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2013 DIGILAW 80 (PAT)

Chandrashekhar Singh v. State Of Bihar

2013-01-18

JAYANANDAN SINGH

body2013
ORDER 1. Petitioner, a transporter, has filed this writ application for a direction to the respondents to release 18 KL (18000 litres) of high speed diesel in favour of the petitioner seized by the Block Supply Officer in connection of which Barauni (Zero Mile) P.S. Case No.406/12 registered later on under Sections 413, 414 of the IPC and under Section 7 of the E.C. Act. 2. Learned counsel for the petitioner has drawn the attention of this Court to Annexure-4 a voucher issued by the Indian Oil Corporation to submit that since the diesel could not be delivered at the destination, the Indian Oil Corporation has realized the market value of the diesel from the petitioner. Learned counsel for the Corporation does not dispute that the market value of the diesel has already been deposited by the petitioner with the Corporation. 3. In view of this Annexure-4, learned counsel for the petitioner submits that now the diesel virtually belongs to the petitioner. Hence, subject to final decision in the proceeding, the diesel, which is perishable item and may get lost, should be released in favour of the petitioner. He has drawn the attention of this Court to an order passed by a Bench of this Court in identical circumstances in CWJC No.5967 of 2012 on 29.03.2012, a copy of which is annexed as Annexure-5. 4. It is not disputed that the case of the petitioner is identical to the said case. From the order it appears that this Court had directly ordered the SDJM, Begusarai in that case to release diesel in favour of the petitioner of the case subject to the result of any confiscation proceeding. 5. In the present case, as of today, petitioner has not received any notice of any confiscation proceeding. Thus the diesel stands seized only in the criminal case and is therefore in the custody of the concerned court. Hence, instead of passing order directly for release of the diesel, this Court, in view of the provisions of Section 451 read with 457 of the Cr.P.C., considers it appropriate that the Magistrate concerned should exercise powers in favour of the petitioner and on his application should pass appropriate orders. Since, due to passage of time, the quality of the diesel may get deteriorated, it will be appropriate for the Magistrate to immediately exercise his powers. Since, due to passage of time, the quality of the diesel may get deteriorated, it will be appropriate for the Magistrate to immediately exercise his powers. This order is being passed only because the substantive provision is there in the Cr.P.C. empowering the Magistrate to release articles seized and attached in a substantive criminal case pending in the Court. 6. The writ application is therefore disposed of with liberty to the petitioner to file a formal application before the concerned Magistrate under Section 451 read with 457 of the Cr.P.C. and as soon as the application is received from the petitioner he is directed to exercise powers in accordance with law taking into account the law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat [(2002)10 SCC 283] and pass appropriate orders for release of the diesel in favour of the petitioner on such reasonable terms and conditions as he may consider proper positively within two weeks from the date of filing of the application after complying with all formalities as may be required by him. Since the petitioner has no information with regard to initiation of any confiscation proceeding and there is no material on record in that respect either, the initiation of confiscation proceeding subsequently shall not come in the way of the Magistrate in exercising powers. 7. Let this order be communicated to the concerned court through fax on deposit of the cost by the petitioner.