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2015 DIGILAW 723 (JHR)

Pappu @ Nazre Ahmad v. State of Jharkhand

2015-06-26

RAVI NATH VERMA

body2015
ORDER : The petitioner in this revision application has questioned the legality of the impugned order dated 31.05.2012 passed by Judicial Magistrate, 1st Class, Dhanbad in G.R. Case No. 1176 of 2011, whereby and whereunder the application filed on behalf of the petitioner for release of the seized iron scraps, has been rejected. 2. The petitioner has been made accused in Dhanbad (Bank More) P.S. Case no. 296 of 2011 lodged on 13.04.2011 under Section 414 of the I.P.C. on the allegation that the informant, who was the Officer-in-charge of the aforesaid police station, after getting some information that petitioner is involved in illegal business of iron scrap, conducted raid in his business premises and seized the iron scraps from his godown and prepared production-cum-seizure list. 3. Learned counsel appearing for the petitioner seriously contended that even though the entire documents were produced before the Investigating Officer, to show that the petitioner is a bonafide purchaser of those scrap materials and dealing with the business of scrap materials, a report was called for by the court below from the I.O. of the case and even after being the report in favour of the petitioner, the court below without appreciating the report in right perspective rejected his prayer holding “ I am not inclined to release the aforesaid huge quantity of iron scrap materials in favour of the petitioners as the same is required during the course of evidence as material exhibits.” Learned counsel relying upon the ratio decided in a case Sunderbhai Ambala Desai Versus State of Gujarat reported in 2003 (1) JCR 153 (SC) : [2003 (4) JLJR ( SC) 135], submitted that the power under Section 451 of the Code of Criminal Procedure (in short “the Code”) should be exercised expeditiously and judiciously so that the owner of the article seized does not suffer because of its remaining unused or by its misappropriation. It was also submitted that there is no other claimant of the seized scrap, hence the order impugned is fit to be set aside and a direction may be given to the court concerned to release the scarp in favour of the petitioner. 4. It was also submitted that there is no other claimant of the seized scrap, hence the order impugned is fit to be set aside and a direction may be given to the court concerned to release the scarp in favour of the petitioner. 4. Contrary to the aforesaid submission, learned counsel representing the State submitted that the court below after considering the materials available on record and the fact that a huge quantity of scraps were recovered including the scrap of B.C.C.L., has rightly rejected the prayer for release of those scraps but fairly submitted that there is no other claimant and the scraps were seized from the godown of the petitioner. 5. Before appreciating the submissions of the counsels, a reference of Section 451 of the Code is necessary for the proper adjudication of the matter as the said Section clearly empowers the Court to pass appropriate order with regard to the property. Section 451 reads as follows:- “451. Order for custody and disposal of property pending trial in certain cases.- When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this Section, “property” includes- (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.” 6. The question of property and custody of the seized materials are raised in number of matters and the Hon’ble Supreme Court in Sunderbhai Ambala Desai Versus State of Gujarat (Supra) after considering the provisions of Section 451 of the Code observed as under:- “7. The question of property and custody of the seized materials are raised in number of matters and the Hon’ble Supreme Court in Sunderbhai Ambala Desai Versus State of Gujarat (Supra) after considering the provisions of Section 451 of the Code observed as under:- “7. 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 of 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.” The Hon’ble Supreme Court in para 21 of the aforesaid judgment has further observed as follows:- “21. However these powers are to be exercised by the concerned Magistrate with the 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 fifteen days to one month.” Apparently, at the time of seizure, the production-cum-seizure list was prepared showing different scraps. Even the Investigation Officer in his report has reported that except a small quantity of scraps of BCCL, all other scraps were found to be genuinely purchased and the Department of Commercial Taxes informed that the firm of the petitioner is registered with the said department for dealing with the business of sale and purchase of iron and scraps and also ferrous and non-ferrous materials. 7. Regard being had to the facts and circumstances stated above, I find merit in the submission of the learned counsel for the petitioner. Accordingly, this revision application is, hereby, allowed and the impugned order of the court below is set aside. 7. Regard being had to the facts and circumstances stated above, I find merit in the submission of the learned counsel for the petitioner. Accordingly, this revision application is, hereby, allowed and the impugned order of the court below is set aside. The court below is directed to release the scraps in favour of the petitioner subject to his executing security bond to the value of the seized scraps after getting a panchnama of the seized articles prepared before handing over the possession of the scrap materials and the same can be used in evidence instead of its production before the Court during the trial and if the court feels necessary, evidence could also be recorded describing the nature of the property in detail.