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2012 DIGILAW 733 (JHR)

Sanjay Kumar Singh v. State of Jharkhand

2012-05-10

H.C.MISHRA

body2012
Order 1. Heard learned counsel for the petitioner and learned counsel for the State. Also perused the LCR called for in this case. 2. Petitioner is aggrieved by the order dated15.7.2009 passed by Sri Rakesh Kr. Mishra, learned Judicial Magistrate, 1st Class, Hazaribagh in T.R. No.767 of 2007 / G.R. No. 2434 of 2004, whereby the application filed by the petitioner for release of the coal seized in connection with Ramgarh P.S. Case No.350 of 2004, corresponding to G.R. No.2434 of 2004, was rejected by the Court below. 3. It appears that one truck loaded with coal was recovered by the police and the petitioner, who was driver of the said truck, was also apprehended. As no document could be produced by the petitioner, Ramgarh P.S. Case No.350 of 2004, corresponding to G.R. No.2434 of 2004 was instituted against the petitioner and other co-accused for the offence under Section 414, 120B/34 of the I.P.C., 33 of the Indian Forest Act and Section 30(ii) of Coal Mines Act and the coal and truck were seized by the police. 4. It also appears that a confiscation proceeding was initiated for the seized coal and truck, in Confiscation Case No.4 of 2005 and by order dated 25.3.2009 passed therein, the said confiscation proceeding was dropped, as the involvement of the petitioner in the offence could not be found and it was also found that the documents subsequently produced with respect to coal were found to be genuine. It further appears that the petitioner faced the trial in the said Ramgarh P.S. Case No.350 of 2004, corresponding to G.R. No.2434 of 2004 / T.R. No.767 of 2007 and by Judgment dated 11.5.2007 passed by learned Judicial Magistrate, 1st Class, Hazaribagh, the petitioner was acquitted of the charges. The petitioner filed application for release of coal in his favour, but the application of the petitioner was rejected by the order dated 15.7.2009 passed by Sri R. K. Mishra, Judicial Magistrate, 1st Class, Hazaribagh in T.R. No.767 of 2007, taking into consideration the fact that no application was filed by the petitioner for release of the coal in the confiscation proceeding, even though the same was dropped as the petitioner claimed to have bonafide papers of the coal, rather the application was filed after the lapse of about five years, which creates doubt about the genuineness of the documents. The Court below also took into consideration the fact that in his statement recorded under section 313 of the Cr.P.C., during trial, the petitioner had not claimed ownership over the coal. The Court below has also found that the coal is perishable item, which is bound to decay if kept in open, due to rain, wind etc. and accordingly, the application filed by the petitioner was rejected. 5. Learned counsel for the petitioner submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law, in as much as, admittedly the coal was seized from the possession of the petitioner, and on the basis of the documents produced by the petitioner, the confiscation proceeding was dropped by order dated 25.3.2009 passed in Confiscation Case No.4 of 2005, which has been brought on record as Annexure–5 to this application. Learned counsel also submitted that the petitioner was also acquitted the charges in the trial by the Trial Court. As such, there is no apparent reason for not releasing the coal in favour of the petitioner. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law and is fit to be set aside. 6. Learned counsel for the State on the other hand, has opposed the prayer submitting that the Court below has found that the coal was a perishable item and taking into consideration the fact that the application was filed after five years, the application for release of the coal was rightly rejected by the Court below doubting the genuineness of the documents produced by the petitioner. 7. Having heard learned counsels for both the sides and upon going through the record, I find that it is an admitted fact that the coal was seized from the possession of the petitioner. Admittedly, on the basis of the documents produced before the competent authority, the confiscation proceeding was dropped, taking into consideration the fact that the documents produced by the petitioner were found to be genuine, as is apparent from the order passed in the confiscation proceeding, which has been brought on record as Annexure–5. Admittedly, on the basis of the documents produced before the competent authority, the confiscation proceeding was dropped, taking into consideration the fact that the documents produced by the petitioner were found to be genuine, as is apparent from the order passed in the confiscation proceeding, which has been brought on record as Annexure–5. It is also apparent that the petitioner has been acquitted of the charges after the trial in the said Ramgarh P.S. Case No.350 of 2004 corresponding to G.R. No.2434 of 2004 / T.R. No.767 of 2007 by Judgment dated 11.5.2007 passed by the Trial Court. The LCR shows that the Court below had been informed that no appeal had been filed by the State either against dropping of the confiscation proceeding by order dated 25.3.2009 passed in Confiscation Case No.4 of 2005, or against the acquittal of the petitioner by Judgment dated 11.5.2007 passed by the Trial Court. Further, there is nothing in the LCR to suggest that the seized coal was kept in open and had decayed due to rain, wind etc. There cannot be any presumption, in absence of any material on record that the seized coal had decayed. In view of these facts, I am of the considered view that there could not be any reasonable explanation to refuse the release the coal in favour of the petitioner. I find that the application of the petitioner for release of the coal has been rejected by the Court below on hyper technical grounds, which cannot be sustained in the eyes of law. 8. As such, the impugned order dated 15.7.2009 passed by Sri Rakesh Kumar Mishra, learned Judicial Magistrate, Hazaribagh in T.R. No.767 of 2007/ G.R. No.2434 of 2004, is hereby, set-aside and the Court below is directed to pass order afresh in accordance with law, taking into consideration the facts that the coal was seized from the possession of the petitioner and documents relating to coal were found to be genuine, as is apparent from the order passed by the competent authority in Confiscation Case no.4 of 2005, as also in view of the fact that the petitioner has been acquitted of the charges in the trial and perhaps, there is no other claimant of the coal in question. 9. Let the LCR called for in this case be sent back forthwith. This application is accordingly allowed.