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2017 DIGILAW 561 (JHR)

Nazir Hussain v. The State Of Jharkhand

2017-03-22

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. Gautam Kumar, learned counsel appearing for the petitioners and Mr. V. K. Tiwary, learned A.P.P. 2. This application is directed against the order dated 09.06.2016 passed by the learned Sub-Divisional Judicial Magistrate, Rajmahal in Barharwa P. S. Case No. 41 of 2016 whereby and where under the application preferred by the petitioners for release of their trucks bearing Registration No. WB 57C 1595 as also truck bearing Registration No. WB 93 0444 was rejected. 3. A First Information Report was instituted based on a written report by the Block Supply Officer, Barharwa that an information was received that two trucks loaded with rice from F.C.I., Godown, Sahibganj was going towards Bengal. On such information the trucks were apprehended but no documents could be produced with respect to the rice loaded on the trucks and on the basis of the allegation that rice was being transported for the purpose of black marketing the First Information Report was instituted. 4. It has been stated by the learned counsel for the petitioners that the petitioners are the rightful owner of the trucks in question. It has stated that merely a recommendation has been made for initiation of a confiscation proceeding but the same could not be a ground for refusing to release the vehicle in favour of the petitioners. It has also been stated that the vehicles in question are commercial vehicles and their condition is deteriorating day by day. 5. Learned A.P.P. has opposed the prayer made by the petitioners and has stated that pursuant to the recommendation made by the S.D.P.O., Rajmahal the confiscation proceeding has already been initiated on 15.07.2016. It has been stated that once the confiscation proceeding has been initiated the learned court below does not have the power to release the vehicle as such power vests on the confiscating authority. 6. It appears from the First Information Report that same has been instituted under Sections 420, 120B/34 of the Indian Penal Code as also under Section 7 of the Essential Commodities Act. 7. In the First Information Report nowhere it has been mentioned as to which order promulgated under Section 3 of the Essential Commodities Act has been violated so as to prosecute the petitioners under Section 7 of the Essential Commodities Act. 7. In the First Information Report nowhere it has been mentioned as to which order promulgated under Section 3 of the Essential Commodities Act has been violated so as to prosecute the petitioners under Section 7 of the Essential Commodities Act. The impugned order dated 09.06.2016 reveals that merely because a recommendation had been made by the S.D.P.O., Rajmahal for confiscating the vehicles to the confiscating authority the prayer for release of the vehicles had been rejected. No consideration has been made with respect to the ownership of the vehicles in question and merely because of proposed action likely to be taken the application for release has not been considered. Although as per the counter affidavit a confiscation proceeding has already been initiated but the same would not preclude the court in considering the release application, since the said application was filed much prior to the initiation of the confiscation proceeding. Apart from the above, the trucks are lying in police custody and are suffering from vagaries of weather. 8. Since proper consideration has not been made with respect to the release application preferred by the petitioners the impugned order dated 09.06.2016 passed by the learned Sub-Divisional Judicial Magistrate, Rajmahal in Barharwa P. S. Case No. 41 of 2016 is, hereby, quashed and set aside and the matter is remitted back to the learned court below to pass a fresh order in accordance with law expeditiously and preferably within a period of thirty days from the date of receipt/production of a copy of this order. 9. It is once again made clear that initiation of the confiscation proceeding shall not come in the way for the learned court below to release the vehicles in favour of the petitioners if it is ultimately found that the petitioners are the actual owners of the vehicles in question. 10. This application stands allowed with the aforesaid observations and directions.