Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 926 (JHR)

Mukesh Kumar Singh v. State of Jharkhand

2010-09-22

JAYA ROY

body2010
JUDGMENT : JAYA ROY, J. 1. Heard the learned Counsel for the Petitioner and the learned Counsel for the State 2. Petitioner has filed this revision application against the order dated 02.07.2010 passed by the C.J.M. Dhanbad, in Tundi P.S. Case No. 18 of 2010/ G.R. Case No. 1287 of 2010 whereby the Petitioner's prayer for release of seized coal comprising of 74 Tons Raw coal and 45 Tons Soft coke, one old generator (5KVA), one old pumping set (5HP), one weighing machine, 5 Belcha and 5 Kama Bellcha, has been rejected. 3. The learned Counsel appearing for the Petitioner Mr. Rajan Raj submits that the Petitioner is Lessee of M/S Adarsh Fuel Industries situated at Asurbandh P.S. Tundi, Dist. Dhanbad and used to carry the said Industries by purchasing coal from authorised coal dealers and from coal company and the industry of the Petitioner is authorised to manufacture soft coke. Slurry, Brigetts coke etc and the industry is registered from D.I.C. Dhanbad. It is further submitted that on 7.4.2010 the informant-police party including the O/C Incharge of Bhuli O.P. conducted a raid in the factory of the Petitioner without any theft report or without any cogent material and seized the raw coal as well as soft coke and other Articles of the factory and prepared the seizure list. 4. Learned Counsel of the Petitioner has further submitted that the Petitioner is having all the papers regarding the purchase of coal vide challans, weighment slip etc and the factory of the Petitioner also used to maintain stock register, purchase register, sale register and the factory of the Petitioner is also equipped with lease, registration of CST, JST, Pollution certificate etc and the Petitioner Industry is also authorised to lift coal from coal company under linkage facility. But without considering the aforesaid documents of the Petitioner, the informant-police party seized the aforesaid Articles and lodged the present case. 5. Mr. Rajan Raj counsel for the Petitioner has further contended that as the Petitioner was not present there at the relevant time of the raid, he could not produce the relevant documents before the police party. But without considering the aforesaid documents of the Petitioner, the informant-police party seized the aforesaid Articles and lodged the present case. 5. Mr. Rajan Raj counsel for the Petitioner has further contended that as the Petitioner was not present there at the relevant time of the raid, he could not produce the relevant documents before the police party. He has further contended that the coal and the Articles which were seized, were practically under the process of the decay as the same are coming in contact with the dust and rains every day as those articles are dumped in the open sky by the police party. The Petitioner will suffer substantial loss if the seized coal and the articles are not directed to release in his favour. It is further argued that except the Petitioner, no other person has claimed the said articles and the seized coal. 6. In this regard Mr. Rajan Raj has cited a decision of the Hon'ble Apex Court reported in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, (2002) 10 SCC 283 in which the Hon'ble Apex Court has held: “7. In our view, the powers u/s 451 Code of Criminal Procedure should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep the article in safe custody; 3. if the proper panchanama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in details; and 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. 8. The question of proper custody of the seized article is raised in a number of matters. In Basavva kom Dyamangouda Patil v. State of Mysore this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In Basavva kom Dyamangouda Patil v. State of Mysore this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under: (SC Cp.361, para 4) “4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the court or should be in its custody. The object of the Code seems to be that any property which is in the control of the court either directly or indirectly should be disposed of by the court and a just and proper order should be passed by the court regarding its disposal. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. 9. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. 9. The Court further observed 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 enquire, order payment of the value of the property. 10. To avoid such a situation, in our view, powers u/s 451 Code of Criminal Procedure should be exercised promptly and at the earliest. 11. In our view, whatever be the situation, it is of no use to keep seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 7. The learned Counsel for the State opposed the prayer for the Petitioner for release of the aforesaid articles and he has contended that on receiving information when the informant with other police officers reached at about 11.40 hours to the coal depot of the Adarsh Fuel Industries at Asurband, seeing the police party, the persons present in the said coal depot fled away from the back side door. None of the employee of the management came before the police party. In side the coal depot 20 Juts begs with stolen coal was found in the depot beside the said coal i.e. 70 tons raw coal and 25 Tons of Pora coal and 20 Tons which are being process of making Pora coal. When none of the employee or manager turned up then in presence of two independent witnesses the aforesaid articles were seized by them. Further case of the prosecution is that sufficient opportunity has been given to the Petitioner to produce the documents regarding seized coal and the articles. 8. When none of the employee or manager turned up then in presence of two independent witnesses the aforesaid articles were seized by them. Further case of the prosecution is that sufficient opportunity has been given to the Petitioner to produce the documents regarding seized coal and the articles. 8. After considering submissions made by both the parties and considering the facts and circumstances of the case and view expressed by the Hon'ble Apex Court, the trial court is directed to release the coal in question seized from the coal depot and 5 Belcha and 5 Kanta Bellcha of the Petitioner immediately within the period of the fifteen days to one month from the date of this order, in favour of the Petitioner on the conditions which the trial court will consider just and proper for the said release. Regarding the other articles i.e. one old Generator (5 KVA). One old pumping set (5 HP), and one Weighing machine are also directed to release in favour of the Petitioner after verifying the ownership of the said articles and on the conditions which the trial court will consider just and proper. 9. Accordingly, the impugned order is set aside and with the aforesaid directions the revision application is disposed of.