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2007 DIGILAW 85 (CAL)

KAMAL KUMAR DAS v. STATE OF WEST BENGAL

2007-02-14

SAILENDRA PRASAD TALUKDAR

body2007
( 1 ) PETITIONERS by filing the instant application under Section 482, Section 397 and Section 401 of the Criminal Procedure Code sought for quashing of the charge-sheet being No. 67 of 2005 dated 29. 06. 2005 under Sections 413 and 414 of the Indian Penal Code relating to Magra Police Station case No. 48 of 2005 dated 24. 04. 2005. ( 2 ) GRIEVANCES of the petitioners, as ventilated in the instant application, may briefly be stated as follows : -One Anil Kumar Saha, Sub-Inspector of Police, Magra Police station lodged a complaint on 24. 04. 2005 wherein he alleged that the two vehicles being WB 15-0405 and WB15a-1792, both loaded with stolen raw coal were waiting on Byepass Road near Gaja ghonta. He got secret information in this regard and found the said two vehicles were parked by the side of the road. The drivers of the said vehicles could be apprehended after a chase and on being asked to produce relevant documents in support of such transportation of coal, they failed to produce the same. They told that such coal was taken from one, Kamal Das of Hosenabad, who was habitually dealing with such stolen raw coal at Hosenabad depot. The said drivers were arrested and the two vehicles loaded with coal were seized by Police authorities. On the basis of such written complaint the case being Magra P. S. Case No 18 of 2005 dated 24. 04. 2005 under Sections 413 and 414 of Indian Penal Code was started. ( 3 ) THE petitioners claimed that they were in no way connected with the commission of the said offence and the coal was being carried with valid documents as would be evident from the challans issued by m/s. Maa Tara Coal and Coal Dust Traders. The said two vehicles were proceeding towards Rajeswaripur, Magra, Hooghly for supply to M/s. Rupantar Brick Field. ( 4 ) THE petitioner No. 1 is running the business of coal and coal dust under the name and style of M/s. Maa Tara Coal and Coal Dust Traders. He has been running the said business with all valid documents and also been paying Sale-Tax and Value Added Tax for the purpose of dealing with the said business of coal and coal dust. He has been running the said business with all valid documents and also been paying Sale-Tax and Value Added Tax for the purpose of dealing with the said business of coal and coal dust. The petitioners were never implicated earlier in respect of such offences under Sections 413/414 of indian Penal Code and there could be no reason for describing them as habitual offenders. After completion of investigation concerned Police authority submitted charge-sheet No. 67/05 dated 29. 06. 2005 in connection with the said Criminal case for the offences under Sections 413/414 of indian Penal Code. The petitioners were granted anticipatory bail by the high Court by an order dated 29. 07. 2005 in C. R. M. No. 5752 of 2005. The seized trucks were also released. There was no material in order to establish that the petitioners were ever arraigned as accused persons for such offence earlier. ( 5 ) BEING aggrieved by and dissatisfied with the said charge-sheet dated 29. 06. 2005 the petitioners approached this Court with a prayer for quashing of the same. ( 6 ) LEARNED Counsel for the petitioners submitted that the investigating Authority could not produce any iota of material so as to suggest that the coal, which was loaded in the two vehicles, was stolen property. Attention of the Court was drawn to Section 379 of Indian Penal code which prescribes the punishment for the commission of the offence of theft. Section 378 defines the offence of theft. In order to constitute the offence of theft it is necessary on the part of the Investigating Authority to establish (a) that there was dishonest intention to take property, (b) that the property was moveable property, (c) that it was taken out of the possession of another, (d) that it was taken without the consent of that other, and (e) that there was removal of the property in order to accomplish the taken of it. ( 7 ) MR. Mukherjee, as learned Counsel for the petitioners, in course of his argument laid emphasis on the expression "habitually dealing in stolen property" in Section 413 of Indian Penal Code. It was then submitted that there could be no material worth mentioning so as to indicate that the present petitioners/accused persons voluntarily assisted in concealing or disposing of or making away with property which they knew or had reason to believe to be stolen property. It was then submitted that there could be no material worth mentioning so as to indicate that the present petitioners/accused persons voluntarily assisted in concealing or disposing of or making away with property which they knew or had reason to believe to be stolen property. ( 8 ) IN response to this, learned Counsel for the opposite party-State referring to the materials in the Case Diary submitted that the petitioners could not produce any valid document in respect of the coal which were in the seized trucks. According to learned Counsel for the opposite party-State there are statements made before the Investigating Authority which would indicate that it was a regular practice to transport such coal from the coal depot of Kamal Das. Referring to the materials in the Case Diary, it was contended on behalf of the opposite party-State that the driver of the seized vehicles on being asked could not produce any valid document in respect of the coal loaded in the said vehicles and further stated that such coal was taken from the coal depot of one, Kamal Das, who runs clandestine business of raw coal. ( 9 ) LEARNED Counsel for the petitioners inviting attention of the Court to the definition of 'theft' and 'stolen Property' submitted that there is no material worth mentioning so as to constitute an offence either under section 413 of Indian Penal Code or Section 414 of Indian Penal Code. ( 10 ) REFERENCE was made to the decision of House of Lords in the case of Anderton v. Ryan, reported in 1985 (1)AC 560; Regina v. Shivpuri, reported in 1987 (1) AC 1; and the case of Haughton v. Smith, reported in 1975 AC 476. ( 11 ) RELYING upon the said decisions it was strongly contended on behalf of the petitioners that in absence of material indicating that the property being coal seized in connection with the present case was stolen, the entire prosecution case falls like a house of cards. ( 12 ) IT cannot be denied that the point raised on behalf of the petitioners deserves proper and effective consideration. Question now arises as to how far this Court within the scope and ambit of an application under Section 482 of Criminal Procedure Code can entertain such grievance. ( 12 ) IT cannot be denied that the point raised on behalf of the petitioners deserves proper and effective consideration. Question now arises as to how far this Court within the scope and ambit of an application under Section 482 of Criminal Procedure Code can entertain such grievance. The principles for quashing of a criminal proceeding in response to an application under Section 482 of Criminal Procedure Code are well settled. What is important for the Court to see as to whether the facts and materials disclosed in course of investigation constitute any cognizable offence or not. It is for the Court to further assess as to whether such prosecution case on the basis of the materials in the C. D, suffers from any latent illegality or inherent absurdity. ( 13 ) IT is perhaps needless to mention that if there is no evidence to show that the certain property has been actually stolen, there cannot be an offence under Section 411 of Indian Penal Code. The definition of stolen property in Section 410 of Indian Penal Code is clear. It is the property, the possession whereof has been transferred by theft, or by extortion, or by robbery and property which has been criminally misappropriated. ( 14 ) HERE in the Case Diary produced on behalf of the opposite party state, there is not an iota of material to satisfy that said test. Though the decisions, of the House of Lords, as referred to by learned Counsel for the petitioners, relate to the findings of their Lordship in connection with hearing of appeal the legal proposition very well supports the stand of the present petitioners. ( 15 ) AFTER due consideration of relevant facts and materials this Court finds it difficult to brush aside the grievances ventilated on behalf of the petitioners and in absence of even prima facie material indicating that the coal seized in connection with the investigation of the present case was a stolen property within the meaning of Section 410 of the Indian Penal code, there could be no justification for submitting charge-sheet under sections 413/414 of Indian Penal Code. ( 16 ) IN such circumstances, the present application being C. R. R. No. 3752 of 2005 be allowed. Charge-sheet No. 67 of 2005 dated 29. 6. 2005 relating to Magra P. S. Case No. 48 of 2005 dated 24. 4. 2005 be quashed. ( 16 ) IN such circumstances, the present application being C. R. R. No. 3752 of 2005 be allowed. Charge-sheet No. 67 of 2005 dated 29. 6. 2005 relating to Magra P. S. Case No. 48 of 2005 dated 24. 4. 2005 be quashed. Department is directed to supply xerox certified copy of this order, if applied for, to the learned Counsel for both parties after due compliance with legal formalities.