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2013 DIGILAW 1652 (RAJ)

Shyamsundar v. State of Rajasthan

2013-09-18

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT 1. - Present petition has been filed under Section 482 Cr.P.C. to assail the order dated 20.9.2011 passed by the Additional Chief Metropolitan Magistrate, No. 2, Jodhpur, Metropolitan, Jodhpur, whereby prayer of the petitioner made under Section 457 Cr.P.C. for return of 214 tins, each weighing 15 kgs. fatty oil on supardgi was refused. 2. Aggrieved against the same, the petitioner had filed a Criminal Revision Petition Bearing No. 254/2011. The Court of District and Sessions Judge, Jodhpur Metropolitan, vide its order dated 21.8.2012 affirmed the findings given by the Metropolitan Magistrate observing that the petitioner is not entitled to return of the goods recovered on supardgi, but had further ordered that the goods be sold in auction, as they are perishable and sale proceeds be deposited in Bank. 3. Before the prayer made by the petitioner is considered, it would be necessary to give brief facts of the case: On 5.4.2011 at about 12.30 A.M. a telephonic information was received by the S.H.O. Police Station, Pratap Nagar that the petitioner in a rented Godown is engaged in making of Deshi-ghee. After informing the superior officers, a raiding party was constituted and same reached at the premises of the petitioner. At the spot, one person, namely Mool Singh son of Shri Shankar Singh was apprehended. The person apprehended disclosed that the premises belongs to Shyamsunder. The raiding party recovered 214 tins of 15 kgs. each containing fatty oil. The person, who was apprehended at the spot informed that in the vessel on the bhatti fatty oil is mixed with the coconut oil. Thereafter, as essence is mixed with the same and material, so prepared is packed as Deshi-ghee. 4. The learned Public Prosecutor for the State has referred to wrappers of various reputed companies seized from the spot, and has submitted that the Ghee was filled in the tins after pasting wrappers of reputed companies, on those tins. 5. The learned Magistrate No. 2 had refused to return of articles recovered on the ground that the fatty oil recovered will be used in making spurious Deshi-ghee. This finding has also been affirmed by the Revisional Court below. 6. Dr. 5. The learned Magistrate No. 2 had refused to return of articles recovered on the ground that the fatty oil recovered will be used in making spurious Deshi-ghee. This finding has also been affirmed by the Revisional Court below. 6. Dr. A.A. Bhansali, the learned counsel appearing on behalf of the petitioner, has vehemently contended that the Sessions Judge while refusing to return fatty oil to the petitioner has committed grave error to hold that the same be sold in the auction, as possibility cannot be ruled that fatty oil sold in auction will be recycled for same purpose for which it is refused to the petitioner. 7. Counsel for the petitioner further submitted that the petitioner is ready and willing to give undertaking that if the goods are returned, they will be only used for preparation of soap. It is contended by the learned counsel that the petitioner is running a factory of soap making, and an affidavit to this effect has also been placed on the file of this case. Counsel for the petitioner has further contended that even if auction is conducted by the public authorities, it cannot be ruled out that the goods, sold in auction will not be misused. 8. After hearing, Dr. A.A. Bhansali, the learned counsel appearing on behalf of the petitioner, who is duly assisted by Mr. Devaram, and Mr. A.R. Nikub, the learned Public Prosecutor for the State, this Court is of the view that between individual good and public good, precedent is to be given to the public good. 9. A trade of one person for profit, if endanger public health and human life, the Court will not give preference to the trade or profit of one person. It is the public health, which is to be given importance. As per the investigation carried by the Police, till today and recovery of wrappers of various reputed companies, who deal in sale of Deshi-ghee from the premises of the petitioner, a lurking fear shall always remain that if goods are released they may not be misused and cause danger to the public health. 10. Therefore, this Court will not disturb the order of Sessions Judge, whereby it has refused to return 214 tins of 15 kgs. each containing fatty oil to the petitioner. 10. Therefore, this Court will not disturb the order of Sessions Judge, whereby it has refused to return 214 tins of 15 kgs. each containing fatty oil to the petitioner. However, to balance the equities, it is ordered that the auction of the fatty oil recovered from the petitioner shall be held under the supervision of Chief Medical and Health Officer, as well as, the District Food Supplies Officer, so that the interest of the petitioner may not suffer. At time of auction petitioner will be associated by the public authorities conducting auction. The directions to associate the petitioner with auction has been given, considering the possibility that tomorrow the petitioner may be acquitted, cannot be ruled out at this stage. 11. In view of above, the present petition is disposed of. 12. Upon disposal of the main petition, the stay application, filed therewith, does not survive; the same is also disposed of.Petition disposed of. *******