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2019 DIGILAW 62 (MAN)

State of Manipur v. Wahida

2019-09-18

M.V.MURALIDARAN

body2019
JUDGMENT : M.V. Muralidaran, J. 1. Heard Mr. H. Samarjit, learned Public Prosecutor appears for the petitioner and Mr. M.I. Sharma, learned counsel appears for the respondent. Brief Case of the Petitioner: 2. On 31.05.2018 at 3.00 pm the complainant namely Sub Inspector Th. Joy Martin of Kakching P.S. lodged a written report to the OC. Kakching P.S. stating that on 14.5.2018 cordon and search operation was conducted at Sora area by a joint team of Kakching Police Station and CDO/TBL. Kakching District led by Dy. S.P. (Ops) Y Premjit Singh. During the search operation, two suspected stolen Creta Cars bearing Regd. No. MNO7D 3449 and MNO7D 2530 were picked up and brought to Kakching P.S. for investigation. On verification, it was found that the vehicle registration certificates issued by District Transport Officer, Ukhrul of (i) Creta bearing Regd. No. MNO7D 3449, Engine No. D4FBEM107688 Chasis No MALC381 UIMEM027251 the ownership stands in the name of one Wahida W/o Md. Zaheruddin of Sora Makha Leikai. On examination the said Miss Wahida stated that her husband bought the vehicle from one Md. Feroz of Poubitek, Thoubal District on payment of Rs. 12,00,000/- in cash. However, she was not able to produce any relevant documents of the vehicle other than the R.C. Book and (ii) Creta bearing Reg. No. MN07D 2530 engine No. 04FBGM916481 Chassis No. MALC381ULGM978414 the ownership stands in the name of one Thangkholet Haokip, S/o. (L) Jamkhomang Haokip of Mulam Village, P.O. & P.S. Litan, Ukhrul District and present owner M.V. Sikandar Ali, S/o. Md. Tayeb Ali of Sora Awang Leikai, he stated that the vehicle was bought from one Thangkholet Haokip S/o. (L) Jamkhomang Haokip of Mulam Village P.O & P.S. Litan, District Ukhrul by executing a sale deed on payment of Rs. 8,50,000/- in cash. However, he failed to produce any relevant documents other than one fake sale deed and RC Book of the vehicle. Accordingly on 22.5.2018, a W/T message was sent to DTO Ukhrul for the genuineness of the aforementioned vehicles, but no response from DTO Ukhrul has been received till date. Further, another W/T message was sent to O.C. Litan P.S. on the same day to verify whether the vehicle No. 2 Creta bearing Regd. No. MNO7D 2530 was sold by Thangkholet Haokip S/o. (L) Jamkhomang Haokip of Mulam Village to the present owner M.V. Sikandar Ali S/o. Md. Further, another W/T message was sent to O.C. Litan P.S. on the same day to verify whether the vehicle No. 2 Creta bearing Regd. No. MNO7D 2530 was sold by Thangkholet Haokip S/o. (L) Jamkhomang Haokip of Mulam Village to the present owner M.V. Sikandar Ali S/o. Md. Tayeb Ali of Sora Awang Leikai. On 25.5.2018 a W/T message was received from O.C. Litan P.S. to the effect that Mr. Thangkholet Haokip, S/o. (L) Jamkhomang Haokip of Mulam Village had not sold Creta vehicle to any person neither did he own any Creta vehicle. On further inquiry there is reasonable ground to suspect that the Chassis Nos. and Engine Nos of the above mentioned vehicle was tampered and registered in the Office of District Transport Officer, Ukhrul, Manipur with false documents by unknown persons. i. The sale deed of the involved vehicle is a bogus/fabricated one. ii. The witness namely Y. Iboyaima Singh, Principal, Kakching Khunou College appearing in the sale deed is a non existent person as verified from the College authorities. No one by the name of Y. Iboyaima Singh served as Principal of the said Kakching Khunou College. As verified from the concerned college authorities it is established that in fact one Smt. Mayanglambam Sharda Devi was serving as Principal of the said Kakching Khunou college during the relevant period (2015-2018). iii. While applying for registration of the vehicle for registration Wahida had also submitted a document dated 22.7.2017 purportedly issued by the State crime Records Bureau, Meghalaya, Shillong. The said document should in fact be an Interstate Police Report to be furnished on enquiry by concerned State Police. iv. Upon investigation by the authorities it has been confirmed by E-mail from Howrah RTO that WB 11G 8597 which is indicated in the Smart Card does not exist in the database of RTO Howrah. v. A discrepancy is also visible in that it is stated in the Zima petition that the vehicle was brought at Rs. 12,00000/- whereas in the sale deed it is reflected that the vehicle was sold for Rs. 4,10,000/-. vi. The Officer in charge, Kakching PS was issued a legal Notice dated 1.4.2019 annexing an order purportedly issued by the Chief Judicial Magistrate Thoubal dated 23.1.2019 passed in Cril. Misc (Z) Case No. 338 of 2018. 12,00000/- whereas in the sale deed it is reflected that the vehicle was sold for Rs. 4,10,000/-. vi. The Officer in charge, Kakching PS was issued a legal Notice dated 1.4.2019 annexing an order purportedly issued by the Chief Judicial Magistrate Thoubal dated 23.1.2019 passed in Cril. Misc (Z) Case No. 338 of 2018. The said order of the CJM is dated 23.1.2019 along with an order dated 22.11.2018 where in it is reflected that the petitioner/Zimandar had furnished necessary bonds for releasing the vehicle. vii. For that the Chassis and Engine number of the involved vehicle is suspected to have been tampered as revealed from FSL report and assignment of new Registration number to the said vehicle by DTO Ukhrul was done on the basis of false and fabricated documents. The case needs further investigation and releasing the vehicle on Zima at this stage without first determining the true and lawful owner will be miscarriage of justice. OBJECTION RAISED BY THE RESPONDENT 3. That the order is interim custody as such bar by Sec. 397 (2) Cr.P.C. i.e. Interlocutory order besides, the Custody/Zima of the said property to the respondent/petitioner is to protect and preserve during the investigation or trial and as such, custody to the Claimant/petitioner (herein as respondent) is in fact custody of the property by the Respondent/Petitioner on behalf of the Court. 4. That on 14.5.2018 the Creta 1.6 car bearing Regd. No. MN 07D/3449 Engine No. D4FBEM107688 Chassis No. MALC381UMEM027251, white in colour which stand in the name of the petitioner was seized by police and after seized the said Car, an FIR was lodged on 31.5.2018 i.e. after 17 days delay from the date of seizure and date of lodging the FIR. So there is very bad in law that after seizure of 17 days FIR was lodged, hence quashing FIR is very much called for. 5. That the seized car is not reported as stolen property till now and no one claimed as owner except the respondent. As per the police papers the person who lodged the FIR with the O.C. Kakching P.S. is Sub Inspector of John Martin he had seized the car and after 17 days he had handed over to the O.C. of Kakching P.S. with a written report. There is no explanation where S.I. John Martin kept the Car of the petitioner. As per the police papers the person who lodged the FIR with the O.C. Kakching P.S. is Sub Inspector of John Martin he had seized the car and after 17 days he had handed over to the O.C. of Kakching P.S. with a written report. There is no explanation where S.I. John Martin kept the Car of the petitioner. It is a questionable one and very much doubtful of being tampered by himself in his custody. 6. The learned counsel for the respondent vehemently opposed the submissions made on behalf of the Petitioner and supported the findings of the trial Court. 7. I have given my careful consideration to the respective submission made by the learned counsel for both parties. 8. In this context, it is appropriate to quote the relevant provision under which the applications which invited the impugned order were filed before the trial Court. Admittedly, these applications have been filed under Section 457, Cr.P.C. Section 457, Cr.P.C. provides thus;-- 457. Procedure by police upon seizure of property:-- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. The reading of the provision would make it clear that in order to invoke the provision of Section 457, Cr.P.C., three conditions are to be fulfilled:-- (1) There must be a seizure of the property; (2) Such seizure must have been reported to the Magistrate; (3) The seized property has not been produced before the criminal Court during the enquiry. The reading of the provision would make it clear that in order to invoke the provision of Section 457, Cr.P.C., three conditions are to be fulfilled:-- (1) There must be a seizure of the property; (2) Such seizure must have been reported to the Magistrate; (3) The seized property has not been produced before the criminal Court during the enquiry. The reading of the affidavit and the impugned order also would reveal that the trial Judge had invoked only Section 457, Cr.P.C. and passed the impugned order. But, it shall be pointed out, at this stage, that in a proceeding under Section 457, Cr.P.C. the Court is required to confine itself only to find out as to who is entitled to the possession of the property. The general law relating to release of vehicles seized in connection with a crime pending investigation or trial by the Magistrate, in the most universal of its dimension has been laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283. In the said decision of their Lordships the issue of release of vehicles seized in connection with crimes and parked at police stations has been dealt with and answered thus: "17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then the insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared." 9. The issue where confiscation proceedings in relation to a vehicle are pending under Section 72 of the Excise Act on the basis of a crime registered under the said Act, the Magistrate has jurisdiction under Section 451 Cr.P.C. to release a seized vehicle pending investigation or trial notwithstanding the pendency of confiscation proceedings before the Collector was dealt with by this Court in Nand vs. State of U.P., 1997 (1) AWC 41 , where it was held: "7. I think it is not proper to allow the truck to be damaged by remaining stationed at police station. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. 2 lakhs before the C.J.M., Kanpur Dehat and files a bond that he shall be producing the truck as and when needed by the criminal courts or the District Magistrate, Kanpur Dehat, and he shall not make any changes nor any variation in the truck." 10. Following the reasoning in the said decision, this Court remanded to the Magistrate for decision afresh a release application where the stand taken by the State was that pending confiscation proceedings and the vehicle should not be released by the Magistrate. Resolving the issue this Court in Rajiv Kumar Singh vs. State of U.P. and others, 2017 (5) ADJ 351 held: "9. As per the legal propositions aforesaid mentioned, admittedly, the revisionist-applicant claimed himself to be the registered owner of the seized vehicle. It also transpires that the F.I.R. was lodged against unknown person, 102 bottle of country made wine has been recovered from the vehicle but no person was arrested by the police. During investigation name of the revisionist came into the light by the police concerned and the revisionist has been bailed out by the Court concerned. It also transpires that the F.I.R. was lodged against unknown person, 102 bottle of country made wine has been recovered from the vehicle but no person was arrested by the police. During investigation name of the revisionist came into the light by the police concerned and the revisionist has been bailed out by the Court concerned. It is important to mention here that till the disposal of the application of the revisionist no any such proceedings were pending before the District Magistrate. It has also contended by the learned Counsel for the revisionist that proceedings under section 72 of the Excise Act has been started after the rejection of the application of the release of the vehicle of the revisionist. It is also the submission of the learned Counsel for the revisionist that revisionist is ready to furnish the sureties before the Court concerned. 10. Under such facts and circumstances, I am of the view that it is not proper to allow the vehicle to be damaged by keeping stationed at police station because admittedly the ownership of the vehicle is not in dispute. Neither State of U.P. claimed his ownership over the vehicle. Therefore, I conclude that the impugned order is not sustainable in the eye of law. Its requires interference, the impugned order dated 27.2.2016 is set aside and the case is remanded back to the concerned Magistrate to dispose of it as per law laid down as above. 11. Accordingly, the revision is allowed and order impugned 27.2.2016 is set aside." 11. In each of the decisions above referred through this Court was concerned with a case where the Magistrate was asked to exercise powers under Section 451 or 457 of the Code of Criminal Procedure and hereinafter referred to as the 'Code', this Court went by the general principles governing release of vehicles seized in connection with criminal cases by the police and directed release pending investigation or trial or favoured such a course of action while remanding the matter to the Magistrate. 12. 12. On Principle again, generally favoured by the Hon'ble Supreme Court that vehicles seized in connection with a crime should not be left to deteriorate at the police station, and, should be expeditiously released, so that in cases where under the law, in connection whereof the vehicle has been seized is confiscated to the state, the value and worth of it may not be lost. 13. The decision of their Lordships in Sundarbhai Ambalal Desai (supra) is the most eloquent expression of this view. 14. A careful scrutiny of the decision of their Lordships in Sundarbhai Ambalal Desai (supra) clearly indicates that the decision is an authority about the general law regarding release of vehicles seized in connection with any criminal case, but the same does not answer the issue whether in a case where there are issues relating to fraud, forged chassis number and non-identification of real owner, the powers under Section 451 or for that matter under Section 457, would still be available with the Magistrate pending confiscation proceedings under the special or the local law. In fact, the decision of their Lordship in Sundarbhai Ambalal Desai (supra) arose in the context of a challenge to an order of police remand for the petitioners granted to the prosecuting agency, where the petitioner involved in offences punishable under IPC offences. The allegations against them were that while working at different police stations, they had committed offences over a period of time involving replacement of valuable articles retained as case property by other spurious articles, misappropriation of money also seized in connection with cases, unauthorized auction of property seized and kept at the police station, pending investigation or trial. In short, the offences that engaged the attention of their Lordships were all offence to which the Code, including the provisions of Sections 451 and 457 wholesomely applied. 15. Therefore on the above said principles, I am of the considered view that, the matter should be reconsidered afresh as per the judgments cited above and the grounds raised by the state. 16. In the result: (a) This Criminal Revision Petition is allowed. (b) The order in Crl. Misc (Z) Case No. 338 of 2018 dated 23.1.2019 passed by the learned Chief Judicial Magistrate, Thoubal is set aside and the matter is remand back to the learned Chief Judicial Magistrate, Thoubal for fresh consideration. 16. In the result: (a) This Criminal Revision Petition is allowed. (b) The order in Crl. Misc (Z) Case No. 338 of 2018 dated 23.1.2019 passed by the learned Chief Judicial Magistrate, Thoubal is set aside and the matter is remand back to the learned Chief Judicial Magistrate, Thoubal for fresh consideration. (c) The learned Chief Judicial Magistrate, Thoubal is directed to dispose the case within a period of Two months from the date of receipt of this order.