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2011 DIGILAW 991 (JHR)

Raj Chouhan v. State of Jharkhand

2011-11-11

POONAM SRIVASTAV

body2011
ORDER By the Court.-Heard counsel for the petitioner and also counsel appearing on behalf of the State. The order impugned in the instant writ petition is dated 2.7.2009 passed by the learned Sessions Judge. Dhanbad in Cr. Rev. No. 174 of 2009 confirming the order of Magistrate dated 23.5.2009 in G.R. No. 138 of 2008. 2. 23 tonnes of coal were loaded in a truck, bearing registration No. JH-II-A-4392. The allegation is at the time of seizure of the truck loaded with coal. no document could be produced at the behest of the accused. Subsequently, during the continuation of the investigation, an application was moved for release of the coal along with some certified documents to substantiate its ownership which was rejected by the Chief Judicial Magistrate, vide order dated 13.1.2009. This order was challenged in Cr.Rev., but the same stood dismissed by the learned Sessions Judge for the reason that investigation was in continuation, therefore, the Court was not inclined to release the coal during the pendency of investigation. However, it was left open that after submission of charge-sheet, the petitioner will be at liberty to approach the Court at a latter date. Hence another application was moved which was dismissed, vide order dated 23.5.2009. The order was challenged in Cr. Rev. No. 174 of 2009. The revisional Court has once again refused the prayer for release of the coal on the ground that the accused/petitioner was not able to produce any document at the time of seizure. Charge-sheet is submitted and a number of witnesses have supported the prosecution case in the statement under Section 161. Cr PC. 3. After hearing the counsel on behalf of the petitioner as well as the State counsel at length and on consideration of the fact that the seized article is lying in custody since a longtime and is a perishable item. Evidently, it is a national loss and cannot be put to use by anyone. The trial is still continuing and it is not known as to how long the trial will continue. 4. Taking into consideration such a circumstance where articles seized by the police and are subject matter of criminal case. Evidently, it is a national loss and cannot be put to use by anyone. The trial is still continuing and it is not known as to how long the trial will continue. 4. Taking into consideration such a circumstance where articles seized by the police and are subject matter of criminal case. The Apex Court adopted a view and directed the State to release the goods in case there is no other claimant and the applicant is able to satisfy by some document or by other evidence and aspects that he is the rightful claimant. Apart from it, if the item is perishable and someone comes forward to take custody, the goods may be released after adopting safety measures such as security, indemnity bonds. undertaking etc. that the goods will be produced at the time of trial as and when required or alternatively the Court shall take steps to get the articles photographed and record evidence about the 'case property' which can be used at a latter date during the trial. These directions were given by the Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638 . Paragraphs-8. 9 and 10 of the said judgment is quoted below. "8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basavva Kom Dyamangouda Patil v. State of Mysore and another, (1977) 4 SCC 358 , 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 :- "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. 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 sought 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. 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 taker 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. 10. To avoid such a situation, in our view, powers under Section 451, Cr.P.C. should be exercised promptly and at the earliest.” 5. In view of the directions of the Apex Court, I am of the considered view that the Chief Judicial Magistrate, Dhanbad shall release 23 tonnes of coal in favour of the petitioner after taking indemnity bonds and also taking steps to ensure that the trial is not hampered on account of the release. In view of the directions of the Apex Court, I am of the considered view that the Chief Judicial Magistrate, Dhanbad shall release 23 tonnes of coal in favour of the petitioner after taking indemnity bonds and also taking steps to ensure that the trial is not hampered on account of the release. The counsel on behalf of the petitioner undertakes to furnish bonds equivalent to the property sought to be released. The documents shall be kept on record to be used at a latter date. The entire exercise is to be carried out by the Chief Judicial Magistrate. Dhanbad, within a period of four weeks from the date an application along with a certified copy of this order is produced before him. 6. With the aforesaid observations/directions, the writ petition stand finally disposed of. Petition disposed of ...