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2014 DIGILAW 1218 (ALL)

MEVA LAL v. STATE OF U. P.

2014-04-16

VIJAY LAKSHMI

body2014
JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—By means of this writ petition, the petitioner has prayed for quashing of two orders first dated 19.11.2012 passed by the District Magistrate, Fatehpur and the second dated 12.3.2013 passed by Additional District and Sessions Judge, Court No. 2, Fatehpur, refusing to release the truck of the petitioner bearing No. UP-70 BT 8968 seized under Section 3/7 Essential Commodities Act. 2. Apart from praying for a writ of certiorari for quashing both the aforesaid orders the petitioner has also prayed to issue writ of mandamus commanding the respondents to release the Truck No. UP-70 BT 8968 in his favour. 3. The respondent No. 4 Zila Krishi Adhikari, District Fatehpur and respondent No. 6 Sub-Inspector Lallan Singh have filed counter-affidavits, which are on record. 4. Heard learned counsel for the petitioner and learned AGA appearing on behalf of respondents. 5. Some background facts in brief are that on 7.9.2012 at about 9-10 p.m. when the police was on patrolling duty, Truck No. UP-70 BT 8968 loaded with 400 bags of urea fertilizers of IFFCO was found standing on Marhara road near Palesar factory belonging to one Pappu @ Surya Pratap Singh. The bags of urea after being unloaded from the aforesaid truck were being loaded into a tractor trolley. When the truck Driver Lal Chandra Patel and assistant Driver Indrajeet Bhatia were enquired by the police about the loading of urea from the truck into tractor trolley, they informed that a bilty of 400 bags of IFFCO urea fertilizer was given to Om Prakash Singh in-charge of IFFCO Godown, Bindki, but he sent Pappu Singh @ Surya Prakash Singh who was unloading the aforesaid fertilizer into the tractor. The authorities were informed that the urea was being unloaded for the purpose of black marketting. FIR was lodged against Om Prakash Singh, Pappu @ Surya Pratap Singh and driver and assistant driver of the truck. Criminal case was registered and the truck alongwith urea was confiscated under the direction of Tehsildar. 6. Learned counsel for the petitioner submits that the petitioner is the valid owner of the truck. He has no concern with black marketing of urea fertilizer. Learned counsel for the petitioner has submitted that the entire prosecution story is concocted. Criminal case was registered and the truck alongwith urea was confiscated under the direction of Tehsildar. 6. Learned counsel for the petitioner submits that the petitioner is the valid owner of the truck. He has no concern with black marketing of urea fertilizer. Learned counsel for the petitioner has submitted that the entire prosecution story is concocted. The real facts are that in the night of 7.9.2012 when his Truck No. UP-70 BT 8968 was going towards IFFCO Bindki Godown, in the way at Marhara road, the truck got punctured and the driver was told that puncture can be repaired only at Bindki. Meanwhile, Inspector Lallan Singh (respondent No. 6) reached there alongwith one Constable Rajan Singh and enquired about the truck. He started demanding illegal gratification and on refusal, got a false and fictitious FIR registered resulting in confiscation of his truck. 7. Learned counsel for the petitioner has contended that according to the FIR when the truck was seized the bags of urea were found being unloaded from truck into a tractor trolley but neither the tractor trolley was seized nor it has been mentioned as to how many bags of urea were found loaded on the tractor-trolley and how many bags were remained in the truck. The truck is still standing in the premises of police station loaded with 400 bags of urea. Learned counsel has submitted that all these facts clearly show that the entire story has been manipulated by the Sub-Inspector. After knowing that his truck has been kept at P.S. Bindki, Fatehpur, the petitioner moved an application for its release but the learned District Magistrate without any sufficient ground rejected the release application of the petitioner by the order impugned dated 19.12.2012. Against the order passed by the District Magistrate, the appeal No. 113 of 2012 was filed by the petitioner before District & Sessions Judge.The District & Sessions Judge also dismissed his appeal by order dated 12.3.2013. Against the order passed by the District Magistrate, the appeal No. 113 of 2012 was filed by the petitioner before District & Sessions Judge.The District & Sessions Judge also dismissed his appeal by order dated 12.3.2013. The petitioner had no knowledge that the driver of the truck has done any illegal act so there was no “mensrea” on his part but in both the impugned orders, there is not even a whisper about the fact that the petitioner had any knowledge that the driver has done any illegal act.The petitioner is not named as an accused in the FIR, he is ready to comply with the conditions imposed by the authority concerned so his petition be allowed and the respondents be directed to release his Truck No. UP-70 BT 8968. 8. Per contra, learned AGA has opposed the petition and has submitted that both the Courts below have passed a legal order which are not liable to be set aside. 9. After hearing learned counsel for the petitioner and learned AGA for the State, this Court is of the view that the instant writ petition deserves to be allowed for the following reasons :. 10. The impugned order shows that there is no dispute regarding the fact that petitioner is the owner of Truck No. UP-70 BT 8968. The District Magistrate has refused to release the truck only on the ground that the truck concerned is the case property. Learned appellate Court has also dismissed the criminal appeal filed by the owner of the truck (petitioner) on the same ground. It appears that both the Courts below, while passing the impugned order have become oblivious of the well-settled legal proposition, laid down by Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai and C.M. Mudaliar v. State of Gujarat, 2003 (1) JIC 615 (SC), in which the Apex Court has observed as under : “In police station premises seized vehicles are kept unattended and all those vehicles become junked day by day. There is no use to keep such seized vehicles at the police station for a long period and the Magistrate should pass appropriate orders immediately for the release of those vehicles after taking appropriate bond and guarantee for the return of the said vehicles if required by the Court at any point of time” 11. There is no use to keep such seized vehicles at the police station for a long period and the Magistrate should pass appropriate orders immediately for the release of those vehicles after taking appropriate bond and guarantee for the return of the said vehicles if required by the Court at any point of time” 11. The Hon’ble Apex Court has directed the Magistrate to follow the procedure provided under Section 451 and Section 457 Cr.P.C. regarding seized property by observing as under : “In our view, the powers under Section 451 Cr.P.C. 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 panchnama before handing over possession or 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 detail; 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.....” “We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station in any case for not more than 15 days to one month.” 12. The facts of the case in hand show that the truck of the petitioner was seized on 7.9.2012 and it is still standing in the premises of Police Station Bindki, District Fatehpur unattended getting junk day by day, which situation is in clear violation of the law laid down by Sunderbhai Ambalal Desai (Supra) case cited above. 13. No purpose is going to be served in keeping the truck remain at police station hence the writ petition is allowed. 14. The order dated 19.11.2012 passed by the District Magistrate, Fatehpur and the order dated 12.3.2013 passed by Additional District and Sessions Judge, Court No. 2, Fatehpur are hereby quashed. 15. 13. No purpose is going to be served in keeping the truck remain at police station hence the writ petition is allowed. 14. The order dated 19.11.2012 passed by the District Magistrate, Fatehpur and the order dated 12.3.2013 passed by Additional District and Sessions Judge, Court No. 2, Fatehpur are hereby quashed. 15. The respondents are directed to release the Truck No. UP-70 BT 8968 in favour of the petitioner immediately after taking appropriate bond guarantee, security and undertaking to produce the said vehicles as and when required at any point of time by the Court concerned. So far as 400 bags of IFFCO urea is concerned, no purpose is going to be served in retaining those urea bags at the premises of police station in the open therefore the respondents are directed to dispose of the urea bags according to the guide lines given by the Apex Court in Sunderbhai Ambalal Desai case (Supra). ————