that part of the order. The State has felt still dissatisfied with the order of payment of Rs. 73,720/- paise 54 as price of the liquor, which they could not return to the respondents. The Supreme Court has observed in case of Smt. Basava Kom Dyamogouda Potil v. State of Mysore and another cited at AIR 1977 SC 1749 that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. It was a case where property was produced before the Magistrate and it was directed to be kept in custody of the police, but, they were stolen. It was found that the appellants were entitled to the ornaments and since the State could not return the ornaments and it was not shown that any due care was taken, the State should pay the price of the ornaments to the claimants. Based on this, learned counsel for the State has argued that the test applied should be whether the State has taken due care of the property and inspite of due care it was lost or it was stolen or destroyed. If so the State's liability for return of the price of the goods should not be fixed. The argument is untenable and cannot be accepted. It is the duty of the State when the goods are forfeited and given to it and the forfeiture order is challenged in higher Court, that they should keep the goods with due care and merely saying that something may have been stolen from godown or may have been destroyed although there was Chowkidar present, does not absolve the State from return of the price of the goods. Whether it was due to carelessness and inspite of carefulness of the State, loss has occurred to the claimants. The State must make good that loss. This Court finds no infirmity in the impugned order of the learned Additional Sessions Judge. In fact proper relief was granted to the State by setting aside the part of the order of the Magistrate which allowed interest. The State must make good that loss. This Court finds no infirmity in the impugned order of the learned Additional Sessions Judge. In fact proper relief was granted to the State by setting aside the part of the order of the Magistrate which allowed interest. There is no merit in this revision petition. The same is dismissed. The State shall pay cost of this revision petition to the respondents which is fixed at Rs. 5,000/-.