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2006 DIGILAW 1025 (PAT)

Manoj Kumar @ Manoj Kumar Gupta v. State Of Bihar

2006-11-08

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard the parties. 2. The present application has been filed by the petitioner for quashing the orders of the Chief Judicial Magistrate as affirmed in revision by the Additional Sessions Judge I, Araria by which the petitioners prayer seeking release of Indian coins which were seized from his custody have been refused. With consent of parties, the present application is being disposed of at the stage of admission itself as the facts are not in controversy. 3. The petitioner was apprehended with 250 Kgs. of current Indian coins packed in gunny bags which he was taking alongwith him in a public carrier bus. The police seized the said coins and alleged that he was taking the said coins to be sold in Kolkata whereafter the coins would be melted and used otherwise. On seizing the aforesaid coins, a substantive case under Sec. 489 of IPC was instituted. Petitioner was taken into custody. After release from custody on bail, petitioner filed an application for release of the seized coins in his favour. The learned Chief Judicial Magistrate, before whom the matter was pending, refused the release on the ground that investigation was pending. The petitioner went in revision before the Sessions Judge. His application was ultimately rejected by the learned Additional Sessions Judge I, Araria. The first information report, the seizure list, the order of the learned Chief Judicial Magistrate and the order passed by the revisional Court have been annexed. The ground for rejecting the revision application was that the petitioner had intended to carry the coins from Araria to Kolkata for sale consequent whereto they were likely to be melted and used otherwise. On the aforesaid facts, the learned Judge was persuaded to hold that an offence under Sec. 489 of IPC is made out and, accordingly, refused to set aside the order of the learned Chief Judicial Magistrate and, thus, denied the release of the coins in favour of the petitioner. It is not in dispute that the coins were recovered from the petitioner. It is not in dispute that pursuant to investigation, charge-sheet under Sec. 489 of IPC has been submitted and on such charge-sheet being submitted, the learned Chief Judicial Magistrate has been pleased to take cognizance of an offence punishable under Sec. 489 of IPC and the trial is pending. 4. It is not in dispute that pursuant to investigation, charge-sheet under Sec. 489 of IPC has been submitted and on such charge-sheet being submitted, the learned Chief Judicial Magistrate has been pleased to take cognizance of an offence punishable under Sec. 489 of IPC and the trial is pending. 4. Having heard the counsel for the petitioner and the learned Government Advocate No. IV. I find that the actions of the police as well as the impugned orders are unsustainable in fact and in law and are liable to be quashed. 5. From the facts which are not in dispute and as noted above, the only thing that can be alleged is that the petitioner collected current Indian coins with the intention to take it to Kolkata and sell it whereafter the coins could be melted and used otherwise. To my mind accepting this allegation of the police in its entirety, I fail to find what offence punishable in law has been committed. 489. Tampering with property mark with intent to cause injury.Whoever removes, destroys, defaces or adds to any property mark, intending or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 6. A reference to Sec. 489 of IPC above would show that an offence of that nature is in relation to an act of removing, destroying, defacing any property mark. Firstly, currency coins are not property mark and secondly it is the act of destroying, defacing etc. that is punishable. Admittedly, in the present case, it is not a property mark and further no act of defacing, destroying had yet been done. 7. It is then pointed out that by virtue of Sec. 511 of IPC, it could be said that there was an attempt to deface, destroy currency. To my mind, the argument is again misconceived for the simple reason that from the facts stated above what can at best be alleged that there was a preparation to attempt to commit an offence if any, what is punishable with the aid of Sec. 511 of IPC is an attempt and not preparation. To my mind, the argument is again misconceived for the simple reason that from the facts stated above what can at best be alleged that there was a preparation to attempt to commit an offence if any, what is punishable with the aid of Sec. 511 of IPC is an attempt and not preparation. The position in law in this regard has been well settled by the judgment of the Apex Court in the case of Malkiat Singh and Another vs.The State of Punjab since reported in AIR 1970 Supreme Court 713: As a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguising between acts which are merely preparatory to the commission of a crime, and those which are sufficiently to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it.The test for determining whether the act of the accused person consti tuted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. (Para 4) 8. To my mind under Indian Penal Code or any other law such a preparation to commit an offence if any is not an offence by itself. (Para 4) 8. To my mind under Indian Penal Code or any other law such a preparation to commit an offence if any is not an offence by itself. My attention then has been drawn to Sec.230 to Chapter XII of the Indian Penal Code dealing with coins. A reference to various Sections under Chapter XII of the Indian Penal Code would show that what is an offence is counterfeiting Indian coins. Admittedly, in the present case, there is no such allegation whatsoever. 9. It would, thus, be seen that by no stretch of imagination any offence can be said to have been committed much less a cognizable offence and it is a clear case in which the police mala fide and arbitrarily exercised its power. In fact, the prosecution itself is a blatant abuse of process of Court. In the circumstances aforesaid, I am left with no alternative but to quash the seizure of the coins in question as well as the order of the learned Chief Judicial Magistrate and the learned Additional Sessions Judge I refusing to release the coins in favour of the petitioner. It is hereby directed that the seized coins as per seizure list be released to the petitioner forthwith preferably within a period of fifteen days from the submission of copy of this order. 10. This writ application is, thus, allowed.